Post Stephen P. Halbrook "mistakes" here.

[Glenn Vardy]

Whenever I do a Google search on this topic, Stephen P. Halbrooks "work" always pops up in the results and I'll usually have a quick look at it for a laugh. I'll get the ball rolling with the latest joke of his that I stumbled upon:

"Vermont also copied Pennsylvania in declaring "that the inhabitants of this State, shall have liberty to hunt and fowl, in seasonable times, on the lands they hold, and on other lands (not enclosed)." ....the above language clarifies the fundamental character of the right.... to Vermont's founding fathers. To "bear arms" meant to possess guns... for hunting." - THE Stephen P. Halbrook.

[Kennah]

1. Got a link?

[Glenn Vardy]

2. Google Books

Search "shall have liberty to hunt and fowl" and "Halbrook".

[Kennah]

3. Keep reading

http://www.guncite.com/journals/halvt.html

To "bear arms" meant to possess guns, pistols, and swords for defense of self and state or for hunting.

[Glenn Vardy]

4. I have read it

The military phrase "bear arms" is NOT in the article about "hunting."

[We_Have_A_Problem]

34. The term...

..."bear arms" is not purely military regardless of your continued assertions.

If you have any actual, you know, PROOF that the term is exclusively military, by all means, present it.

Otherwise, the "mistake" you're presenting is merely evidence of your own lack of understanding.

[Glenn Vardy]

42. The topic is HALBROOK'S distortion of the material he presented

If you disagree with my observation of Halbrook's "techniques," how am I wrong?

[We_Have_A_Problem]

173. Because your entire ...

...observation is on the same level of asserting 2+2=5 and claiming it is the math which is wrong.

[We_Have_A_Problem]

5. Is there a mistake?

I really don't see what you find so funny.

[Glenn Vardy]

6. An obvious one.

Maybe you don't find it funny because you bought the book? In my original post, didn't think the "mistake" needed pointing out. But even now that it HAS been pointed out, you still can't see it.

[petronius]

7. Those are some carefully placed ellipses there, why did you omit

all the parts relating to "for the defense of themselves or the state"? :shrug:

Not sure what point you're trying to make...

http://books.google.com/books?id=Fyn9B9zwAjEC&pg=PA36&dq=halbrook+%22to+hunt+and+fowl%22&hl=en&ei=wUpMTpmvIczAtgexoMSZCg&sa=X&oi=book_result&ct=result&resnum=1&ved=0CCwQ6AEwAA#v=onepage&q&f=false

[Name removed]

8. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Glenn Vardy]

9. He linked "bear arms" to "hunting."

Halbrook linked the military phrase "bear arms" from a provision in the Declaration of Rights to "hunt or fowl" in a different article in the Constitution. Yes or no?

[petronius]

12. The meaning of the section seems quite clear to me - he's discussing

the intent of the Vermont framers regarding the VT right to bear arms, and the reasoning behind it all. Obviously, "bear arms" is/was not limited to the context of military service.

What point are you trying to make, exactly?

[Glenn Vardy]

13. Yes or no?

Halbrook linked the military phrase "bear arms" from a provision in the Declaration of Rights to "hunt or fowl" in a DIFFERENT article elswhere in the Constitution. Yes or no?

[petronius]

15. He referred to two separate sections in his discussion, yes.

He stated that hunting was one of the reasons VTers have the right to bear arms, yes.

The section that includes the phrase "bear arms" itself suggests that the phrase is not limited to military circumstances, so your question seems to lack foundation...

[Glenn Vardy]

16. Militia service

He referred to two separate sections in his discussion, yes. He stated that hunting was one of the reasons VTers have the right to bear arms, yes. The section that includes the phrase "bear arms" itself suggests that the phrase is not limited to military circumstances, so your question seems to lack foundation...

No. Halbrook had NO reason to say that those "founders" considered "bear arms" to be about the "possession" of guns for "hunting." Which word does he base "possession" on, because the word "keep" isn't even there to be distorted? Anyway, let's see if those founders considered "bear arms" to have a military meaning CAPS MINE:

XV. "That the people have a right to BEAR ARMS for the defence of the themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."

IX. "That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute HIS PROPORTION towards the expense of THE PROTECTION, and yield HIS PERSONAL SERVICE, when necessary, OR AN EQUIVOLENT thereto; but no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives; nor can any man, who is conscientiously scrupulous of BEARING ARMS, be justly compelled thereto, if he will pay such equivalent; nor are THE PEOPLE bound by any law, but such as THEY have, in like manner, assented to, for their COMMON good."

So, the defence of "themselves" isn't about self-defence.

"his proportion" is about taxation, "his personal service" is militia service, and "an equivalent thereto" is about paying to be excused from militia service. Sorry.

[petronius]

17. Are you truly that obtuse, or are you having some sort of joke here?

Either way, I'm sorry I wasted any time on you...

[Tuesday Afternoon]

23. truly - - it is to laugh.

[Atypical Liberal]

31. You can bear arms for a variety of reasons.

Halbrook linked the military phrase "bear arms" from a provision in the Declaration of Rights to "hunt or fowl" in a different article in the Constitution. Yes or no?

You are making the supposition that the phrase "bear arms" is a military phrase. But you can clearly bear arms for a variety of purposes, including hunting, or self-defense, or the defense of property, or the defense of others.

[Glenn Vardy]

43. Again, the topic is Halbrooks distortion

We could get into our own debate about what the Founders/Framers meant by the phrase "bear arms," but the topic is Halbrook's distortion of the material he presented. How is my observation OF WHAT HE SAID wrong?

[Atypical Liberal]

74. There is no distortion.

Once you discount the idea that "bear arms" is a "military phrase", then there is no distortion of the material presented.

What distortion are you talking about?

[Glenn Vardy]

10. Another "mistake."

"Webster, An American Dictionary of the English Language (1828). "To bear arms in a coat" typically meant to carry a pistol in a coat for self defense." - Stephen P. Halbrook.
--------------------------------------------------

On planet Earth, it actually means "a coat of arms."

From the same dictionary:

COAT, n.
8. That on which ensigns armorial are portrayed; usually called a coat of arms. Anciently knights wore a habit over their arms, reaching as low as the navel, open at the sides, with short sleeves, on which were the armories of the knights, embroidered in gold and silver, and enameled with beaten tin of various colors. This habit was diversified with bands and fillets of serval colors, placed alternately, and called devises, as being divided and composed of several pieces sewed together. The representation of these is still called a coat of arms.

BEAR, v. t.
3. To wear; to bear as a mark of authority or distinction; as, to bear a sword, badge, a name; to bear arms in a coat.

ARMS, n. plu.
3. The ensigns armorial of a family; consisting of figures and colors borne in shields, banners, &c, as marks of dignity and distinction, and descending from father to son.

[Glenn Vardy]

11. Same mistake, new twist.

"...the Second Amendment cannot be referring only to military weapons, since a Federal-period dictionary (Noah Webster’s), under "bear," lists "to bear arms in a coat" as one usage, and only a handgun could be carried in a coat pocket."
----------------------------------

Judges in the highest court in the land are basing their rulings on "research" like this.

[discntnt_irny_srcsm]

14. You are cordially....

...invited to start your own country and do better...


...somewhere else. ;)

[iverglas]

18. okay, that one's the funniest so far (with more added)

"to bear arms in a coat" ... the pre-camo-and-black-Tshirt equivalent of "to pack a pistol in yr pants"

:rofl:

Had they no fanny pack equivalent??

I'm sure there are skeptics (I find them on the net). To sort it out in one's head, google something like "arms in a coat" -bear and get this:

http://www.math.utah.edu/~gold/fitzwilliam2.html

The then Earl Fitzwilliam kindly allowed the society to use his arms in a coat which included, in chief, those of the University.

Ooh, ooh, a good one:

http://books.google.ca/books?id=cUAOfGrRjyIC&pg=PA515&lpg=PA515&dq=%22arms+on+a+coat%22+heraldry&source=bl&ots=cXZJvZA4jL&sig=jNqQUv9rywP4xnFgEg-lBbckuDI&hl=en&ei=rntMTs6PNoPV0QHwprnsBg&sa=X&oi=book_result&ct=result&resnum=1&ved=0CCkQ6AEwAA#v=onepage&q&f=false

ARMS BORN BY LADIES ... An unmarried lady would be entitled to bear arms on a coat and in a lozenge if her father be a gentleman lawfully bearing arms, but not otherwise. The sovereign only, who is the fountain of honour, can grant this hereditary title of "gentleman lawfully bearing arms," through the Earl Marshall and Kings-at-Arms. No amount of landed or other property would give this title of the minor order of nobility in this country, of "gentleman lawfully bearing arms," to the father or the son, or the title of "gentlewoman" to the daughter. If the young gentlewoman marry a gentleman lawfully bearing arms, her husband would bear her arms impaled with his own; or if the wife have no brother, the husband would bear his wife's arms on an escutcheon of pretence, and their children would, in the latter case, bear their father's and mother's arms quarterly.

I fear that there is going to have to be some heavy duty reinterpretation of that second amendment thing going on now!

Being the genealogy hound that I am, I find it all crystal clear. I imagine there are others with visions of ladies with pistols pinned to their lapels (whereas the colonials had to conceal theirs in their pockets), and wondering how you get a blunderbuss in a cough drop, and what kind of place allowed men to impale their wives' body parts ...

[Glenn Vardy]

20. "Coat pocket" hehehehe....

"....the Second Amendment cannot be referring only to military weapons, since... only a handgun could be carried in a coat pocket." - THE Stephen P. Halbrook.

Why doesn't he make the argument that "military weapons" can't be protected because they DON'T fit into a coat pocket? Their argument morphs from year to year depending on the current climate.

[Tuesday Afternoon]

19. I notice you had to use the 8th, 3rd, 3rd definition of those words --

how disingenuous of you.

[iverglas]

21. -- to make any bleeding sense at all!

But that's okay, you keep thinking that "bear arms in a coat" means wander around with a pistol in your pocket.

Didn't it get tad warm for a coat in whatever colony that was on occasion?

Oh, btw, a coat, at that time, was what we now refer to as a jacket.

What we refer to as a coat was called a mantle.

Just in case that helps at all.

[Tuesday Afternoon]

22. reaching.

you two are so far out, I bet you can see aliens from your window. there was a time when gay meant happy and I would love to see you two
tackle butcher Shakespeare.

[Glenn Vardy]

25. Yet it fools judges

Didn't it get tad warm for a coat in whatever colony that was on occasion?

I've just made the same point in another thread. How can these OBVIOUS flaws get past judges?

[Atypical Liberal]

32. Maybe because they aren't flaws at all?

I've just made the same point in another thread. How can these OBVIOUS flaws get past judges?

Maybe, just maybe, these people are very well educated in law, and in fact these aren't flaws at all? Maybe, just maybe, your understanding is flawed instead?

[Glenn Vardy]

44. Maybe........

.......you can't address my observations because I'm spot on?

[Atypical Liberal]

73. Maybe not...

Again, there is little point in this discussion.

Your opinions go directly against all 9 Supreme Court justices. People who have hundreds of years of Constitutional law experience between them.

If you want to go off on a mission to try and say that "bear arms" is solely a military connotation, knock yourself out.

I'm not buying, and I don't have to address your "observations" because they have already been addressed by 9 people far more qualified than either you or I.

[iverglas]

77. argument from authority

is no argument at all, I thought you knew.

Your opinions go directly against all 9 Supreme Court justices.

The opinions of judges are authoritative in respect of the interpretation of constitutions and statutes that will be applied.

They are not authoritative in respect of the interpretation itself. For that, as for every other aspect of life, there is no authoritative opinion, there is simply opinion, which may be worthwhile or not for various reasons. If an opinion of a court -- a judicial decision -- is made on the basis of misleading argument and false facts presented to the court, its value as an opinion is diminished, no matter how authoritative it is for the purpose of the application of the constitution and laws of the land.

We all know very well that no one in this forum has the least difficulty attacking a judicial interpretation that they disagree with, if it happens to run counter to their ideology with respect to firearms and other things. I have no difficulty doing it myself: the opinion of the Supreme Court of Canada in Chaoulli was just plain flat out wrong -- and I can tell you why in great detail, as can numerous other reputable and respected sources.

Hell, your Supreme Court said in Lawrence, straight out, that it had been wrong itself. So not even arguing from the authority of the US Supreme Court to the US Supreme Court will guarantee success. Arguing from the authority of that court on a split decision in particular might not end up working too well.

I'm not buying, and I don't have to address your "observations" because they have already been addressed by 9 people far more qualified than either you or I.

You see, this is the polar opposite of civil discourse. It is stamping one's feet and saying "I win because daddy says so." (I suspect you may also still be misrepresenting the opinions of some of those nine people.)

Civil discourse doesn't involve invoking the gods to close the discussion.

Daddy may have listened to your side of the story and believed you and sent your sibling to their room, even though your exceedingly credible representation of the events actually left out the fact that you started it. That doesn't make daddy right, or make you right just because you cite daddy.

Anyone is welcome to cite the gods as the authority that settles the debate and say the debate is settled. It's just that it isn't, and no one interested in genuine discourse does that.

[SteveM]

37. Probably fell asleep due to tediousness. nt

[Glenn Vardy]

24. Relevant definitions

I notice you had to use the 8th, 3rd, 3rd definition of those words --how disingenuous of you.

Ok, if you (and Halbrook) think the relevent definition for the word "coat" in the phrase "a coat of arms" is an overcoat with pockets, could muskets fit into a coat pocket? What if it was hot and "individuals" weren't wearing coats? Face it, handguns were high on the agenda when Halbrook wrote this, and it was intended to fool the courts at that time.

[iverglas]

35. there could be some genuine confusion here ...

I shall offer my services.

This is the actual quote from Webster -- which Halbrook quote in his brief, which was quoted by the judge in Emerson:

3. To wear; to bear as a mark of authority or distinction;
as, to bear a sword, badge, a name; to bear arms in a coat.

Glenn Vardy did not go looking for that and cherry-pick definition no. 3.

That is the definition cited by Halbrook himself.

The problem is that Hallbrook didn't QUOTE the definition. What he "quoted" in his brief -- in fact what he said in his brief, since it is so distorted as to be no quotation at all -- was this:

"to wear. . .
as, to bear a sword, a badge, a name; to bear arms in a coat."

Let's put them together, and I will add the emphasis that shows the difference:

to wear. . .
as, to bear a sword, a badge, a name; to bear arms in a coat.

To wear; to bear as a mark of authority or distinction;
as, to bear a sword, badge, a name; to bear arms in a coat.

Halbrook INTENTIONALLY omitted (forgive me if I infer the bleeding obvious; the only other possible inference would be that Halbrook is thick as a brick) the part that makes it clear what the real definition meant.

It meant:

to wear, to bear as a mark of authority or distinction -- for example, to bear a sword, badge, a name, to bear arms in a coat

The meaning "to carry a gun around in your pocket" is just one of those things that doesn't belong.
The list is of similar things, not randomly associated different things.

"To bear arms in a coat" OBVIOUSLY falls under "to bear as a mark of authority or distinction".
"Arms in a coat" OBVIOUSLY means the arms that are displayed on a coat of arms (and I've offered sources that illustrate this -- the one about the ladies who are entited to bear arms is from 1877.)

A sword, a badge, a name, arms in a coat -- all are marks of authority or distinction in the context of this definition.

Whatever explanation there might be for Halbrook misleading the court, mislead it he did.

It is genuinely hilarious -- I told the tale last night to the co-vivant, whose interests run more to the coming apocalypse in the financial markets (he bores me with his tales, I bore him with mine), and even he laughed out loud.

But it's kinda tragic, really.


formatting improved

[iverglas]

36. they won't like the source at all

But the same explanation is laid out here:

http://www.potowmack.org/noahweb.html

I note that the author quotes the full definitions of the three words from Webster 1828, and thus demonstrates what I said in another post. Meaning number one is what Halbrook would have had to be relying on:

COAT, n.
1. An upper garment, of whatever material it may be made.
The word is, in modern times, generally applied to
the garment worn by men next over the vest.

As I said last night: a "coat", at the time, was what we call a jacket.

What we call a "coat" was called a "mantle" in the day.

http://1828.mshaffer.com/d/search/word,mantle

MAN'TLE, n.
1. A kind of cloke or loose garment to be worn over other garments.

This makes Halbrook's efforts even more risible. Tote guns around in a jacket, now there's a truly fundamental right.

[rrneck]

26. Ummmmmm. OK

A little out three for me.

[Glenn Vardy]

27. It's carefully crafted deception

"Among the provisions included in the Declaration of Rights adopted by the Vermont convention, which was taken verbatim from that of Pennsylvania, was the following: "That the people have a right to bear arms for the defense of themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power." In a related provision, Vermont copied Pennsylvania in declaring "that the inhabitants of this State, shall have liberty to hunt and fowl, in seasonable times, on the lands they hold, and on other lands ...."

"The above language clarifies what Vermont's founding fathers considered to be the fundamental character of the right to carry arms. To "bear arms" meant to possess guns, pistols, and swords for defense of self and state or for hunting. Indeed, the framers of this provision carried a gun and a brace of pistols on their persons as a common practice. The phrase "for the defence of themselves" precludes any interpretation that "bear arms" was meant solely for the use of the militia, or that concern with standing armies or subordination of the military somehow limited the individual character of the right. Recognition of bearing arms to defend the state was more radical, since it justified action by armed private citizens...." - Stephen P. Halbrook.
-----------------------------------

1. He mentions the provision in the Declaration of rights securing the right of "the people" to "bear arms".

2. For NO reason, he then describes an article in a different part of the Constitution declaring that the "inhabitant" shall have liberty to "hunt and fowl" as "related to" the arms bearing provision.

3. He then mentions the "fundamental" character of the right to "carry arms." But even the article about hunting and fowling is restricted to "seasonable times" and "on lands they hold, and others not enclosed."

4. The words "To bear arms meant to possess guns... for hunting" are Halbrooks OWN words.

5. The words "To bear arms meant to possess guns... for defence of self" are Halbrooks OWN words.

6. The word "keep" isn't in the arms bearing provision, so why does Halbrook say "possess guns?"

6. Although Halbrook incorrectly said that the article about hunting was "related to" the arms bearing provision, he doesn't mention a provision in the Declaration of Rights which actually WAS related to the arms bearing provision. And guess what? It shows that the defence of "themselves" isn't about "self" defence by "armed private citizens." Here it is:

IX. "That every member of society hath a right *TO BE PROTECTED* in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of the protection, and yield his *PERSONAL SERVICE*, when necessary, or an equivalent thereto; but no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives; nor can any man, who is conscientiously scrupulous of *BEARING ARMS*, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law, but such as they have, in like manner, assented to, for their *COMMON* good."

[rrneck]

28. Whatever dawg.

It looks like you've deconstructed the forest and discovered a shit load of trees.

[Kennah]

38. Yeah, that's kinda what I'm seeing

Wasn't quite sure what the whole point of the OP was. Still am not sure.

Where's iverglas at a time like this?

[iverglas]

45. already reported for partial duty!

I've tried to help explain the "arms in a coat" thing, because that comes within two of my particular fields of expertise: language and genealogy. Oh, and right-wing duplicity ...

Nobody seems to have appreciated the help yet, but I will assume everybody is just being silently grateful!

On this other one, well, for a long time now, I've kind of studiously avoided undertaking a study of the antique foundational documents of any of the various constituent elements of the united colonies. It's really a little too much like chicken entrails to me.

I've ploughed through that kind of thing when I've had to -- for instance, reading dozens of pages after dozens of pages deconstructing the treaty and land rights of some First Nation with a population of about 40 and an acre and a half of land (okay, and also in rather more significant situations), all the way back to the Royal Proclamation of 1763 and beyond, and consulting all those instruments, but I had a purpose for that. Whatever these bits and pieces in the first part of this thread are ... well, maybe I'll break down and let idle curiosity get the better of me ... but I'm not promising anything.


PS -- it's not that I find all this totally uninteresting. I have looked forward with some interest to the OP's replies in this thread, at least. ;)

[Glenn Vardy]

47. Grateful?

Something I've never seen from a pro-gunner no matter WHAT evidence I've provided:
"It's possible that you're right and I've been mislead by propaganda."

For me, I'm just putting the alternate information out there that won't be found on a gun-site.

[Surf Fishing Guru]

29. Hmmmmm

The belief that any term such as "bear arms" when used in a Declaration of Rights, conditions or qualifies the right being recognized and secured is demonstrative only of either one's profound ignorance of, or conscious hostility to, the fundamental liberty principles these state's constitutions are founded on.

Does the fact that these provisions reside in Articles / Chapters of those Constitutions that except out these rights before a single power was granted/conferred, mean anything to you? These rights are held immune from the governmental structure yet to be established and framed. The VT Constitution's Chapter I declares the rights, Chapter II is the "plan or frame of government" and the "delegation and distribution of powers"

Your ridiculous position means the delegation of powers actually begins within the Declaration of Rights and that's just absurd!

How can the governments of these states condition or qualify something the citizens never surrendered?

[Glenn Vardy]

48. You're speculating

The belief that any term such as "bear arms" when used in a Declaration of Rights, conditions or qualifies the right being recognized and secured is demonstrative only of either one's profound ignorance of, or conscious hostility to, the fundamental liberty principles these state's constitutions are founded on.

In short, your argument here is "The Founders believed in personal rights, therefore, the militia amendment dealing with State security MUST protect a personal right." You're speculating rather than looking at the evidence.

[Surf Fishing Guru]

49. Not speculating, just applying the fundamental rights theory the framers embraced.

In short, your argument here is "The Founders believed in personal rights, therefore, the militia amendment dealing with State security MUST protect a personal right." You're speculating rather than looking at the evidence.

No, the principle is that the framers of those Amendments (state and federal) possessed no authority to condition the personal, individual right to arms on a person's militia status. Since no aspect of the exercise of the right was granted to government the government can not give back to the citizen something the government never possessed. The principle of conferred powers and retained rights forbids reading those provisions as conditioning the right . . .

Again, rights are declared and excepted out of the powers being granted to government. The rights are listed in those state constitutions before a shred of power is granted, defined or established.

Regarding the 2nd Amendment, your interpretation is EXACTLY why the Federalists resisted having a bill of rights added to the federal Constitution.

Since the powers of government are specifically defined AND THUS LIMITED, it was thought absurd and dangerous to declare that things shall not be done for which no power exists to do. The Federalists feared that no matter how these "EXCEPTIONS TO POWERS NOT GRANTED" were composed, those intending to usurp would misconstruct them into granting a regulatory power.

• http://www.constitution.org/fed/federa84.htm">Federalist 84:
  
  "I . . . affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, . . . "

Your position is precisely what the Federalists warned about; your position is those fears for liberty manifested in full!

[Glenn Vardy]

54. LOOK at the evidence

Again, rights are declared and excepted out of the powers being granted to government. The rights are listed in those state constitutions before a shred of power is granted, defined or established.

So what?

LOOK at the evidence.
"That the people have a right to bear arms for the defence of the themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."

"That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of the protection, and yield his personal service, when necessary, or an equivalent thereto; but no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives; nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law, but such as they have, in like manner, assented to, for their common good."
---------------------

1. "...to be protected..." That's not self defence, it's the defence of "themselves" and the State by the State militia.
2. "...contribute his portion towards the expense of the protection,.." That's tax to pay for the State militia.
3. "...his personal service..." That's service in the State militia.
4. "...pay such equivolent.." That's paying so as not to be compelled to bear arms (serve in the militia to me, carry guns unconnected to a militia to you).

[hansberrym]

66. Where shall we post Glen Vardy mistakes?

Are you suggesting that the two provisions you cite are merely redundant? Is there no difference between rights and duties? Between active and passive case?

Did you completely miss that "bearing arms" was used as the action of an individual in your second cite? You can read into those words a strictly military meaning if you like, but it does your position no good to mischaracterize the other side as reading those words as exclusively non-military. If fact you are engaging in the same nonsense you accuse the other side of doing.

Surely you do not believe that Quakers carried arms for their individual defense, and only refused to bear arms as part of militia duty.(refer to your other post in which a Quaker asks an associator why he carries a sword)

It makes little sense to argue that the duty to bear arms is broader than the right to bear arms(I am not saying that you have done so, just pointing out what ought to be exceedingly obvious), or that the people would have a right to bear arms in defense of the state, but not themselves -which leads to the conclusion that the right is not limited to service in a state controlled militia. At minimum the right to bear arms of the PA constitution protects the continued existence of an armed populace capable of forming a people's milita if the government became tyrranical, and certainly it can be read as protecting as well a right to self defense -James Wilson thought so of the later verson.


The Second Amendment arguments boil down to these :
1)The RKBA protect only an individual right to have arms to serve in the state controlled militia.
2)The RKBA protects an individual right to have arms as a political right to thwart tyranny in government (a Federal version of the Aymette court's reading on the Tenn. Const.)
3)The RKBA protect a political right of individuals to have arms as in #2 and an individual right to have arms for self defense.


I have not included the States' Rights(Hickman) or Collective rights (Silveira)arguments as these have been thoroughly rejected in recent scholarship and in the Supreme Court.

The dissent in Heller settled on #1, though that narrow individual rights view was rejected by the circuit courts as recently as Silveira. The dissent did not even consider #2, though a case could be made for this position, because it would have meant that Mr. Heller kept his gun. Logically speaking, #3 seems the easiest to defend as it does not have to explain away counter evidence as do those that hold firmly to #1. There was no one at the founding claiming that the RKBA was meant exclusively for those persons actually serving in state controlled militias, but there is evidence that the right was intended to at a minimum provide for #2, and there is evidence supporting #3.

[iverglas]

75. just picking out the funniest bit

Surely you do not believe that Quakers carried arms for their individual defense, and only refused to bear arms as part of militia duty.(refer to your other post in which a Quaker asks an associator why he carries a sword)

You're seriously suggesting that the foundational document of a polity would mention that an individual is exempt from "bearing arms" to defend themself? Did there suddenly become a duty to do that, that then called for an exemption?

:rofl:


It makes little sense to argue that the duty to bear arms is broader than the right to bear arms ... or that the people would have a right to bear arms in defense of the state, but not themselves ...

I can't figure out what you mean here by "broader", since the two things are simply totally different. On the totally different question, it makes perfect sense. Not saying that's what the correct interpretation is here, simply saying that it makes absolutely perfect sense.

In Canada, for example, there is a "duty to bear arms" for the "defence of the state", in that the government has the power of conscription in time of war. (If challenged, the power of conscription would likely be found to be a justified impairment of the fundamental rights laid out in section 7 of the Charter/Constitution, under section 1, even though it did not meet the standards in section 7 itself, e.g. due process.) That duty certainly does not imply a right to "bear arms" for the "defence of the state" at the whim of the individual, even in the context of a militia.

"Bearing arms" with the stated intention of using them for self-defence would be broadly covered by those section 7 rights, i.e. the right to liberty, in Canada, but the exercise of that "right" has been effectively narrowed to zero, since carrying weapons in public in Canada is essentially prohibited.

So yes, it makes perfect sense. The two things -- "duty to bear arms" "in defence of the state" and "right to bear arms" for the stated purpose of self-defence -- are not even related. Complete chalk and cheese.

And don't nobody bother telling me how they just don't care blah blah blah. "Canada" is a case in point to illustrate a point here. The point is independent of the case that illustrates it.

[hansberrym]

96. What's funny is that your write so well, but can'r read for nothin'

"nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law, but such as they have, in like manner, assented to, for their common good."

Read it a few times slowly and maybe you will understand, or not.


In Heller the majority interpreted the phrase "bear arms" as meaning to carry weapons as in preparation for confrontation. While the dissent read it more narrowly as in carrying weapons in connection with service in a state organized militia.

Heller Majority:
Quakers opposed the use of arms not just
for militia service, but for any violent purpose whatsoever—
so much so that Quaker frontiersmen were forbidden
to use arms to defend their families, even though “in
such circumstances the temptation to seize a hunting rifle
or knife in self-defense . . . must sometimes have been
almost overwhelming.” P. Brock, Pacifism in the United
States 359 (1968); see M. Hirst, The Quakers in Peace and
War 336–339 (1923); 3 T. Clarkson, Portraiture of Quakerism
103–104 (3d ed. 1807). The Pennsylvania Militia Act
of 1757 exempted from service those “scrupling the use of
arms”—a phrase that no one contends had an idiomatic
meaning. See 5 Stat. at Large of Pa. 613 (J. Mitchell & H.
Flanders eds. 1898) (emphasis added). Thus, the most
natural interpretation of Madison’s deleted text is that
those opposed to carrying weapons for potential violent
confrontation would not be “compelled to render military
service,” in which such carrying would be required...


Heller Dissent:
Instead, the Court limits
the Amendment’s protection to the right “to possess and
carry weapons in case of confrontation.” Ante, at 19. No
party or amicus urged this interpretation; the Court appears
to have fashioned it out of whole cloth. But although
this novel limitation lacks support in the text of
the Amendment, the Amendment’s text does justify a
different limitation: the “right to keep and bear arms”
protects only a right to possess and use firearms in connection
with service in a state-organized militia.
The term “bear arms” is a familiar idiom; when used
unadorned by any additional words, its meaning is “to
serve as a soldier, do military service, fight.” 1 Oxford
English Dictionary 634 (2d ed. 1989).


However Stevens neglects to inform his readers how the right to Keep and "do military service" could make any sense, or why the various states would have BOR provisions ostensibly for the protection of the people against tyranny in governemnt which are limited only to serving in the militia under the control of the state.



On the second point, I am heartened that you also do not think the duty and the right are exactly the same thing :-)
Note that a person who only recognizes a political RKBA might well argue that the duty and the right are coextensive.
But at the founding, as now, people spoke of the right to bear arms as encompassing both a political right and a right of self defense.


Address of PA Minority: (From a list of amendments proposed by the minority during ratification of Constitution)
That the people have a right to bear arms for the defense 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.


From Heller:
The Works of the Honourable James Wilson 84 (1804) (with reference to
state constitutional right: “This is one of our many renewals of the
Saxon regulations. ‘They were bound,’ says Mr. Selden, ‘to keep arms
for the preservation of the kingdom, and of their own person’ ”);


From debates in Congress on the first Militia act, and proposal for CO provision:
Representative Sherman questioned if Congress could give an exemption to pacifists since “the state governments had (not) given out of their hands the command of the militia, or the right of declaring who should bear arms?”91 He went on to argue that it was the
privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack made upon his liberty or property, by whomsoever made. The particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded. A militia existed in the United States, before the formation of the present constitution: and all that the people have granted to the general government, is the power of organizing such militia. The reason of this grant was evident; it was in order to collect the whole force of the union to a point, the better to repel foreign invasion, and the more successfully to defend themselves.

Sherman was no novice in discussing rights, he was chosen by Madison to sit on the committee that worked out the kinks between the House and Senate versions of the BOR. Yet above he mixes personal right of defending self and property with the political right, he even mixes in the right of states to defend their rights by force of arms.


Another funny thing is how the Heller dissent avoided discussion the earliest state court cases regarding the RKBA.

[iverglas]

107. I got it the first time

and I have no idea what you're babbling about now.

You said:

Surely you do not believe that Quakers carried arms for their individual defense, and only refused to bear arms as part of militia duty.(refer to your other post in which a Quaker asks an associator why he carries a sword)

And the only possible inference from what you said is that you are saying that an exemption was granted to Quakers so that they could not be compelled to "bear arms" for some purpose other than the common defence.

And that's just as much nonsense as it was the first time you said it, since no one in the history of the world has ever been compelled to "bear arms" for their personal defence.

[hansberrym]

110. Not by a long shot.

And that's just as much nonsense as it was the first time you said it, since no one in the history of the world has ever been compelled to "bear arms" for their personal defence

But persons were said to "bear arms" in self defense. And the question is what does "bear arms" mean? Does it refer to carrying arms for confrontation, or does it mean only to carry arms in service of a state organized militia.

That someone could be compelled to "bear arms" in service of a militia it not evidence that "bear arms" refers exclusively to service in a militia. That persons were said to "bear arms" in self defense ought to inform a reasonable person the exclusivity argument does not hold up.

I realize you have trouble reading, but you really ought to be able to grasp that concept.

[Glenn Vardy]

113. Unanswered question.

But persons were said to "bear arms" in self defense

Post it.

When YOU say "bear arms," you mean "carry" "guns" for self defence. I hope iverglas doesn't mind me saying that he/she has already asked "Did there suddenly become a duty to do that, that then called for an exemption?"

Your argument seems to be that, it's possible for an individual to carry a gun for self defence, so it doesn't exclusively mean "to carry arms in service of a state organized militia." It doesn't mean "carry arms" AT ALL, even for militiamen. That would become clear to you if you'd answer the question honestly. It's a military expression that was used even when talking about navel vessels.

[hansberrym]

120. SSDD

When YOU say "bear arms," you mean "carry" "guns" for self defence


Nope, "bear arms" means to carry weapons in case of confrontation. Could be for self defense, could be for defense of community or state.


So far you have used the False Dichomtomy and the always popular non-sequitor. You are running out of ammo.

[Glenn Vardy]

126. Running out of ....

You are running out of ammo.

In other words, "You're running out of questions for me to dodge."

I think you've answered one question so far, and that was after you dodged it several times. In the post that you replied to, I repeated a question that iverglas asked and you dodged. You've just dodged it again. Go back and have another go.

[Glenn Vardy]

82. Got one

I'll get the ball rolling for you, how's that? I listed seven points as 1, 2, 3, 4, 5, 6 and 6.

[hansberrym]

98. Well you got one, but the others critiques are baseless.

I agree that the Halbrook's critics have the much better argument regarding "arms in a coat", but the other points you attempt are weak at best.

[Glenn Vardy]

105. Why?

....the other points you attempt are weak at best

Then, go to those threads and explain why.

[Glenn Vardy]

85. Same as original draft

Did you completely miss that "bearing arms" was used as the action of an individual in your second cite?

Why haven't you included that text in your post? It's not there.

Surely you do not believe that Quakers carried arms for their individual defense, and only refused to bear arms as part of militia duty.

They weren't required to pay to get excused from exercising a personal right to carry guns for "self" defence. These things TELL us what "bear arms" means.

It makes little sense to argue that the duty to bear arms is broader than the right to bear arms

Your argument is that, in the arms bearing provision, the "right" of "the people" to "bear arms" is a PERSONAL right to self defence AND a personal duty to participate in the exercise of that personal right to self defence. It's nonsence.


-------------------
XV. "That the people have a right to bear arms for the defence of the themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."

IX. "That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of the protection, and yield his personal service, when necessary, or an equivalent thereto; but no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives; nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law, but such as they have, in like manner, assented to, for their common good."
------------------

The top provision secures a collective RIGHT of "the people" for the common defence.
The bottom provision secures a right to "every member" of society "TO BE PROTECTED" by the top provision, not to "self" defence.
The bottom provision also deals with the duty for "every member" of society to participate in the exercise of the collective right, or to pay to be excused from "bearing arms." Even if someone pays to be excused from bearing arms, he STILL has a right "to be protected."

If you look at the original draft of the Second Amendment, you'll see the very same thing. The right to bear arms is first secured to "the people," then it says that no "person" who is scrupulous of "bearing arms" shall be compelled to participate "IN PERSON." Does that mean they wouldn't be compelled to exercise a personal right to self defence "in person?" Add to that the fact that it was suggested "upon paying an equivolent, to be established by law" should be added to the end of it. You don't PAY to be excused from exercising a personal right.

[hansberrym]

97. Really?

Why haven't you included that text in your post? It's not there

Uh, you posted this yourself, so really no need for me to post it again, but since you asked, here it is: "nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto."



Your argument is that, in the arms bearing provision, the "right" of "the people" to "bear arms" is a PERSONAL right to self defence AND a personal duty to participate in the exercise of that personal right to self defence. It's nonsence.

My argument is that RKBA encompasses both a political right and a right to self defense. There also existed a duty to contribute the common defense. but it is not difficult to understand the difference between rights and duties, really its not. Nor is it difficult to consider that the RKBA and the duty to bear arms need not be exactly the same scope.



See my post to Iverglas for the rest.

[Glenn Vardy]

101. What IS the activity?

My post
"That the people have a right to bear arms for the defence of the themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."

"That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of the protection, and yield his personal service, when necessary, or an equivalent thereto; but no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives; nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law, but such as they have, in like manner, assented to, for their common good."

Your post
"Did you completely miss that "bearing arms" was used as the action of an individual in your second cite?"

My post
"Why haven't you included that text in your post? It's not there."

Your post
"..here it is: "nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto.""
----------------------------------------

Are you just trying to muddy the water here? You're describing the exemption of certain individuals from militia duty as an "individual activity" and concluding that the right protected in the arms bearing provision must also be an "individual activity." Ask yourself "what is the activity that that individuals could pay to be excused from?" It ain't carrying guns for their own self defence, it's militia service.

[hansberrym]

102. I thought it obvious.

The activity is "bearing arms", the questions are -what does that mean; and who is said to bear arms, the individual or only the collective?

Note that the right is not "to take part in bearing arms", but "to bear arms". See also my post to Iverglas.

I am curious, why do you embrace the Collective Right theory which was rejected 9-0 in Heller, and in fact disgarded beforehand by academics such as Saul Cornel and Nathan Kozuskanich?

[Glenn Vardy]

104. "Obvious" is not an answer, nor is "bearing arms."

Glenn:
"That the people have a right to bear arms for the defence of the themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."

"That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of the protection, and yield his personal service, when necessary, or an equivalent thereto; but no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives; nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law, but such as they have, in like manner, assented to, for their common good."

hansberrym:
"Did you completely miss that "bearing arms" was used as the action of an individual in your second cite?"

Glenn:
"Why haven't you included that text in your post? It's not there."

hansberrym:
"..here it is: "nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto.""

(Note: You left out "if he will pay such equivalent." This part doesn't secure the right for any "action" for any "man." . It EXCEMPTS a "man" from the "action" secured to "the people" in the arms bearing provision.)

Glenn:
"Ask yourself "what is the activity that that individuals could pay to be excused from?" It ain't carrying guns for their own self defence, it's militia service."

(Note: Isn't it clear that, in the post above, I'm asking what "Bearing arms" MEANS?


hansberrym:
"The activity is "bearing arms", the questions are -what does that mean?....."
==========================================================================
=========================================================================


You're stuck, aren't you? I answered that question when I said "It ain't carrying guns for their own self defence, it's militia service." Your turn. Stop stalling.

[hansberrym]

111. Here you go, I'll cut and paste it just for you.

Below is my earlier post to Iverglas, which I directed you to in my previous post for what "bear arms" means, but which apparently you could not find:


===============================

In Heller the majority interpreted the phrase "bear arms" as meaning to carry weapons as in preparation for confrontation. While the dissent read it more narrowly as in carrying weapons in connection with service in a state organized militia.

Heller Majority:
Quakers opposed the use of arms not just
for militia service, but for any violent purpose whatsoever—
so much so that Quaker frontiersmen were forbidden
to use arms to defend their families, even though “in
such circumstances the temptation to seize a hunting rifle
or knife in self-defense . . . must sometimes have been
almost overwhelming.” P. Brock, Pacifism in the United
States 359 (1968); see M. Hirst, The Quakers in Peace and
War 336–339 (1923); 3 T. Clarkson, Portraiture of Quakerism
103–104 (3d ed. 1807). The Pennsylvania Militia Act
of 1757 exempted from service those “scrupling the use of
arms”—a phrase that no one contends had an idiomatic
meaning. See 5 Stat. at Large of Pa. 613 (J. Mitchell & H.
Flanders eds. 1898) (emphasis added). Thus, the most
natural interpretation of Madison’s deleted text is that
those opposed to carrying weapons for potential violent
confrontation would not be “compelled to render military
service,” in which such carrying would be required...


Heller Dissent:
Instead, the Court limits
the Amendment’s protection to the right “to possess and
carry weapons in case of confrontation.” Ante, at 19. No
party or amicus urged this interpretation; the Court appears
to have fashioned it out of whole cloth. But although
this novel limitation lacks support in the text of
the Amendment, the Amendment’s text does justify a
different limitation: the “right to keep and bear arms”
protects only a right to possess and use firearms in connection
with service in a state-organized militia.
The term “bear arms” is a familiar idiom; when used
unadorned by any additional words, its meaning is “to
serve as a soldier, do military service, fight.” 1 Oxford
English Dictionary 634 (2d ed. 1989).


However Stevens neglects to inform his readers how the right to Keep and "do military service" could make any sense, or why the various states would have BOR provisions ostensibly for the protection of the people against tyranny in governemnt which are limited only to serving in the militia under the control of the state.



On the second point, I am heartened that you also do not think the duty and the right are exactly the same thing :-)
Note that a person who only recognizes a political RKBA might well argue that the duty and the right are coextensive.
But at the founding, as now, people spoke of the right to bear arms as encompassing both a political right and a right of self defense.


Address of PA Minority: (From a list of amendments proposed by the minority during ratification of Constitution)
That the people have a right to bear arms for the defense 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.


From Heller:
The Works of the Honourable James Wilson 84 (1804) (with reference to
state constitutional right: “This is one of our many renewals of the
Saxon regulations. ‘They were bound,’ says Mr. Selden, ‘to keep arms
for the preservation of the kingdom, and of their own person’ ”);


From debates in Congress on the first Militia act, and proposal for CO provision:
Representative Sherman questioned if Congress could give an exemption to pacifists since “the state governments had (not) given out of their hands the command of the militia, or the right of declaring who should bear arms?”91 He went on to argue that it was the
privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack made upon his liberty or property, by whomsoever made. The particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded. A militia existed in the United States, before the formation of the present constitution: and all that the people have granted to the general government, is the power of organizing such militia. The reason of this grant was evident; it was in order to collect the whole force of the union to a point, the better to repel foreign invasion, and the more successfully to defend themselves.

Sherman was no novice in discussing rights, he was chosen by Madison to sit on the committee that worked out the kinks between the House and Senate versions of the BOR. Yet above he mixes personal right of defending self and property with the political right, he even mixes in the right of states to defend their rights by force of arms.


Another funny thing is how the Heller dissent avoided discussion the earliest state court cases regarding the RKBA.

======================================


Now Glenn, hows about you stop stalling, How does a right to keep and "do military service" make any sense?

[Glenn Vardy]

115. You're side-stepping all over this forum.

Below is my earlier post to Iverglas, which I directed you to in my previous post for what "bear arms" means, but which apparently you could not find:

Address the matter at hand. What does "bearing arms" mean in this provision from Pennsylvania's Declaration of rights?

"..nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent."

[hansberrym]

119. Same as elsewhere.

to carry arms as in preparation for confrontation.

Quakers would not "bear arms", meaning "carry arms in case of confrontation", in any case; not to defend themselves, and not to defend the state. That the CO provision prevents Quakers from being compelled to "bear arms" in service of the state, does not prove that the words "bear arms" were used exclusively in regard to the carrying of arms in service of a state organized militia. Your entire line of argument relies on a non-sequitor.

That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service when necessary, or an equivalent thereto: But no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives: Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent, nor are the people bound by any laws, but such as they have in like manner assented to, for their common good.



Why do you insist an a narrow reading for "bear arms" in one provision of the PA Constitution which can only be sustained by reliance on a non-sequitor and ignoring what was said about "bear arms" in the rights provision of the PA Constitution by well informed persons of the time?


Let's see what James Wilson had to say about "bear arms" in the provision concerning the right to bear arms:
With regard to the first, it is the great natural law of self preservation, which, as we have seen, cannot be repealed, or superseded, or suspended by any human institution. This law, however, is expressly recognized in the constitution of Pennsylvania. “The right of the citizens to bear arms in the defence of themselves shall not be questioned.” This is one of our many renewals of the Saxon regulations. “They were bound,” says Mr. Selden, “to keep arms for the preservation of the kingdom, and of their own persons

[Glenn Vardy]

144. EVERYTHING!!!!

"Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent..."
-----------------------------------

Glenn asked:
"What does "bearing arms" mean in this provision?"


hansberrym replied:
"Same as elsewhere, to carry arms as in preparation for confrontation."

--------------------------------

Presumably, you mean "carry arms while serving in the state militia."

And they were referring ONLY to the kind of arms that an objector could "carry?" Could he still have been compelled to operate the cannons because they're not carried? "Bearing arms" encompasses everything to do with military service and doesn't refer to picking up weapons.

[hansberrym]

146. Try again.

The right of the people to keep and "do military service"? That doesn't make sense.



Presumably, you mean "carry arms while serving in the state militia."

No, that would be Heller dissent's interpretation. Why do you suppose they dissent did not settle on your meaning? Because it does not fit the actual text of the Second Amendment. What is the idiomatic meaning of "keep and bear arms"? That is what you should be asking if you want to interpretate 2A.

[Glenn Vardy]

151. Address the material being discussed in this thread.

"Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent..."
-----------------------------------

And they were referring ONLY to the kind of arms that an objector could "carry?" Could he still have been compelled to operate the cannons because they're not carried? "Bearing arms" encompasses everything to do with military service and doesn't refer to picking up weapons.

You always introduce a different argument or different matterial than that being discussed in each thread. That's when you lose by default.

[iverglas]

155. if you ever manage to make sense

of a sentence typed by our friend here, you will be a better homo sapiens than I am, Gunga Vardy.


(ps - I've been at it for a few years, or rather was at it; gave it up as a bad job)

[hansberrym]

160. The Second Amendment is not being discussed in this thread? That is

ridiculous.

You cannot fit the meaning you urge for "bear arms" into the text of the second amendment, so you insist in discussing only the portion of the amendment that was rejected, while refusing to discuss the actual ratified text, or even the rest of the draft text of the second amendment.

I will add Evidence Barring to the list of logical fallicies you have relied on thus far.

The Stevens' dissent also relied on Evidence Barring of a sort(they denied that the earliest state court cases were relevant to the discussion, or that the various state right to arms provisions were analogous to the RKBA of 2A.), but your refusal to test your definition of "bear arms" with the actual text of the second amendment takes the cake in terms of evidence barring.

Back to the PA provisions:
The thing to do when a definition does not match exactly in every known instance is not to reach for a bigger hammer or pretend the other evidence does not exist, but simply adjust the definition to give a better fit. I agree that "bear arms" includes to the use of arms which cannot be "carried" in the literal sense by a single person, so a more precise definition might be to carry/use arms in case of confrontation. Quakers would not use knives, swords, pistols, long guns, or cannon against another.


Your defintion still does not fit into the Second Amendment.

[Glenn Vardy]

163. The more "precise" definition

a more precise definition might be to carry/use arms in case of confrontation

That would give us: "The right of individuals to own and use cannons in case of confrontation, shall not be infringed."

Is this in case of conflict with another person?

[Glenn Vardy]

162. "No?"

"That the people have a right to bear arms for the defence of the themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."

"That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of the protection, and yield his personal service, when necessary, or an equivalent thereto; but no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives; nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law, but such as they have, in like manner, assented to, for their common good."
---------------------------------------------------------------

hansberrym:
"Did you completely miss that "bearing arms" was used as the action of an individual in your second cite?" here it is: "nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent ""

Glenn:
"What is the activity that that individuals could pay to be excused from? It ain't carrying guns for their own self defence, it's militia service."

hansberrym:
"The activity is "bearing arms",.. what does that mean?....."

Glenn
"I answered that question when I said "It ain't carrying guns for their own self defence, it's militia service." Your turn."

hansberrym
"...to carry arms as in preparation for confrontation."

Glenn
"Presumably, you mean "carry arms while serving in the state militia.""

hansberrym
"No."
======================================

So, what exactly wouldn't a man be compelled to do "if he will pay such equivalent."

[hansberrym]

168. No

So, what exactly wouldn't a man be compelled to do "if he will pay such equivalent."

Bear arms. A person who is conscientiouly scroupulous of bearing arms, would not be forced to bear arms. What does "bear arms" mean? Carry arms in case of confrontation. See my earlier post to Iverglas for more details. If you can't find that post, surely you can find one the many posts that I cut and pasted it to for your benefit.


You are like a broken record. But no matter how many times you go through this excercise, your definition of bear arms will not fit into the second amendment. You can go on insisting that your definition fits with the PA CO provision ad infinitem, but so does the Heller majority's defintion of "bear arms", so what do you have?

If you want to keep riding your merry-go-round, you don't even need a someone to argue with, just reread the posts over and over.

[Glenn Vardy]

169. Stubbornness

"That the people have a right to bear arms for the defence of the themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."

"That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of the protection, and yield his personal service, when necessary, or an equivalent thereto; but no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives; nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law, but such as they have, in like manner, assented to, for their common good."
---------------------------------------------------------------

hansberrym:
"Did you completely miss that "bearing arms" was used as the action of an individual in your second cite?" here it is: "nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent ""

Glenn:
"What is the activity that that individuals could pay to be excused from? It ain't carrying guns for their own self defence, it's militia service."

hansberrym:
"The activity is "bearing arms",.. what does that mean?....."

Glenn
"It's militia service. Your turn."

hansberrym
"...to carry arms as in preparation for confrontation."

Glenn
"Presumably, you mean "carry arms while serving in the state militia.""

hansberrym
"No."

Glenn
"So, what exactly wouldn't a man be compelled to do "if he will pay such equivalent.""

hansberrym
"Carry arms in case of confrontation."
-----------------------------------------------------------

He'd pay to be excused from "carrying arms," but NOT from carrying arms "while serving in the militia?" You're clearly just refusing to say it.

[hansberrym]

175. More like obstinance.

He'd pay to be excused from "carrying arms," but NOT from carrying arms "while serving in the militia?" You're clearly just refusing to say it.

That is the Heller dissent's definition (Carrying arms in service of a state organized militia). Stevens' whined and whined that his side should have won because his interpretation for "bear arms" fit textually with both the draft with CO provision and the ratified amendment. However the dissent's version made no sense when applied to the various state RKBA provisions, nor did it fit with the earliest state court rulings, nor what was written at the time about the RKBA of the second amendment. It fit only a small portion of the facts.

But the dissent's version is a notch better than yours, as at least Stevens can make the claim that his interpetation of "bear arms" fits both the CO provision and the ratified text of 2A, your's only plausibly fits the CO provision.

How does this make any sense: the right of the people to keep and "do military service," shall not be infringed?

[Glenn Vardy]

179. You can't move

"That the people have a right to bear arms for the defence of the themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."

"That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of the protection, and yield his personal service, when necessary, or an equivalent thereto; but no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives; nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law, but such as they have, in like manner, assented to, for their common good."
---------------------------------------------------------------

hansberrym:
"Did you completely miss that "bearing arms" was used as the action of an individual in your second cite?" here it is: "nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent ""

Glenn:
"What is the activity that that individuals could pay to be excused from? It ain't carrying guns for their own self defence, it's militia service."

hansberrym:
"The activity is "bearing arms",.. what does that mean?....."

Glenn
"It's militia service. Your turn."

hansberrym
"...to carry arms as in preparation for confrontation."

Glenn
"Presumably, you mean "carry arms while serving in the state militia.""

hansberrym
"No."

Glenn
"So, what exactly wouldn't a man be compelled to do "if he will pay such equivalent.""

hansberrym
"Carry arms in case of confrontation."

Glenn
"He'd pay to be excused from "carrying arms," but NOT from carrying arms "while serving in the militia?" You're clearly just refusing to say it."

hansberrym
"That is the Heller dissent's definition (Carrying arms in service of a state organized militia)."
-----------------------------------------------------------

I'm asking YOU if YOU think the payment mentioned IN THE PROVISION ABOVE is to exempt a "man" from "carry arms while serving in the state militia" You can't move.

[hansberrym]

181. I can move, apparently so can you.

I see you are no longer asking what "bear arms" means. Now you are asking what "personal service" means.

But you continue with the misdirection game by inserting defintions that you know are not mine.
{b]"He'd pay to be excused from "carrying arms," but NOT from carrying arms "while serving in the militia?" You're clearly just refusing to say it."
In your text above, just what is the definition for bear arms? And what is the Service? Your entire arguemnt relies on misdirection. My defintion for "bear arms"(the Heller majority's) is simply not the same as the Heller dissent's.


Possible meanings for "Bear arms":
Literal........................"Carry arms"
Heller majority(&mine)...."Carry arms in case of confrontation" (not limited to a single purpose)
Heller dissent..............."Carry arms in service of the state organized miltia"
Glenn Vardy's..............."do military service"


-A person who is who is conscientiously scrupulous of "bearing arms" (my meaning: carry arms in case of confrontation)won't be compelled to do so.
-The "equivalent" is paid in place of "personal service".
-The "personal service" required is to "bear arms"(Carry arms in case of confrontation) for the protection of the society, note that the elements of protection of society, "service" and being "bound"(duty) are already stated, to include them again within the definition of "bear arms" as the heller dissent does is redundant.

I am puzzled why do you seem to want me to accept the Heller dissent's defintion, since you have rejected it for yourself?

My opinion is the Heller majority had the best argument(best fit with all the evidence, the CO provision, the RKBA provision, the state RKBAs, earliest state court cases, and commentary of the time), and so that is what I consider my argument. Why do you keep asking me about the Heller dissent's argument? Why don't YOU write Justice Stevens and ask him about that cannon thingy, you know, why does Stevens think "bear arms" means to "carry arms in service of the state organized militia?" Maybe he imagines people were much stronger in days of yore?
Or maybe he knows it is pointless to try to sledgehammer a figurative expression into the RKBA clause of the second amendment.


How does a right to keep and "do military service" make any sense? You've been stuck on this one for awhile, maybe YOU can't move, or are stalling, or perhaps dodging, and I am thinking hell will freeze before I get an answer.

[Glenn Vardy]

185. Keeping your options open

"That the people have a right to bear arms for the defence of the themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."

"That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of the protection, and yield his personal service, when necessary, or an equivalent thereto; but no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives; nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law, but such as they have, in like manner, assented to, for their common good."
---------------------------------------------------------------

hansberrym:
"Did you completely miss that "bearing arms" was used as the action of an individual in your second cite?" here it is: "nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent ""

Glenn:
"What is the activity that that individuals could pay to be excused from? It ain't carrying guns for their own self defence, it's militia service."

hansberrym:
"The activity is "bearing arms",.. what does that mean?....."

Glenn
"It's militia service. Your turn."

hansberrym
"...to carry arms as in preparation for confrontation."

Glenn
"Presumably, you mean "carry arms while serving in the state militia.""

hansberrym
"No."

Glenn
"So, what exactly wouldn't a man be compelled to do "if he will pay such equivalent.""

hansberrym
"Carry arms in case of confrontation."

Glenn
"He'd pay to be excused from "carrying arms," but NOT from carrying arms "while serving in the militia?" You're clearly just refusing to say it."

hansberrym
"That is the Heller dissent's definition (Carrying arms in service of a state organized militia)."

Glenn
"I'm asking YOU if YOU think the payment mentioned IN THE PROVISION ABOVE is to exempt a "man" from "carry arms while serving in the state militia." You can't move.

hansberrym
"I see you are no longer asking what "bear arms" means. Now you are asking what "personal service" means. But you continue with the misdirection game by inserting defintions that you know are not mine.

-----------------------------------------------

You can't answer any of the questions because your argument would fall apart. In fact, it's fallen apart anyway.

Due to the fact that you won't answer any questions so that you can always backtrack, I have no option but to form an opinion on what you've said in the posts above. YOUR position seems to be that a payment would be made to excemt a man from carrying guns, but it's nothing to do carrying guns while serving in the militia.

That would leaves us with:
"..nor can any man, who is conscientiously scrupulous of carrying guns for private purposes, be justly compelled thereto, if he will pay such equivalent;..."

Paying to be excused from exercising a personal right?

[hansberrym]

187. See my post #141 copied here for your enjoyment, with an addiitonal comment.

You say "keeping my options open", I say settling on an interpretation that best fits all the evidence. You might want to think about keeping your options open instead of insisting on a meaning for bear arms that can't be hammered into the RKBA of 2A.

I'll leave you with this question: What sense does it make to speak of a right to keep and "do military service?"


posted previously as #141:
==========================
You have sustained your arguments here by employing a series of logical fallicies.

The False dichotomy : In discussing the CO provisions you set up a false dichotomy in which "bear arms" can only mean "carrying weapons for self defense" or "service in the militia". It is a old trick of the anti's, and still works on some, at least for a little while.

The non-sequitor: that one could be compelled to bear arms in service of the state does not mean that is the only possible way one could bear arms.
(as an aside, when one considers the rights clauses of the various state RKBA provisions, it is downright silly to claim that the people were guaranteed nothing more than a right to "carry arms in service of the state organized militia" as Stevens' dissent defined "bear arms".)

Misdirection: in discussing the CO provisions, you have misstated the meaning the Heller majority ascribed to "bear arms". Do you see the difference between "carrying arms", "carrying arms in case of confrontation", and "carrying arms in service of a state organized militia"? The majority in Heller settled on "carrying arms in case of confrontation", while the dissent in Heller insisted on the more specific "carrying arms in service of a state organized militia" because that got them what they wanted. But the obvious question to Stevens et. al. is this; are not persons in the regular US Army "bearing arms"?, or do these words only apply to persons in service of the state organized militia? The answer is obvious and Stevens' neatly tailored definition is hopelessly narrow, it can't fit well anywhere but his very limited set of facts.


Unlike Stevens', you are argueing that the RKBA is a collective right, a position now thoroughly rejected in scholarship and in SCOTUS. You claim that "bear arms" has only the idiomatic meanings “to serve as a soldier, do military service, or fight”. And while the dissent in Heller presented those 3 possible meanings, it knew full well those meanings could not be force fitted into the actual text of the Second Amendment as it makes no sense to speak of a right to keep and "do military service", and so they opted for a more tailored approach. Your idiomatic reading is further undermined by quotes from the founding era, as well as the earliest state curt cases.

In conclusion, the coup de gras for the Collective Rights theory was of course US v. Heller, but scholarship had chipped away at it for several years prior, and the progeny of Heller have made sure it will remain dead. You should not be blaming Halbrook for slaying the Collective Rights theory, your true opposition is Saul Cornell as he thoroughly exposed the Collective Rights theory's left flank, and his work was in my estimation a large part of the reason that the Heller court found 9-0 that the RKBA was an individual right.

[Glenn Vardy]

189. This is the second time......

.....that you've posted this because the argument you were making in each thread collapsed.

[Glenn Vardy]

191. "Ancient phraseology."

"I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its power. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense." - James Madison to Henry Lee, June 25, 1824.

[Surf Fishing Guru]

138. Your "evidence" is dead letter . . .

In 1790 PA held a constitutional convention to rewrite certain things to conform to the federal Constitution. Some provisions were removed and some were added to the Declaration of Rights. While the second excerpt you post (That every member of society hath a right to be protected . . . ") is evident in the 1776 constitution it does not appear in the 1790 constitution nor any later revision. The same holds true for Vermont; the passage appears in their 1777 and 1783 versions but is gone from the 1793 version. This reflects the federal militia powers conferred in Art I, § 8 of the federal Constitution.

My statement challenging your position still stands . . .

I said, "Again, rights are declared and excepted out of the powers being granted to government. The rights are listed in those state constitutions before a shred of power is granted, defined or established."

Because these governments can only act according to those conferred powers those things not conferred by the citizens are retained by the citizens. Calling out the rights of the citizen before any powers are granted to government means that the principles of those liberty interests are the unyielding benchmarks of the legitimacy of the following delegated powers.

Section 26 (enacted in 1790) makes this principle very clear:

• Sect. XXVI. To guard against the transgressions of the high powers which we have delegated, WE DECLARE, That everything in this article is excepted out of the general powers of government, and shall for ever remain inviolate.

That means the entirety of Article I are exempt from the legislature's purview.

The recognition and establishment of the "general, great, and essential principles of liberty and free Government" is the purpose of the Declaration of Rights and these fundamental liberties of the citizen are not subject to review or limitation.

When the Declaration of Rights begins with:

• Section I. That all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property and reputation, and of pursuing their own happiness.

An interpretation of say a later (1874) clause on militia powers:

• The freemen of this Commonwealth shall be armed, organized and disciplined for its defence when and in such manner as may be directed by law. The General Assembly shall provide for maintaining the militia by appropriations from the Treasury of the Commonwealth, and may exempt from military service persons having conscientious scruples against bearing arms.

Can't be legitimately interpreted to retroactively extinguish the right to personal self defense recognized in §1 and armed self defense in §21.

[Atypical Liberal]

30. Who is Stephen P. Halbrook?

[MicaelS]

33. Pro RKBA Attorney and writer

http://www.stephenhalbrook.com/

List of books and articles at the above link.

[Kennah]

39. A few state constitutional RKBA mention hunting vis-a-vis bearing arms. Most do not.

http://www2.law.ucla.edu/volokh/beararms/statecon.htm

[Glenn Vardy]

40. All recent provisions

There are six that mention "hunting" as ONE of the purposes for the provision. Five of them are from the 1980's and one is from the 1990's. These provisions DON'T give us ANY clue as to what the FOUNDERS meant by "bear arms" in the founding period.

This one doesn't mention hunting, but it CLEARLY shows how the framers of these recent provisions were trying to make a statement.

Alaska: "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 individual right to keep and bear arms shall not be denied or infringed by the State or a political subdivision of the State. Art. I, § 19 (first sentence enacted 1959, second sentence added 1994).

If they thought that the original language protected an "individual" right, why have they repeated the same thing again? What's the purpose of keeping all of the original?

Anyway, none of what you've posted shows that my comments about Halbrook's work are wrong.

[gejohnston]

41. first half is an interesting question.

I don't know about clearly, unless you have writings or interviews of these people.

Maybe because most of us don't know who in the hell Halbrook is or read any of his work. I heard of him, but never read any of his stuff. For all I know, you both could be wrong some degree and correct in others.

[Glenn Vardy]

46. Even when......

.....Halbrook writes something that's correct, his method is to exagerate the importace of insignificant little things while diverting attention away from, or ignoring, more important material. For example, he's wrote a whole book on four provisions that refer to the defence of "themselves." He thinks that THAT'S a reference to individuals and "self" defence without offering any proof from the FOUNDING era. But the word "themselves" isn't even IN the Second Amendment. The only thing mentioned there is the "security" of the "State."

[gejohnston]

51. Whatever

Like I said, I have not read any of his stuff especially this one, so I'm leaving the whole thing alone. I have not researched your stuff either.
Like Obama, I see the Constitution as a set of negative rights. There is also the ninth amendment. Based on those, I question the relevance of his book and your counter points.

[Surf Fishing Guru]

52. You are blinded by your anti-liberty agenda

This one doesn't mention hunting, but it CLEARLY shows how the framers of these recent provisions were trying to make a statement.

Alaska: "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 individual right to keep and bear arms shall not be denied or infringed by the State or a political subdivision of the State. Art. I, § 19 (first sentence enacted 1959, second sentence added 1994).

If they thought that the original language protected an "individual" right, why have they repeated the same thing again? What's the purpose of keeping all of the original?

When admitted to the Union, Alaska believed it prudent to just incorporate the federal 2nd Amendment for their right to arms provision. The spectre of draconian federal gun control in the 80's and 90's supported by the illegitimate collective / militia right interpretation of the federal provision drove many state legislatures (Alaska, Delaware, Nebraska, Nevada, North Dakota, South Dakota, Utah, West Virginia and Wisconsin) to either enact new RKBA provisions or amend their constitutions to unequivocally declare and secure the individual nature of the right to arms and/or declare and secure the right to armed self defense for their citizens.

Alaska is a perfect example of the absurdity of the collective / militia right interpretation of the 2nd. The states in 1791 believed the 2nd was no threat to their citizen's right to arms. With the perversion of the 2nd begun in 1942 and the subsequent federal threats to liberty beginning in 1968 and peaking in the mid-90's with Brady, the states considered the 2nd Amendment no longer a friendly provision but a threat to their citizens that demanded a state constitutional response . . .

[iverglas]

53. for all your quite unpleasant words

-- yeesh, that's some bold talk in your subject line -- you didn't really answer the question at all, did you?

C'mon, I'm reading this thread for the educational value. Can you really do no better than that?

Looks like a guy named Wally Hickel was governor of Alaska in 1994. Republican.

And that would have been the eighteenth legislature. Republican majorities in both houses.

I was just curious, eh?

[Surf Fishing Guru]

57. Strong words are appropriate for usurpers.

you didn't really answer the question at all, did you?

Of course I did. The 1994 addition was not an expansion of the right recognized and secured by the prior wording, it just made a definitive statement as to the nature of the right at a time when said nature was being questioned/challenged federally.

Looks like a guy named Wally Hickel was governor of Alaska in 1994. Republican.

And that would have been the eighteenth legislature. Republican majorities in both houses.

I was just curious, eh?

So?

The Alaska legislature may call a constitutional convention at any time and propose amendments by 2/3 vote but the proposed amendment is placed on a ballot to be ratified or rejected by the citizens.

Do you have a problem with this democratic method of constitutional amendment?

I'm just curious.

[iverglas]

76. you might want to check what words are appropriate

at the particular point in the space-time continuum where you have landed.


The 1994 addition was not an expansion of the right recognized and secured by the prior wording, it just made a definitive statement as to the nature of the right at a time when said nature was being questioned/challenged federally.

Piss-poor way of writing one's foundational documents, actually. Not uncharacteristic of the right wing, of course, which would turn all the constitutions in the US (and elsewhere) into total dog's breakfasts if it had its way. You know, an equal protection clause here, a ban on same-sex marriages there, here a right, there a violation of a right, everywhere a stupid and incoherent mess ...

In a foundational document, one really wants to say what one means and mean what one says, and make the whole thing make sense. Failure there, then.


The Alaska legislature may call a constitutional convention at any time and propose amendments by 2/3 vote but the proposed amendment is placed on a ballot to be ratified or rejected by the citizens.
Do you have a problem with this democratic method of constitutional amendment?
I'm just curious.

Actually, I can't answer that question. It's loaded with an unproved premise (and thus in itself demonstrates your contempt for civil discourse and democratic discourse). I contend that the premise is false, but the fact that it is unproved, leaving you begging your question, is enough to reject it.

But let's pretend it was a decent question, for which purpose we will have to rephrase it:

Do you have a problem with this method of constitutional amendment?

Yes, very much so.

First, for the reasons stated above. It evidently produces incoherent puddles of words rather than the kind of instrument a polity needs to guide its policy-making.

Second, because it is not democratic in any modern sense of the word. This is a significant point that would have founded my strong objection to the process you describe even had you not tossed the word "democratic" into your improper question.

What happens when 2/3 of the eligible voters who actually vote decide to amend the constitution to, oh, prohibit same-sex marriage? Then the legislature could pass laws making it a crime to perform a same-sex marriage ... And that's just a mild example of what a majority vote could do.

Constitutions are actually intended to prevent exactly that happening, in the modern version of democracy: liberal democracy (you live in one, much as it might gall you) -- to prevent any segment of the public, no matter how large, from taking rights away from any other segment. A constitution simply does not guarantee rights to individuals and then take them away from certain classes of individuals, for example.

Certainly this can happen when the amendment process provides for a vote by the legislature rather than by the electorate. It's just less likely to, since the legislature operates in public and is expected to explain and justify its actions publicly, and its explanations are subject to public scrutiny, making it less likely that an incoherent measure or a blindly bigoted measure will be adopted. But it can happen. In which case, the minority that was victimized by the measure would have no option but to ... take up arms against tyranny! Of course, the problem would be that the tyranny it was up against was the tyranny of the majority, so it might want to just sit on its hands rather than take up arms.

There are no guarantees of anything at all ever, obviously. The only guarantee of anyone's exercise of rights is the goodwill of their neighbours. All that can be done is make it difficult for ill will to prevail. The USAmerican ideology, that shooting it out with tyrants is the way to do that, has not once in US history been vindicated.

Constitutions that guarantee fundamental rights, like liberty and equal protection of the law, and then claw back those rights from certain classes of people, for example, do not rise to the label of "constitution", let alone to the standard of "democratic" in any but the most primitive sense. If we lived in Ancient Greece, your question might not be what it is.

But hey, I'm pretty sure Ron Paul would approve!

[Glenn Vardy]

55. Liberty

You are blinded by your anti-liberty agenda

Knowing the true purpose and meaning of the Second Amendment isn't the same as having an anti-liberty agenda. In fact, distorting the meaning of the Second Amendment takes away the liberty of the people of every State to control the private use of guns if they freely choose to do so.

The spectre of draconian federal gun control in the 80's and 90's supported by the illegitimate collective / militia right interpretation of the federal provision

So, because you said the collective right interpretation is "illegitimate," it IS illegitimate? Just like Halbrook, you offer NOTHING to support your assertions.

The states in 1791 believed the 2nd was no threat to their citizen's right to arms.

Where are the phrases "the people" and "bear arms" in that sentence? And why have you used the word "citizen's?"

Gun rights and the power to regulate the private use of guns were matters left to the individual states. The Second Amendment is a militia amendment.

[gejohnston]

56. can you clarify something

Gun rights and the power to regulate the private use of guns were matters left to the individual states. The Second Amendment is a militia amendment.

Are you saying the founders would frown on even the current federal gun laws? Registering machine guns should be left to the states instead of the feds? Barring felons from possessing?

here are the phrases "the people" and "bear arms" in that sentence? And why have you used the word "citizen's?"

How is that not a distinction without a difference?

[Glenn Vardy]

59. Federal gun laws

Are you saying the founders would frown on even the current federal gun laws?

Congress has no power to enact gun laws that have nothing to do with the militia forces in Article 1, Section 8 (As far as I know, but I could be wrong). In my opinion, the Founders would be more likely to frown on the removal of the militia amendment from the BoR than Federal laws clearly intended to keep the public safe from gun violence.

[Surf Fishing Guru]

61. A corrct statement for a change . . .

Congress has no power to enact gun laws that have nothing to do with the militia forces in Article 1, Section 8 . . .

Wow! that's amazing!

Correct, no power was ever granted to government to impact in any manner the personal arms of the private citizen. Congress is granted power to direct active militia members and to enact regulations establishing the organizational structure, code of discipline and regimen of training to be performed by the states, but no power exists to dictate to the private citizen anything regarding his personal arms.

All the 2nd Amendment does is to redundantly declare that those never granted powers to infringe on the people's right to arms shall never be invented.

[Glenn Vardy]

65. Let's see your honesty

no power was ever granted to government to impact in any manner the personal arms of the private citizen.

You should have placed the word "Federal" before "Government, shouldn't you?

The States retained that power, didn't they?

[Surf Fishing Guru]

70. Right back at you!

You should have placed the word "Federal" before "Government, shouldn't you?

The States retained that power, didn't they?

It is accepted by most Americans that, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

So, we must then inspect the state constitutions for that power . . .

And we find that, "no power was ever granted to government to impact in any manner the personal arms of the private citizen."

[iverglas]

78. "no power was ever granted to government to impact in any manner ...

... the personal arms of the private citizen."

I know the intrusion isn't particularly welcome, but I just can't help being curious. I was curious about that one, and where it may be "found".

It may be found on the internet only in two places.

Both are posts at discussion boards. Both are by the same username. You? Or someone you consider authoritative enough to quote, for some reason?

:rofl:

Governments in the US do have criminal law powers, no?

[Surf Fishing Guru]

137. Probably me, it is a favorite theme of mine . . .

The statement that, "no power was ever granted to government to impact in any manner the personal arms of the private citizen" is only a restatement of one of the primary Federalist positions on why adding a bill of rights to the US Constitution was absurd, unnecessary and dangerous.

I use it when I encounter people like you (and the OP) that center their arguments on the wording of bill of rights provisions, squeezing and massaging and applying modern definitions without any knowledge of or appreciation for the fundamental liberty principles embraced by the founders / framers.

I use that line of thought to counter arguments of people like you (and the OP) that read the provision as a permission slip that only "allows" the exact degree and amount of "rights" that they "interpret" government to give to the citizen through the 2nd Amendment. You fail to understand that the government can not mandate that the right to arms is conditioned and/or qualified because the government was never given any authority over the right to arms of the citizen . . . The government can not "give back" a limited, restricted form of something it never possessed.

I don't expect you to understand these principles and statements; your ideas about the Constitution and Bill of Rights demonstrate such profound ignorance of these founding principles you would need to be actually interested in learning about them instead of just "interpreting" the Constitution (and 2nd Amendment in particular) into validating proofs of your statist political agenda.

So, FWIW I'll superficially explain the statement: The US Constitution is a charter of conferred powers. All power was possessed by the people originally and they, when establishing government give up (surrender) a limited, precisely defined amount of power to government to perform its delegated duties. Government's power only extends to those precise enumerated powers which means:

EVERYTHING NOT CONFERRED IS RETAINED

Since no power was granted to the federal government to impact in any fashion the personal arms of the private citizen NO POWER EXISTS. If a person was clueless about his rights but wanted to learn their scope from reading the Constitution, the operation that explains what the federal right to arms is, is not an examination of the 2nd Amendment, it is an examination of the body of the Constitution for a grant of power permitting the federal government to act. Your (and especially the OP's) focus is perfectly backwards.

A framer statement of this principle is found in http://www.constitution.org/fed/federa84.htm">Federalist 84 which says in part:

• "I . . . affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."

That describes your arguments with such precision it sends chills up my spine. You unashamedly deconstruct a declaration that says government is powerless so you can misconstruct an interpretation that grants a regulating power . . .

You (and the OP) seem clueless that the Supreme Court has validated the Federalist's position. For 135 years and counting the Court has said the people's right to keep and bear arms "is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.". That means the tireless work trying to justify restricting the right to arms by examining and massaging and perverting the words of the 2nd Amendment - UPON WHICH THE RIGHT DOES NOT DEPEND - is an absurd endeavor that is nothing but mental masturbation that only pleasures you. If only people like you could keep this anti-liberty agenda in private too, we would all be better off.

[iverglas]

145. people like me

I use that line of thought to counter arguments of people like you (and the OP) that read the provision as a permission slip that only "allows" the exact degree and amount of "rights" that they "interpret" government to give to the citizen through the 2nd Amendment. etc. etc. etc.

Wanna hear the line I use on people who misrepresent what I say and think?


That describes your arguments with such precision it sends chills up my spine. You unashamedly deconstruct a declaration that says government is powerless so you can misconstruct an interpretation that grants a regulating power . . .

What describes you with 100% precision is that you are talking out the barrel of your gun without a fucking clue and have no hesitation to blow false statements around wherever you decide to aim it.

I wouldn't bother deconstructing whatever "declaration" you are maundering on about, let alone get up to the rest of what you are baselessly and foolishly accusing me of, essentially because I don't give a flying fuck and have way more interesting things to do with my time. Like I said: chicken entrails.

You people are stuck with an 18th century instrument written by people who lived in the 18th century in a particular place, and who were of a very particular class, and run yourselves in circles trying to divine what they thought and meant to say about something that is of the most utter and supreme irrelevance to the life of anyone in the 20th, let alone 21st century.

It seems you are indeed stuck with it for the foreseeable future, since I can't see any likelihood of any genuine process to come up with something more appropriate being initiated. We in Canada had an impetus to do that, and we did it, and as a result we have a modern constitution that has been the model for numerous others around the world in the last 30 years or so. When we want to apply it to our present-day lives, we don't go poking around in the diaries of the people who were at the table when it was signed. We look around us and consider what kind of life we really want to have and what kind of society we want to live it in.

I'm sorry that the neighbours don't seem to have this opportunity. This doesn't mean that I see any legitimacy in digging through the entrails of the 18th century to see what they tell anybody in this century they ought to be doing.

I just find it amusing when the people who do choose to engage in that black art trip themselves up as thoroughly and entertainingly as our friend here did with that Quaker nonsense. So just allow me my little giggles, and you can get back to your odd business.

[Surf Fishing Guru]

148. Yup, people like you.

The denigration of our founders and the claims of enlightenment beyond the understanding of stupid backwards US Americans are not qualities that instil trust. I'll tell you the difference between us; I consider anti-gunners misguided; you consider pro-gunners stupid.

You asked what the backstory is on my phrasing and I told you. There is not a single syllable in my post that is provably wrong; the arguments of anti-gun people fit the pattern I lay out perfectly and their actions certainly confirm the fears of the Federalists . . . Problem here is, you have no ability to discuss the actual points I raised so you just attack.

That you disagree so vehemently with my post and dismiss it as not worth your time tells me I am on the correct tack and reaffirms my belief about the typical actions of your kind.

[iverglas]

153. "I'll tell you the difference between us; ...

... I consider anti-gunners misguided; you consider pro-gunners stupid.

No clue what these strange "anti-gunners" and "pro-gunners" are. Nonsense words.

But I'll tell you the difference between me and gun militants, just in case you're interested.

I'm honest, and I'm not a card-carrying member of the racist, misogynist right wing.

And I am supremely confident in that assessment.

Certainly nothing you have said has altered it. :)



tags fixed

[Glenn Vardy]

150. Nature of the right?

You (and the OP) seem clueless that the Supreme Court has validated the Federalist's position. For 135 years and counting the Court has said the people's right to keep and bear arms "is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.".

What does that say about the NATURE of the right protected by the Second Amendment?

They read out an article from the STATE Constitution, then said the Second Amendment declares that "it" shall not be infringed, meaning the right to bear arms. They DIDN'T say that the nature of both was the same.

[Surf Fishing Guru]

152. Please quote what you refer to . . .

What does that say about the NATURE of the right protected by the Second Amendment?

That it is a right that pre-exists the Constitution. As opposed to the structure of the organized militia which is a product of the Constitution fully dependent upon the Constitution and laws enacted under the militia clauses for its existence.

The right to arms (like other fundamental rights) is above the plane of the Constitution; they do not flow from the legislative acts of man. By the Constitution's structure no governmental agency has any legitimate import on the extent of my rights, only of laws. This also extends to the courts including SCOTUS. As a creation of the Constitution their duty is NOT to determine if a right exists, or its scope, or whether it is popular, or whether the social impact outweighs holding the government to the constraints inherent in enumerated powers . . . The Court's only duty is to decide whether a challenged law was enacted beyond the strictly limited, clearly defined powers delegated to the legislature.

They read out an article from the STATE Constitution, then said the Second Amendment declares that "it" shall not be infringed, meaning the right to bear arms. They DIDN'T say that the nature of both was the same.

Are you speaking of Cruikshank?

What state constitution?

[iverglas]

154. "they do not flow from the legislative acts of man"

So ... tell us.

On whatever day that was, the great spaghetti monster created Bruce, and handed him an AK-47?

:rofl: :eyes:

[Surf Fishing Guru]

157. I wonder

What does "inherent" mean to you?

What do the intermingled tenets of conferred powers and retained rights mean to you?

If the right is not granted, given or established by the Constitution and exists without reference to the Constitution where does it come from?

[iverglas]

159. inherent -- and inalienable

What does "inherent" mean to you?

In the relationship between individual human beings and human groups, the groups acknowledge the inherent worth and dignity of each and every individual.

The result is the human consensus that individuals have inherent, inalienable rights: human rights. Rights that human beings have by virtue of being human beings, the nature of human beings including that they are members of human groups, and the rights being what fundamentally governs the relationship between the individuals and the groups.

What do the intermingled tenets of conferred powers and retained rights mean to you?

Not a fookin' thing, pal; not a fookin' thing. Intermingled word salad. Dug up from an 18th century graveyard of old weird ideas.

Modern human beings do not regard "government" as an alien reptile that arrived in their backyard one day and squatted on their societies.

Human groups to not "confer" powers on their governments or "retain" rights from their governments.

In our world, they choose governments to organize the existence and activities of the group, subject to the rights of the individuals. There's a lot more to it than that, of course, particularly in a liberal democracy, not to mention a social democracy. First-generation rights are still our common basis though: life, liberty and security of the person. But the "powers" are as inherent in the nature and existence of the group as the "rights" are in the individual. Governments are how groups exercise their powers, in our world.

If the right is not granted, given or established by the Constitution and exists without reference to the Constitution where does it come from?

Us, friend. Us. It doesn't exist if there isn't an us.

[Name removed]

164. Deleted message

Sub-thread removed by moderator. Click here to review the message board rules.

[Glenn Vardy]

171. "Inherent right."

PENNSYLVANIA DECLARATION OF RIGHTS.

III. "That the people of this State have the SOLE, EXCLUSIVE and *INHERENT* right of governing and regulating the internal police of the same."

[iverglas]

184. oh, no, Paco

Is that a collective right I see there?!?1?

Or maybe the people each get to do it on rotating days ...

[Glenn Vardy]

186. It gets worse

Yes, an "inherent" collective right.

Here's an UNALIENABLE collective right:
VII. "Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men; Therefore the people alone have an incontestible, UNALIENABLE, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it."

[Glenn Vardy]

156. Nice ducking

Repeat: What does that say about the NATURE of the right protected by the Second Amendment?

Saying that it pre-exists the Constitution doesn't answer the question.

[Surf Fishing Guru]

158. Huh?

Please tell me you understand the difference between inherent, constitutional and civil rights . . .

[iverglas]

161. funny, but I'm not having any difficulty understanding the question

at all.

Could I presume to try to reframe it in a way that might help?

What does that say about the NATURE of the right protected by the Second Amendment?

If I were to say:

What does that say the right protected by the Second Amendment IS?

[Surf Fishing Guru]

166. Sure, let's examine that . . .

What does that say the right protected by the Second Amendment IS?

Well, given the focus of the case were freshly minted citizens, former slaves carrying a shotgun as they walked down the road in Louisiana after voting and then being disarmed, tortured and lynched, perhaps the question to be asked is, what is the nature of ALL of the rights claimed to be violated by Cruikshank et-al? Why the need to dissect out the right to arms?

Hmmmmmm, let's see how the Court saw it (from the original indictment) . . .

The right of two citizens of the United States, "of African descent and persons of color," to "exercise and enjoy their "lawful right and privilege to peaceably assemble together with each other and with other citizens of the said United States for a peaceable and lawful purpose."

Their "right to keep and bear arms for a lawful purpose."

Their right to be free from depravation, "of their respective several lives and liberty of person, without due process of law."

Their right of, "free exercise and enjoyment of the right and privilege to the full and equal benefit of all laws and proceedings for the security of persons and property' enjoyed by white citizens."

To be free "in the exercise and enjoyment of the rights, privileges, immunities, and protection granted and secured to them respectively as citizens of the said United States, and as citizens of the said State of Louisiana, by reason of and for and on account of the race and color' of the said persons."

Their right of, "the free exercise and enjoyment of the several and respective right and privilege to vote at any election to be thereafter by law had and held by the people in and of the said State of Louisiana."

To not be, "put in great fear of bodily harm, injure, and oppress' the same persons, 'because and for the reason' that, having the right to vote, they had voted."

And finally, all the rights listed in the constitution, "in their several and respective free exercise and enjoyment of every, each, all, and singular and several rights and privileges granted and secured' to them 'by the constitution and laws of the United States."

And of course the Court corrected the statement of the indictment regarding "granted" rights . . .

So, what is the nature of those rights?

What would lead you to believe the right secured by the 2nd Amendment is any different?

Why, why, why does this need to be explained to you?

[Glenn Vardy]

172. What the COURT said

What would lead you to believe the right secured by the 2nd Amendment is any different?

You need to show that the COURT said the nature of both provisions is the Same.

[Surf Fishing Guru]

174. OK

You need to show that the COURT said the nature of both provisions is the Same.

The Court examines the 1st and 9th counts of the original indictment (assembly) then turns to the 2nd and 10th counts (right to arms):

"The first and ninth counts state the intent of the defendants to have been to hinder and prevent the citizens named ("Levi Nelson and Alexander Tillman, citizens of the United States, of African descent") in the free exercise and enjoyment of their "lawful right and privilege to peaceably assemble together with each other and with other citizens of the United States for a peaceful and lawful purpose."

The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. . . . It was not, therefore, a right granted to the people by the Constitution. The Government of the United States, when established, found it in existence, . . .

The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. . . .

The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. . . ."

The arguments regarding the right to assemble are congruent with the right to arms and can be read as flowing through both expositions. The Court feels that both emanate from a plane other than the Constitution because they predate the Constitution. The Court also believes that each right's enumeration in the Bill of Rights is only an acknowledgement of the right's existence, not an establishing statute and acts as a prohibition on Congress' ability to arbitrarily violate the citizen's rights.

[Glenn Vardy]

177. "lawful purpose?"

You still haven't shown what I asked.

Isn't bearing arms for "the security of a free State" a "lawful purpose?"

I've searched for the whole of the provision "bearing arms for a lawful purpose" and I can't find it.

[Surf Fishing Guru]

183. Christ on a Pink Pony ...

You sure are making this as difficult as possible for yourself . . .

Levi Nelson and Alexander Tillman, citizens of the United States, of African descent were "bearing arms for a lawful purpose" (for self defense as they were not members of any state militia) walking down a road in Grant Parish, Louisiana having just voted in a contentious election.

They were attacked, disarmed, tortured and lynched. These murders are considered part of the Colfax Massacre although they did not occur at the Colfax Courthouse.

The phrase "bearing arms for a lawful purpose" is from the original indictment of Cruikshank, the conviction on those counts was what the Supreme Court was reviewing.

It is interesting the Court twice corrects the statement in the indictment that rights are granted by the Constitution but leaves the phrase "bearing arms for a lawful purpose" standing as a analogous reference to the right secured by the 2nd Amendment.

The Court in Presser quotes Cruikshank to re-affirm the origin of the right to arms but discards the Cruikshank indictment phrase and simply says:

• "It was so held by this Court in the case of United States v. Cruikshank, 92 U. S. 542, 92 U. S. 553, in which THE CHIEF JUSTICE, in delivering the judgment of the Court, said that the right of the people to keep and bear arms "is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. . . . "

The right of two former slaves (not members of any state militia) to walk down the street in 1873 Louisiana with guns for self defense, was considered "bearing arms for a lawful purpose". This action and wording was considered unremarkable and perfectly acceptable by the Supreme Court and interchangeable with the specific guarantee of the 2nd Amendment.

[Glenn Vardy]

188. Own assertion as evidence

Surf Fishing Guru said thet the court:
"leaves the phrase "bearing arms for a lawful purpose" standing as a analogous reference to the right secured by the 2nd Amendment."

You can't show where the court SAYS that the nature of the right secured by the Second Amendment is a right for individuals to carry guns for any lawful purpose, so YOU blatently assert that THAT'S what they "leave standing."

How can so much be read into the word "it" used while brushing aside the Second Amendment? "It" is just a reference to the right to bear arms and says NOTHING about the NATURE of the right. And I asked if bearing arms for the security of the State was a "lawful purpose."

United States v. Cruikshank
"..is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress."

[Surf Fishing Guru]

204. All one needs to do is read and comprehend . . .

Surf Fishing Guru said thet the court:
"leaves the phrase "bearing arms for a lawful purpose" standing as a analogous reference to the right secured by the 2nd Amendment."

You can't show where the court SAYS that the nature of the right secured by the Second Amendment is a right for individuals to carry guns for any lawful purpose, so YOU blatently assert that THAT'S what they "leave standing."

The Court does not suffer errors in understanding or incorrect explanations in the documents and arguments they are hearing or reviewing . . . The Court twice corrects the indictment's statement that these rights are "granted" by the Constitution but it leaves standing the indictment's charge that Cruikshank violated the 2nd Amendment rights of two Freedmen; the Court left standing the indictment's statement / characterization of that right as "bearing arms for lawful purpose".

How can so much be read into the word "it" used while brushing aside the Second Amendment? "It" is just a reference to the right to bear arms and says NOTHING about the NATURE of the right. And I asked if bearing arms for the security of the State was a "lawful purpose."

United States v. Cruikshank
"..is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress."

The Court "brushes aside" the 2nd Amendment because the Amendment has zero import / impact on the right it guarantees from government's impact.

How could the Court say that the right is not granted by the Amendment and exists without any dependence on the Amendment and then examine the words of the Amendment UPON WHICH THE RIGHT IN NO MANNER DEPENDS to erect qualifications and conditions on the right or its protection?

Your position is absurd and fails at every level of logic and understanding of fundamental constitutional principles. In obstinately maintaining your position you willfully ignore the clear and unambiguous determinations of SCOTUS explaining again and again, those principles.

As I said before, ten years later the Court in Presser in citing and quoting Cruikshank discard the Cruikshank indictment's statement of "bearing arms for lawful purpose" and substitute the restrictive clause of the 2nd Amendment as the subject, the IT that is not granted by the Constitution, the IT that is not dependent "in any manner," on the Constitution for IT's existence and the IT that the 2nd Amendment commands "shall not be infringed".

" . . . in the case of United States v. Cruikshank, 92 U. S. 542, 92 U. S. 553, in which THE CHIEF JUSTICE, in delivering the judgment of the Court, said that the right of the people to keep and bear arms "is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. . . . "

Presser v. Illinois, 116 U.S. 252 (1886)

IT is, "bearing arms for lawful purpose", AKA, "the right of the people to keep and bear arms". Is that really so difficult to understand?

And I asked if bearing arms for the security of the State was a "lawful purpose."

Of course it is but doing so in an organized militia, as set out in Article I, § 8, cl 16 is not a "right" secured or protected by the 2nd Amendment.

The Authority to compel the citizens to muster, to organize and train them as militia for that purpose is only found in Article I, § 8, cl's. 15 & 16 (and to command the part of the state militia called into service of the nation, Art 2, § 2) . The 2nd Amendment has never been inspected to inform or held to inform on the militia powers of the states or federal government. There have been many disputes between the feds and the states over the execution of militia powers and not one case* has examined or used the 2nd Amendment to decide the dispute.

The militia purpose / collective right / state's right interpretations were created in 1942 and were already legally dead when established in the lower federal courts. Since 1903 the militia powers of the states were completely extinguished by federal preemption . . . If, as US v Tot invented, that the 2nd Amendment, "unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power", it is inexplicable that a state government did not claim this ironclad immunity to repel REAL federal encroachments on the militia powers of the states over the years.

You are arguing smoke and mirrors, theories that are now, if it's even possible, even deader as a viable legal truth than when they were first hatched 70 years ago.

* One case did mention the 2nd Amendment. Justice Story in his dissent in Houston v. Moore, 18 U.S. 1 (1820) stated that the 2nd Amendment has no important bearing on deciding militia authority issues.

[Glenn Vardy]

246. "It" wow!

I asked if bearing arms for the security of the State was a "lawful purpose."

Surf Fishing Guru answered:
"Of course it is...."

So, even IF that court said that the purpose of the second amendment was to secured a right to bear arms for "a lawful purpose," they could have meant collectively, for the "security of a free State," because THAT'S a lawful purpose.

But when they said that the Second Amendment declares that "it" shall not be infringed, all they meant was the right to keep and bear arms: "the right of the people to keep and bear arms," "IT" shall not be infringed.

[hansberrym]

247. What does "bear arms" mean according to SCOTUS?

You have insisted all along that "bear arms" in 2A means "serve in the militia", but the Cruickshank court said: The right there specified is that of "bearing arms for a lawful purpose."


The right of the people to keep and "serve in the militia for a lawful purpose", shall not be infringed? How ridiculous does it have to get before you admit your interpretation of "bear arms" in 2A does not fit the evidence or the text?


If bearing arms for the security of the State was the ONLY "lawful purpose" protected by 2A, then the statement would be redundant, and surely the courts (Cruickshankl and Preser) would have pointed that out, or at minimum not used/repeated that language.


Also why say: The right there specified is that of "bearing arms for a lawful purpose." if the right encompasses only one lawful purpose?

[Glenn Vardy]

309. "There specified"

...the Cruickshank court said: The right there specified is that of "bearing arms for a lawful purpose."

Where is THAT right specified? Post it.

[hansberrym]

314. Have at "it".

From Cruikshank:
The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States. my emphasis


What do you suppose the bold "it" refers to?



Edited to Fix brackets and add "from Cruikshank"

[Glenn Vardy]

315. POST IT!!!

Where is THAT right specified? Post it.

[hansberrym]

321. Reading is Fundamental, Really, you can't find the answer in what I posted?

Hint: read the first two sentences of my post #314(I have copied it again below for your convenience) to get the answer to your question(Where is THAT right specified?) Then keep reading to understand why you are wrong.



From Cruikshank:
The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States. my emphasis


What do you suppose the bold "it"s refer to?

[Glenn Vardy]

323. Words in an indictment

So, when the court said that "right there specified" was "bearing arms for a lawful purpose," they were just stating what was written in an indictment.

Are the words "bearing arms for a lawful purpose" in the Second Amendment? No! So when they say that the Second Amendment declares that "it" shall not be infringed, they simply mean the right to "bear arms." They brushed the Second Amendment aside and said that any supposed right of "bearing arms for a lawful purpose" would depend on what each state recognizes in it's constitution.

[hansberrym]

327. Keep reading, what is the next line?

From Cruikshank:
The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States. (my emphasis)


What do you suppose the bold "it"s refer to?


The Heller dissent denies SCOTUS is endorsing the meaning given in the indictment, but if the Cruikshank court did not agree with/endorse the meaning given in the indictment, why the heck would they repeat it and refer to it in THEIR own discussion of the Second Amedment?

[Glenn Vardy]

330. Endorsed?

"Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States."


What do you suppose the bold "it"s refer to?

I've addressed that several times, but you keep ignoring what I say.

Repeat: "Are the words "bearing arms for a lawful purpose" in the Second Amendment? No! So when they say that the Second Amendment declares that "it" shall not be infringed, they simply mean the right to "bear arms." They brushed the Second Amendment aside and said that any supposed right of "bearing arms for a lawful purpose" would depend on what each state recognizes in it's constitution."

The Heller dissent denies SCOTUS is endorsing the meaning given in the indictment

They're right to deny it. While BRUSHING ASIDE the Second Amendment the court used the word "it." That's all. They didn't endorse the meaning that was written in that indictment simply because there was no need to.

if the Cruikshank court did not agree with/endorse the meaning given in the indictment, why the heck would they repeat it

You see? Simply for repeating what was in the indictment, you think they must have endorsed it. They DIDN'T.

[hansberrym]

334. Yes, endorsed., and how do we know....

Because the Cruikshank court used "it" themselves in discussing the Second Amendemnt, "it" of course referring back to "bearing arms for a lawful purpose".

From Cruikshank:
The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States. (my emphasis)


Your(and the Heller dissent's) claim that "it" in "The second amendment declares that it shall not be infringed" does not refer back to "bearing arms for a lawful purpose" goes beyond mere obstinance. You can't even provide a rational answer for what else "it" might refer to if not "bearing arms for a lawful purpose".




You are simply "brushing aside" evidence that does not fit your theory, that's evidence barring, and it is what you have been doing all along.

They're right to deny it. While BRUSHING ASIDE the Second Amendment the court used the word "it." That's all. They didn't endorse the meaning that was written in that indictment simply because there was no need to.

"That's all"? What does "it" refer in "The second amendment declares that it shall not be infringed" from the above quote from Cruikshank?

That the Cruikshank court used the meaning that was written in the indictment, though they didn't need to, in THEIR discussion of the Second Amendment informs a ratonal person that the court did infact endorse that meaning.

[Glenn Vardy]

338. Avoiding content of my posts?

You can't even provide a rational answer for what else "it" might refer to if not "bearing arms for a lawful purpose".

Does the Second Amendment DECLARE that the right to "bear arms for a lawful purpose, shall not be infringed?"

Just as in the other thread, you're avoiding my questions.

Repeat: "Are the words "bearing arms for a lawful purpose" in the Second Amendment? No! So when they said that the Second Amendment DECLARES that "it" shall not be infringed, THEY SIMPLY MEANT THE RIGHT TO "BEAR ARMS." They brushed the Second Amendment aside and said that any supposed right of "bearing arms for a lawful purpose" would depend on what each state recognizes in it's constitution."

There's your "rational answer" for the THIRD time. If you disagree with WHAT I'VE SAID, SAY HOW I'M WRONG.

[hansberrym]

340. RIF Reading is Fundamental

There's your "rational answer" for the THIRD time. If you disagree with WHAT I'VE SAID, SAY HOW I'M WRONG


From Cruikshank:
The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States. (my emphasis)


The quote says this: The right there specified is that of 'bearing arms for a lawful purpose', but you choose to see only this: "The right there specified is that of bearing arms" -full stop. The uses of "it" that follow relate back to the full text, not your short version, that is how you are wrong.

[Glenn Vardy]

342. AGAIN, avoiding content of my posts

This was the content of my post:
"Does the Second Amendment DECLARE that the right to "bear arms for a lawful purpose, shall not be infringed?"

Just as in the other thread, you're avoiding my questions.

Repeat: "Are the words "bearing arms for a lawful purpose" in the Second Amendment? No! So when they said that the Second Amendment DECLARES that "it" shall not be infringed, THEY SIMPLY MEANT THE RIGHT TO "BEAR ARMS." They brushed the Second Amendment aside and said that any supposed right of "bearing arms for a lawful purpose" would depend on what each state recognizes in it's constitution."

There's your "rational answer" for the THIRD time. If you disagree with WHAT I'VE SAID, SAY HOW I'M WRONG."
--------------------------------------------------

You addressed NONE of what I said, avoided the two questions and just repeated your assertions.

Read the Second Amendment then tell me what "it" "declares" shall not be infringed. Is it a right for all "citzens" to "bear arms for a lawful purpose?"

How would you feel if SCotUS ruled that the Second Amendment doesn't protect a right to "keep" a gun and used the words of the indictment from Cruikshank as proof?

[hansberrym]

347. Oh, you missed it, ...Again!

you:
Repeat: "Are the words "bearing arms for a lawful purpose" in the Second Amendment? No! So when they said that the Second Amendment DECLARES that "it" shall not be infringed, THEY SIMPLY MEANT THE RIGHT TO "BEAR ARMS."

Me:
The quote says this: The right there specified is that of 'bearing arms for a lawful purpose', but you choose to see only this: "The right there specified is that of bearing arms" -full stop. The uses of "it" that follow relate back to the full text, not your short version, that is how you are wrong.


Are you really whining because I did not respond to your rhetorical question? I responded directly to your very lame argument. The court is discusisng "the right of bearing arms for a lawful purpose", and the below boldfacs "it" refers back to that text, not the RKBA text of the Second amendment. The RKBA text of 2A is not even present in the preceeding sentences, so how could the court be referring back to that text?



From Cruikshank:
The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States. (my emphasis)

[jmg257]

343. "It" refers to a right. Which right? The right to "(keep and) bear arms for a lawful purpose".

Your question about the exact text of the 2nd amendment is unimportant, as the court was not quoting the 2nd, but declaring its intent with regards to a right.


The counts under discussion:

"The first count was for...

The second avers an intent to hinder and prevent the exercise by the same persons of the 'right to keep and bear arms for a lawful purpose.' "

The next eight counts are a repetition of the first eight..."


From the opinion of the court:

"The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' {actually it was 'right to keep and bear arms for a lawful purpose'}. This is not a right granted by the Constitution. Neither is it {the right} in any manner dependent upon that instrument for its {the right's} existence. The second amendment declares that it {the right} shall not be infringed; but this, as has been seen, means no more than that it {the right} shall not be infringed by Congress"

What RIGHT is declared in the 2nd? According to this court, "The right is that of 'bearing arms for a lawful purpose.'" Or referring to the counts being refuted - the 'right to keep and bear arms for a lawful purpose.'

Clearly it was the opinion of this court that the 2nd amendment declares that the RIGHT of bearing (or keeping and bearing) arms for a lawful purpose shall not be infringed....by Congress.

[Glenn Vardy]

344. What part of "it" do you not understand?

"It" refers to a right. Which right? The right to "(keep and) bear arms for a lawful purpose".

"Keep" I'm sorry, but the "right there specified" in that indictment says nothing about "keeping" arms. The Court said that the Second Amendment declares that the words in that indictment shall not be infringed. What part of "it" do you not understand? :sarcasm:

[jmg257]

345. "The second (count) invers an intent to hinder...the 'right to keep and bear arms for a lawful...'"

The opinion no, the count the opinion was on, yes.

Could not find the actual indictment, so if not, then I might be wrong, and the court may indeed refer only to the 'right to bear arms for a lawful purpose', when they give the opinion on what right was specified in the count they find defective, and what the right is that the second secures.

[gejohnston]

63. OK

Federal laws clearly intended to keep the public safe from gun violence.

IMHO, the best thing they can do for that is to end the drug war. That is the source of most gun violence, knife violence, etc. In other words, since I do not do drugs, I do not financially support most of US gun violence. Any guns I have sold, have been consigned through FFLs. In other words, the typical bong owner contributes more to gun and gang violence than me and probably the vast majority of all gun owners combined.

That said, you just said that National Firearms Act of 1934 should be repealed, and if my state allows it, I should be able to buy a machine gun at Wal Mart or a gun show. The Uniform Pistol Act 1927 should be repealed so I can mail a pistol through USPS. That is before you get to the other three or four.

[Surf Fishing Guru]

58. Funny

Knowing the true purpose and meaning of the Second Amendment isn't the same as having an anti-liberty agenda.

I get it, government forcing conditioning and qualifications on the right is liberty . . . OK.

In fact, distorting the meaning of the Second Amendment takes away the liberty of the people of every State to control the private use of guns if they freely choose to do so.

That's funny given the fact that until 2010 the 2nd Amendment had no impact upon state action. Perhaps your beef then is with the 14th Amendment?

So, because you said the collective right interpretation is "illegitimate," it IS illegitimate? Just like Halbrook, you offer NOTHING to support your assertions.

Not worth the time. The collective right interpretation is dead. Nobody is arguing it anymore; it had no place in the recent SCOTUS cases as the dissents in Heller conceded the question of whether the 2nd protects an individual or collective right is no longer an issue . . .

[Glenn Vardy]

62. Get out of jail free

Heller

They alway play this card when they're losing the debate.

[gejohnston]

64. given the way the system works,

it is the only thing that ultimately matters at the moment. Unfortunately, the same is true with Citizens United vs FEC.

[Surf Fishing Guru]

71. ???? LOSING ????

My reference to Heller was to cite the DISSENT, that the "collective right" theory has been rendered defunct.

Stevens said (which the minority joined):

• "The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals."

Bryer said (which the minority joined):

• "In interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:
  
  (1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (Stevens, J., dissenting). "

So you need to catch up and shed the old and discarded flat-earth "collective right" theory. The argument now is what level of scrutiny to apply to laws challenged as violative of the fundamental, individual right secured by the 2nd Amendment. The dissents would have us use an interest-balancing approach which it seems would affirm nearly any gun control law.

[Glenn Vardy]

80. Yes, losing.

Losing?

Yes, you're losing our debate. I'm exposing the errors in the evidence that the court in Heller relied on in it's ruling. There's a list as long as my leg of court cases, including two SCotUS cases, which support my view. Are we going to debate the historical evidence for ourselves, or is claiming that your "Heller" card trumps Miller and Lewis your only argument?

[Surf Fishing Guru]

139. No, WINNING!

No SCOTUS decision supports the collective / state's right interpretation of the 2nd.

A purposeful misreading of Miller that demands one to ignore previous SCOTUS decisions was certainly the basis of those bankrupt theories in the lower federal courts circa 1942 but one can't support those theories in the totality of SCOTUS opinion (including Griswold's emanations).

Saying that Lewis supports such foolishness is especially amusing.

[Surf Fishing Guru]

60. The hits just keep coming!

The Second Amendment is a militia amendment.

No, not at all. There is no militia aspect to the 2nd Amendment to be found.

None of the legitimate federal authority to direct the organization, control, discipline and state powers to train the militia was established, modified or enhanced by the 2nd Amendment.

The only direction and authority for the organization, control, discipline and training of the militia is found in Article I § 8, clause 15 & 16 and Article II, § 2, clause 1.

The 2nd Amendment has never been inspected to inform or held to instruct on any aspect of militia powers, federal or state. The 2nd Amendment has, as SCOTUS has said, "no other effect than to restrict the powers of the national government" (well, until McDonald)

There has never been a "collective" entity granted standing to argue an injury to their supposed 2nd Amendment rights and no state has ever claimed any immunity under the 2nd to repel federal interference with state militia power.

Do you have any evidence, philosophical, historical or legal, that shows that, "the Second Amendment is a militia amendment"?

[Glenn Vardy]

67. Historical evidence

Do you have any evidence,... historical,... that shows that, "the Second Amendment is a militia amendment"?

In a letter, Jefferson described the amendment that was "ratified" as "the substitution of militia for a standing army."

All the distorted quotes that you guys use are lifted from debates about the State militia forces. In fed 46, Madison is talking about the people being officered by men chosen from amongst themselves. See Article 1, Section 8 where the appointment of the officers is reserved to the States. When Mason was talking about the militia being disarmed, he wasn't talking about individuals having their muskets confiscated. He was talking about the militia being destroyed by congress FAILING to provide for arming AND DISCIPLINING the militia as set out in Article 1, Section 8. When Henry said that every man who was "able may have a gun," he wasn't giving the thumbs-up for all individuals to own guns. He was talking about men ELIGIBLE TO SERVE in the militia having guns. It's ALL militia, militia, militia. I've even shown here that the State provisions that refer to the defence of "themselves" as well as the State are militia provisions.

[gejohnston]

68. In other words

"the substitution of militia for a standing army."

The correct thing to do is dismantle the empire, have a large enough active duty navy and air force to defend our borders and occasional peacekeeping gig, and have an army more like Switzerland? I'll sign on to that. The money saved plus rolling the Reagan tax cuts, we can do all kinds of good stuff. Just think of the schools we can repair, universal health care, roads and bridges fixed, free college/trade school. That will go further to deal with violence regardless of weapon than some feel good law.

[iverglas]

79. hush now

That's some un-amurican talk you got yourself there. ;)

The co-vivant remarks daily on the elephant in the chamber, when observing your houses of Congress and their budget carryings-on. End the wars of aggression and occupations of foreign countries ... and, well, the mind boggles at the doors that would open, doesn't it?

Maybe youse guys should write your Congress people or something!

(Don't think I don't share your pain -- we too now have massive embedded corporate tax cuts and are intending to take on massive military expenditures and mega-prison building, while cutting public service employment and public services. But, well, we have a right-wing government in power ...)

[gejohnston]

84. Un American to many in the kind of middle, yeah.

Believe it or not, that is something many on the left, like Bernie Sanders, and the right, like Ron Paul, agree on. It is the center that loves the MIC too much in the US.

[iverglas]

87. oh, I know there is a left

It simply has no voice, not even its own, these days.

The protests about the war on Vietnam didn't end just because it dragged on. My own view of that, of course, is that there were no lessons learned at all; it was the bags containing USAmerican bodies on TV that ended it, not any awareness achieved of the atrocity of the entire undertaking, i.e. concern about any other bodies. So history was left to repeat itself. The deciding difference between the two cases may be that there is no draft this time around, so no domestic focus ... or just that US society as a whole is way farther over on the right wing.

If the insane, entirely ungraspable financial cost of the whole thing alone could be used as the rallying point, well, history might still be left to repeat itself at the next opportunity to invade and occupy some distant land, but this Iraq thing might get ended, anyhow.

As for Ron Paul ... the enemy of my enemy is very often not my friend. He doesn't actually "agree" with the left, they just happen to coincide on a particular preferred course of action at a particular point in time. He isn't with you on the peacekeeping part at all. My choice would be to just ignore him. ;)

[gejohnston]

91. he agrees with dismantling the empire

but no, he is not big on the UN.

[Surf Fishing Guru]

72. Stop, take a breath Dude, the wet paper bag is winning . . .

And that powers have been conferred regarding the organization, control, training and deployment of organized militia says what about the private citizen and his personal arms? That the powers granted are specifically directed to the militia as an organized force excludes those not comprising that body. Today, since there is no militia law in force and there is no entity constitutionally authorized to call up the citizenry and organize, train and deploy them as Art I, Sec 8 cl 16 militia, there is, as you have mentioned before, zero legitimate authority for the federal government to have any interest in the personal arms of the private citizen.

Thanks for playing . . .

[Glenn Vardy]

81. Oblivious

And that... says what about the private citizen and his personal arms?

You don't get it, do you? The quotes say NOTHING about the private citizen's personal arms. But as I said, these are the quotes that YOU GUYS use AS THOUGH they're discussing individuals owning guns for personal use.
Aren't you going to comment on Jefferson describing the Second Amendment as "the substitution of MILITIA for a standing army?"

[Kennah]

69. Then came this little thing known as the 14th Amendment

[Glenn Vardy]

50. More craftiness

"Matlack, an Associator, when once asked by a Quaker why he wore a sword, replied: "That is to defend my property and my liberty." It was inevitable that these framers would seek guarantees of the people's liberty to have arms....."

------------
NOTICE HOW HALBROOK CONNECTS MATLOCK OWNING A SWORD AND "THE PEOPLE" HAVING "ARMS." THIS IS TO LINK IT TO THE ARMS BEARING PROVISION.
------------

"....As adopted by Pennsylvania, the Declaration of Rights included the following provision:
That the people have a right to bear arms for the defense of themselves, and the state; and as standing armies in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by the civil power.

This provision is significant in several respects. Pennsylvania was the first state to adopt the explicit language that "the people have a right to bear arms," and thus its use of that term would have been known to those who adopted similar language in the bills of rights in other states and, later, the United States....."

-----------
TRUE, BUT WHAT EVIDENCE DOES HALBROOK PRESENT TO SHOW THAT THOSE FRAMERS UNDERSTOOD "THE PEOPLE" TO MEAN EACH PERSON? ANSWER: MATLOCK WORE A SWORD.
----------

".....The Declaration of Rights clearly extends to all of the people the right to carry arms for self-defense and for defense of the state...."

--------------
THAT'S HALBROOKS OWN ASSERTION FOR WHICH HE'S OFFERED NO PROOF AT ALL, EXCEPT THAT MATLOCK WORE A SWORD.
-------------

"....The term "bear arms," although included in the same sentence in which standing armies are rejected, has no exclusive militia nexus..."

------------
AGAIN, THAT'S HALBROOKS OWN UNSUBSTANTIATED OPINION. HE BRUSHED ASIDE THE EVIDENCE OF A MILITARY CONTEXT.
-----------

"....While the framers intended in the declaration of a right to bear arms, to preserve the more controversial right to defend the state against the established (Crown) government, they did not neglect to include the undisputed right to bear arms for self-defense..."

-----------
UNDISPUTED? YET AGAIN, THAT'S HALBROOKS OWN UNSUBSTANTIATED OPINION.
----------

"...No dispute with the declaration of the right to bear arms to defend self and state appears to have been raised in the convention or later in the press..."

----------
TO DEFEND "SELF" IS HALBROOKS OWN WORD. MAYBE THERE WAS NO DISCUSSION OF "SELF" DEFENCE IN THE CONVENTION BECAUSE THE PROVISION ISN'T ABOUT "SELF" DEFENCE."
------------

"...While some parts of the declaration were highly controversial, a search of newspapers from the time the declaration was first published on August 20 reveals not a single objection..."

------------
SO, BECAUSE THERE WASN'T AN OBJECTION, THE PROVISION MUST PROTECT A PERSONAL RIGHT? THEY WOULDN'T OBJECT TO A MILITIA PROVISION FOR THE COMMON DEFENCE EITHER.
-----------

"....Freedom of religion certainly did not appear to be considered as fundamental as the right to bear arms...."

------------
HE HASN'T YET SHOWN THE RIGHT OF "THE PEOPLE" TO BE "FUNDAMENTAL."
------------

"....For example, when Benjamin Franklin revised certain wording of the Declaration of Rights, he suggested no change in the right to bear arms clause;..."

----------
SO WHAT?
---------

"....yet he unsuccessfully opposed the profession of faith required for Assemblymen. Newspaper attacks on the religious guarantees and other matters were extreme and persistent, but the right to bear arms was not once questioned..."

---------
AGAIN, IT WOULDN'T BE QUESTIONED IF IT WERE A MILITIA PROVISION DEALING WITH THE COMMON/CIVIL DEFENCE.
----------

============================
============================

So many misleading techniques in a short paragraph.

[Glassunion]

83. How does "People" apply to the person?

Please do explain, how "people" applies to the individual? Basically, in your eyes, what is the definition of "people" in the following and how would it pertain to you the individual?

I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

II. 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.

IV. The right of the people 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.

IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

[Glenn Vardy]

86. How does your post apply to my post?

"Vermont also copied Pennsylvania in declaring "that the inhabitants of this State, shall have liberty to hunt and fowl, in seasonable times, on the lands they hold, and on other lands (not enclosed)." ....the above language clarifies the fundamental character of the right.... to Vermont's founding fathers. To "bear arms" meant to possess guns... for hunting." - Stephen P. Halbrook.
--------------------

The expression "bear arms" isn't in the provision dealing with the liberty to "hunt and fowl," is it? Halbrook's OWN assertions aren't proven by the material that HE presents.

About your comments.
"The people" is ALWAYS used to identify a collective body. All rights, including collective rights, differ IN THERE APPLICATION. In the Second Amendment, "the people" is used in the same way as it would in "The people v. Joe Criminal." Individuals or groups of individuals other than the WHOLE people can't put Joe Criminal on trial. There's a system in place. The same goes for the matter of State security. Individuals will be called to serve in a well regulated militia on behalf of "the people" if eligible to serve. Now, although the Fourth Amendment also identifies a collective body, it's application will differ from the Second Amendment. It isn't as black and white as you'd like.

[Glassunion]

88. It would seem strangely redundant using your theory and applying it to the state's constitution.

"That the people have a right to bear arms for the defense of themselves and the State"

That the collective has a right to bear arms for the defense of the collective and the same collective?

Again, how would this apply to the person?

The people compromise the whole consisting of persons. I would read it that everyone(the people) in the whole has a right to bear arms for the defense of the singular(person) and the plural(state).

Can we agree to disagree?

[Glenn Vardy]

89. READ IT

XV. "That the people have a right to bear arms for the defence of the themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."

IX. "That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of the protection, and yield his personal service, when necessary, or an equivalent thereto; but no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives; nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law, but such as they have, in like manner, assented to, for their common good."
-----------------

These two provisions ARE related. Do you see how easy it was for these framers to secure a right for "every member" of society "to BE protected?" Why didn't they use such language in the arms bearing provision IF they were protecting a personal right to carry guns for self defence? What do you think that the "expense of the protection" and "personal service" mean. Does it mean that all individuals were "bound" to buy a gun for the "service" of self defence? No, it's taxation to PAY for the State militia and service IN the State militia. You guys are trying to bang a square peg into a triangular hole.

[Glassunion]

90. I have read it.

I don't see it the way you do. I read it that individuals have the right to bear arms.

I think we can agree to disagree.

[Glenn Vardy]

92. More distortion of the historical evidence

While the right to bear arms went unquestioned, clauses in the Pennsylvania Constitution concerning the militia and hunting were criticized. One of the initial sections of the constitution provided: "The freemen of this commonwealth and their sons shall be trained and armed for its defense, under such regulations, restrictions and exceptions as the general assembly shall by law direct ...." The only attack on this provision was actually no more than a satire which pictured the constitution as confusing and disorganized. Entitled "A Dialogue," its comment on the militia clause was more sarcasm than substance:

"In section the fifth--the freemen shall be trained and armed for their defense, and the militia shall elect their officers, & c. Oh, how I am transported at the velocity of the mental operations of these geniuses! They ought not to be compared to any thing but leaden bullets flying from the muzzles of rifles, hot, heavy, rapid, and yet twisting to their marks." - Stephen P. Halbrook.
------------------------------------------


1. Again, for no reason, Halbrook presumes that the right of the people to "bear arms" MUST be personal in nature because he says it "went unquestioned."

2. Halbrook says that the arms bearing provision went unquestioned, but clauses concerning the "militia" were criticized. This is Halbrook's OWN assertion that the arms bearing provision dealing with the defence of the State does NOT concern the militia.

3. Halbrook only quoted half of section 5 from the Constitution.

"The freemen of this commonwealth and their sons shall be trained and armed for its defense under such regulations, restrictions, and exceptions as the general assembly shall by law direct, preserving always to the people the right of choosing their colonel and all commissioned officers under that rank, in such manner and as often as by the said laws shall be directed."

Is it any wonder why Halbrook asserted from the start that the arms bearing provision dealing with State security doesn't concern the militia? His goal is to put distance between the arms bearing provision and "regulations" and "restrictions." It's also clear why he left out half of the section. It refers to "the people" chosing their own officers as the law directs. This wasn't a matter for individuals or groups of individuals other than the body of "the people."

[Glenn Vardy]

93. "Carry any gun"

Finally, a hunting regulation punished any person who "shall presume to carry any gun, or hunt" on the land of others without permission. - Stephen P. Halbrook.
----------------------------------

Why didn't they use the phrase "bear arms" in this non-military context?

[We_Have_A_Problem]

176. Who the fuck knows?

Perhaps because the person writing it did not consider that someone like yourself would get so huffy over it? Perhaps because it wasn't a big deal? Perhaps because he wanted to use a different phrase?

[Glenn Vardy]

94. More

The delegates in the Pennsylvania convention of 1789-90 were acutely aware of the progress of the proposed federal constitutional amendments, which Pennsylvania would not ratify until March 10, 1790, and which became valid only in late 1791. The delegates considered a provision similar to what became the second amendment as originally drafted by James Madison: "The right of the people to keep and bear arms shall not be infringed ... but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."<132> In the Pennsylvania proceedings, (p.277)the delegates exhibited their own understanding of the second amendment's language.

In its first report, the committee charged with recommending amendments proposed the following provisions:

XIX. That the right of the citizens to bear arms in defense of themselves and the state, and to assemble peaceably together, and apply in a decent manner, to those invested with the powers of government, for redress of grievances or other proper purposes, shall not be questioned.

XX. That those who conscientiously scruple to bear arms shall not be compelled to do so, but shall pay an equivalent for personal service.<133>

This language clarifies the wide protection guaranteed by the clauses in bills of rights at that time, as well as the severability of the clauses. Being bound by the conjunction "and" in no manner suggested that arms bearing, assembly, and petition were constitutionally protected only when provided simultaneously. Under the proposal, these activities would be protected when carried out either separately or together.

This proposal was widely published throughout the country, including in states which had not yet ratified the federal Bill of Rights.<134> There is no evidence that anyone thought the militia clause of what became the second amendment limited the right to bear arms clause any more than Pennsylvania's assembly clause limited its arms clause. The general perception was that both the federal and Pennsylvania guarantees protected the bearing of arms by members of the general public for self and common defense. - Stephen P. Halbrook.
-----------------------------------------------

1. Why does Halbrook leave out the part referring a well regulated militia from the proposal similar to Madisons original draft? There will be a reason for it, and I suspect it'll be something to do with the punctuation.

2. Halbrook is asserting that the language of the provision that the first commitee recomended ("citizens") was understood by the delegates to be the same as the Second Amendment ("the people"). He has NO reason to make that assertion.

3. Halbrook makes a strawman argument when he says that there's no evidence that anyone thought the militia clause (which he omitted) limitted the right (of THE PEOPLE) to bear arms clause. The bear arms clause BY ITSELF uses no terms that refer to individuals.

4. The whole of the final sentence is Halbrooks OWN unsubstantiated opinion of what the "general perception" was. "Self" defence is HIS word, not theirs.

5. Halbrook is keen to say what HE claims the language "clarifies." But he doesn't clarify that the word "keep" isn't in the proposal in the first report that refers to "citizens". That proposal would NOT have protected the personal ownership of guns. He also doesn't clarify that the objector clause proves that "bear arms" does NOT mean "carry" "guns" either.

[hansberrym]

99. Really?

XX. That those who conscientiously scruple to bear arms shall not be compelled to do so, but shall pay an equivalent for personal service.<133>


Is "bear arms" a collective activity in that cite, or is it the action of an individual? It does not say those who scruple to bear arms shall not be compelled to take part in that, it says "shall not be compelled to do so". The thing done is done by the individual.

Bonus question: Does "personal service" refer to collective action or the action of an individual?


Even the dissent in Heller admitted the right was individual, what was contended was the scope of the right. You are clinging to Silveira and wailing at Halbrook, but even the dissenting justices rejected your interpretation.

[Glenn Vardy]

100. Wrong question

XX. That those who conscientiously scruple to bear arms shall not be compelled to do so, but shall pay an equivalent for personal service.

Is "bear arms" a collective activity in that cite, or is it the action of an individual? It does not say those who scruple to bear arms shall not be compelled to take part in that, it says "shall not be compelled to do so". The thing done is done by the individual.

First, let's put it into perspective. The arms bearing proposal that we're discussing here wasn't the version that Pennsylvania sent to Congress for consideration. I think the one that they did send for consideration is the one that was very similar to Madison's original draft.

The question that I ask myself isn't whether or not "bear arms" in that objector clause is a "collective activity." I ask myself WHAT "to do so" means, and the answer is "serve in the militia." Your question is moot.

[hansberrym]

103. OIC

The question that I ask myself isn't whether or not "bear arms" in that objector clause is a "collective activity." I ask myself WHAT "to do so" means, and the answer is "serve in the militia." Your question is moot.

So you are not trying to ascertain the meaning of "bear arms", you have already decided on the meaning and now want to force fit that meaning into the Second Amendemnt.

What does it mean to have a right to keep and serve in the militia? Your meaning doesn't come close to fitting the text of the second amendment.
If you want to criticize misdirection, how about the Heller dissent throwing out 3 figurative expressions as the meaning of "bear arms" (including the one you rely on) and then running away from those when called out by the Heller majority for proposing interpretations that clearly do not fit into the text of 2A.

What the dissent in Heller went on to propose, in place of the 3 figurative expressions they initially tossed out as smoke screens, was "carry arms in service of a state organized militia", and while, if we completely ignore history, that definition plausibly fits with the text of 2A, it doesn't make sense in regard to state RKBA provisions, nor does it fit contemporaneous usage of "bear arms" in discussions of the right to bear arms, nor how the earliest state court cases interpreted those words.

I ask myself does the decided upon interpretation of "bear arms" fit the usage of those words in various discussions of the right to bear arms. If not then it needs to be adjusted to fit. You on the other hand, reach for a bigger hammer and ignore the mess you make of it.


Federal Gazette ,1789 (Tenche Coxe)
"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.”

Note that the though the draft which T.Coxe was commenting on still contained the CO provision, he did not read "bear arms" as "serving in the militia".

See also my post to Iverglas.

[Glenn Vardy]

106. What does "to do so" mean? To do what?

What does "to do so" mean? To do what?

Again, you're stalling.

[hansberrym]

116. What's that, you still can't find it? OK I'll cut and paste it just for you

Below is from my post to Iverglas, which I directed you to, but which you seem unable to find. My answer is right there in the first sentence: bear arms means to carry weapons in case of confrontation.



==========================
In Heller the majority interpreted the phrase "bear arms" as meaning to carry weapons as in preparation for confrontation. While the dissent read it more narrowly as in carrying weapons in connection with service in a state organized militia.

Heller Majority:
Quakers opposed the use of arms not just
for militia service, but for any violent purpose whatsoever—
so much so that Quaker frontiersmen were forbidden
to use arms to defend their families, even though “in
such circumstances the temptation to seize a hunting rifle
or knife in self-defense . . . must sometimes have been
almost overwhelming.” P. Brock, Pacifism in the United
States 359 (1968); see M. Hirst, The Quakers in Peace and
War 336–339 (1923); 3 T. Clarkson, Portraiture of Quakerism
103–104 (3d ed. 1807). The Pennsylvania Militia Act
of 1757 exempted from service those “scrupling the use of
arms”—a phrase that no one contends had an idiomatic
meaning. See 5 Stat. at Large of Pa. 613 (J. Mitchell & H.
Flanders eds. 1898) (emphasis added). Thus, the most
natural interpretation of Madison’s deleted text is that
those opposed to carrying weapons for potential violent
confrontation would not be “compelled to render military
service,” in which such carrying would be required...


Heller Dissent:
Instead, the Court limits
the Amendment’s protection to the right “to possess and
carry weapons in case of confrontation.” Ante, at 19. No
party or amicus urged this interpretation; the Court appears
to have fashioned it out of whole cloth. But although
this novel limitation lacks support in the text of
the Amendment, the Amendment’s text does justify a
different limitation: the “right to keep and bear arms”
protects only a right to possess and use firearms in connection
with service in a state-organized militia.
The term “bear arms” is a familiar idiom; when used
unadorned by any additional words, its meaning is “to
serve as a soldier, do military service, fight.” 1 Oxford
English Dictionary 634 (2d ed. 1989).


However Stevens neglects to inform his readers how the right to Keep and "do military service" could make any sense, or why the various states would have BOR provisions ostensibly for the protection of the people against tyranny in governemnt which are limited only to serving in the militia under the control of the state.



On the second point, I am heartened that you also do not think the duty and the right are exactly the same thing
Note that a person who only recognizes a political RKBA might well argue that the duty and the right are coextensive.
But at the founding, as now, people spoke of the right to bear arms as encompassing both a political right and a right of self defense.


Address of PA Minority: (From a list of amendments proposed by the minority during ratification of Constitution)
That the people have a right to bear arms for the defense 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.


From Heller:
The Works of the Honourable James Wilson 84 (1804) (with reference to
state constitutional right: “This is one of our many renewals of the
Saxon regulations. ‘They were bound,’ says Mr. Selden, ‘to keep arms
for the preservation of the kingdom, and of their own person’ ”);


From debates in Congress on the first Militia act, and proposal for CO provision:
Representative Sherman questioned if Congress could give an exemption to pacifists since “the state governments had (not) given out of their hands the command of the militia, or the right of declaring who should bear arms?”91 He went on to argue that it was the
privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack made upon his liberty or property, by whomsoever made. The particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded. A militia existed in the United States, before the formation of the present constitution: and all that the people have granted to the general government, is the power of organizing such militia. The reason of this grant was evident; it was in order to collect the whole force of the union to a point, the better to repel foreign invasion, and the more successfully to defend themselves.

Sherman was no novice in discussing rights, he was chosen by Madison to sit on the committee that worked out the kinks between the House and Senate versions of the BOR. Yet above he mixes personal right of defending self and property with the political right, he even mixes in the right of states to defend their rights by force of arms.


Another funny thing is how the Heller dissent avoided discussion the earliest state court cases regarding the RKBA.

=========================

[Glenn Vardy]

118. Got no answers? Copy and paste Heller to every question

Isn't that right?

[Glenn Vardy]

108. The Coxe side-step

Federal Gazette ,1789 (Tenche Coxe)
"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.”

Note that the though the draft which T.Coxe was commenting on still contained the CO provision, he did not read "bear arms" as "serving in the militia".

Then, WHAT WAS IT that certain persons wouldn't have been compelled to do? "Carry" "guns" for "self" defence unconnected to militia service?

Wherever you see "bear arms, try inserting "carry guns in case of conflict with another person." This is roughly the definition that proponents of the individual rights theory rely on. Look at what Thomas Jefferson said in the Declaration of Independence. He wasn't saying that the king had captured those ships and made the crew carry guns in case of conflict with another person. He made them "serve in the military" and "fight" against their country.

Original draft:
"..compelled to render military service.."

First reworded version:
"..compelled to bear arms."

They're the SAME thing.

Now look at the definition from the OED which dates back to the 1300's
Bear Arms: "To serve as a soldier, do military service, fight.."

In the Coxe quote, there's a military context from the start. When Coxe says "the people," he's referring to, and addressing, "the people" of his State. When he says "private arms," he's referring to the arms of the MILITIA, the natural defence of a free State, as opposed to a standing army.

[hansberrym]

114. The Coxe Side step is when an anti reads Coxe's description of the RKBA

Now look at the definition from the OED which dates back to the 1300's
Bear Arms: "To serve as a soldier, do military service, fight.."

In the Coxe quote, there's a military context from the start. When Coxe says "the people," he's referring to, and addressing, "the people" of his State. When he says "private arms," he's referring to the arms of the MILITIA, the natural defence of a free State, as opposed to a standing army.



And side-steps, or pretends not to notice:

-that Coxe does not treat "bear arms" as a figurative expression. Note how Coxe adds "their private" between "bear" and "arms", he certainly is not reading "bear arms" as an idiom. Coxe assumes an independent meaning to "bear" rather than an idiomatic meaning to "bear arms"

-that "private" signifies individual ownership(as opposed to arms issued by the government and liable to be recalled)

-that the use of the word "private" also tells us Coxe is referring to individuals, not the collective.

-that Coxe uses "the people" and "their private arms" he is saying the arms belong to the people, not the militia.

[Glenn Vardy]

122. Questions

I posted text from the original draft, the next reworded version and an early definition of the phrase "bear arms" from the OED. You brushed it aside just as you've brushed aside the questions about the article we were discussing. Here it is again:

Original draft:
"..compelled to render military service.."

Next reworded version:
"..compelled to bear arms."

Early OED definition:
Bear arms: "To serve as a soldier, do military service, fight.."

Doesn't it all fit together like the pieces of a jigsaw?

Look at the debate on the wording of this amendment in the First Congress. It was suggested that it should say that no person would be "compelled to bear arms, upon paying an equivalent, to be established by law." Would that have meant that "private" individuals could pay to be excused from "carrying" their "private arms?"

Which gives us a better understanding of the meaning and purpose of the Second Amendment, this evidence from the actual framing process which all fits together like a jigsaw, or the word "private" in some Gazette?

[hansberrym]

128. Close but no cigar.

Would that have meant that "private" individuals could pay to be excused from "carrying" their "private arms?"

I am puzzled by your question, Was there some odd sect that was scrupulous of moving their own arms from place to place???

As before, "bear arms" meant to carry weapons in case of confrontation. A Quaker very well might own a hunting rifle, but he would not carry it in preparation for confrontation. That is what quakers would not do, not with their own arms, not with government issued arms, not for themselves, and not for the state. The state was not asking people to merely transport arms, or simply move arms from place to place, but to carry them as one would in preparation for confrontation.

But now that you have apparently proved to yourself what "bear arms" means in the various CO provisions, why don't you try to fit that puzzle piece into the right to keep and bear arms? What sense does it make to say the right of the people to keep and render military service?

And does each person really have a right to serve in the state organized militia? You need a bigger hammer.

[Glenn Vardy]

130. You see?

Glenn asked:
"Look at the debate on the wording of this amendment in the First Congress. It was suggested that it should say that no person would be "compelled to bear arms, upon paying an equivalent, to be established by law." Would that have meant that "private" individuals could pay to be excused from "carrying" their "private arms?""

hansberrym replied:
"I am puzzled by your question, Was there some odd sect that was scrupulous of moving their own arms from place to place???"
---------------------------------

You're sunk.

The correct answer is: "No, because it makes no sense if you think they're talking about "carrying" their "private arms.""

[hansberrym]

131. You read?

If grandma wore army boots...

The correct answer is: "No, because it makes no sense if you think they're talking about "carrying" their "private arms.""


My position is that "bear arms" means to carry arms in case of confrontration. So your "correct answer" makes no sense for quite another reason.

Do you see the difference between "carrying arms", "carrying arms in case of confrontation", and "carrying arms in service of a state organized militia"?

You have behaved as though you are incapable of understanding the difference, maybe it reflects a lack of intellect, or maybe a lack of intellectual honesty, only you know the answer.

[Glenn Vardy]

109. Other wrong question.

XX. That those who conscientiously scruple to bear arms shall not be compelled to do so, but shall pay an equivalent for personal service.

Does "personal service" refer to collective action or the action of an individual?

Again, you're asking the wrong question. Is the "personal service" referring to the sevice of "self" defence? You can't seriously say that, because individuals wouldn't be compelled to bear arms in person because of THIS provision, that the nature of the right secured in the ARMS BEARING provision must also be personal. The words "pay an equivolent" tell us that the phrase "bear arms" doesn't mean "carry" "guns" for self defence.

[hansberrym]

112. What's that, you can't find my post to Iverglas? OK, I'll cut and paste it for you.

Below is from my post to Iverglas, which I directed you to, but which you seem unable to find. My answer is right there in the first sentence: bear arms means to carry weapons in case of confrontation.



==========================
In Heller the majority interpreted the phrase "bear arms" as meaning to carry weapons as in preparation for confrontation. While the dissent read it more narrowly as in carrying weapons in connection with service in a state organized militia.

Heller Majority:
Quakers opposed the use of arms not just
for militia service, but for any violent purpose whatsoever—
so much so that Quaker frontiersmen were forbidden
to use arms to defend their families, even though “in
such circumstances the temptation to seize a hunting rifle
or knife in self-defense . . . must sometimes have been
almost overwhelming.” P. Brock, Pacifism in the United
States 359 (1968); see M. Hirst, The Quakers in Peace and
War 336–339 (1923); 3 T. Clarkson, Portraiture of Quakerism
103–104 (3d ed. 1807). The Pennsylvania Militia Act
of 1757 exempted from service those “scrupling the use of
arms”—a phrase that no one contends had an idiomatic
meaning. See 5 Stat. at Large of Pa. 613 (J. Mitchell & H.
Flanders eds. 1898) (emphasis added). Thus, the most
natural interpretation of Madison’s deleted text is that
those opposed to carrying weapons for potential violent
confrontation would not be “compelled to render military
service,” in which such carrying would be required...


Heller Dissent:
Instead, the Court limits
the Amendment’s protection to the right “to possess and
carry weapons in case of confrontation.” Ante, at 19. No
party or amicus urged this interpretation; the Court appears
to have fashioned it out of whole cloth. But although
this novel limitation lacks support in the text of
the Amendment, the Amendment’s text does justify a
different limitation: the “right to keep and bear arms”
protects only a right to possess and use firearms in connection
with service in a state-organized militia.
The term “bear arms” is a familiar idiom; when used
unadorned by any additional words, its meaning is “to
serve as a soldier, do military service, fight.” 1 Oxford
English Dictionary 634 (2d ed. 1989).


However Stevens neglects to inform his readers how the right to Keep and "do military service" could make any sense, or why the various states would have BOR provisions ostensibly for the protection of the people against tyranny in governemnt which are limited only to serving in the militia under the control of the state.



On the second point, I am heartened that you also do not think the duty and the right are exactly the same thing
Note that a person who only recognizes a political RKBA might well argue that the duty and the right are coextensive.
But at the founding, as now, people spoke of the right to bear arms as encompassing both a political right and a right of self defense.


Address of PA Minority: (From a list of amendments proposed by the minority during ratification of Constitution)
That the people have a right to bear arms for the defense 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.


From Heller:
The Works of the Honourable James Wilson 84 (1804) (with reference to
state constitutional right: “This is one of our many renewals of the
Saxon regulations. ‘They were bound,’ says Mr. Selden, ‘to keep arms
for the preservation of the kingdom, and of their own person’ ”);


From debates in Congress on the first Militia act, and proposal for CO provision:
Representative Sherman questioned if Congress could give an exemption to pacifists since “the state governments had (not) given out of their hands the command of the militia, or the right of declaring who should bear arms?”91 He went on to argue that it was the
privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack made upon his liberty or property, by whomsoever made. The particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded. A militia existed in the United States, before the formation of the present constitution: and all that the people have granted to the general government, is the power of organizing such militia. The reason of this grant was evident; it was in order to collect the whole force of the union to a point, the better to repel foreign invasion, and the more successfully to defend themselves.

Sherman was no novice in discussing rights, he was chosen by Madison to sit on the committee that worked out the kinks between the House and Senate versions of the BOR. Yet above he mixes personal right of defending self and property with the political right, he even mixes in the right of states to defend their rights by force of arms.


Another funny thing is how the Heller dissent avoided discussion the earliest state court cases regarding the RKBA.

=========================

[Glenn Vardy]

117. You're dancing all over the place

My answer is right there in the first sentence.....

==========================
In Heller the majority interpreted the phrase "bear arms" as.......

No, it is NOT.

Repost:
"That those who conscientiously scruple to bear arms shall not be compelled to do so, but shall pay an equivalent for personal service."

Is the "personal service" referring to the sevice of "self" defence? The words "pay an equivolent" tell us that the phrase "bear arms" doesn't mean "carry" "guns" for self defence.

[hansberrym]

123. If you say so.

Is the "personal service" referring to the sevice of "self" defence?

No, why would you ask such a question? I just told you what "bear arms" means, and I didn't say it meant only carrying weapons in case of confrontation for self defense. You keep playing the False Dichotomy card, but it isn't helping your case. A person can bear arms in self defense or in defense of the state.



The words "pay an equivolent" tell us that the phrase "bear arms" doesn't mean "carry" "guns" for self defence.

And so you are saying if a person can be reguired to "bear arms" in service to the state, then the words "bear arms" must only mean carry weapons in service to the state? That would be one of those non-sequitor thingys.

[Glenn Vardy]

95. Blatent assertions

By Stephen P. Halbrook
"Further committee action placed the assembly clause in the nineteenth section, and the arms clause in the twentieth. Minutes of the committee of the whole reflect the following:

The twentieth section of the said bill of rights being under consideration, it was moved by Mr. Pickering, seconded (p.278)by Mr. McKean, to amend the same so as to read as follows, viz.

That the right of the citizens to bear arms in defense of themselves and the state shall not be questioned; but those who conscientiously scruple to bear arms shall not be compellable to do so, but shall pay an equivalent for personal service. Which was carried in the affirmative, and the said section, as amended, adopted.<135>

Colonel Timothy Pickering and Chief Justice Thomas McKean,<136> both of whom had served in Pennsylvania's federal convention, followed Madison's example by combining a right to bear arms guarantee with a conscientious objector exception.<137> This demonstrates......"

(We all know EXACTLY what it demonstrates. But let's see what Halbrook blatently asserts that it demonstrates.)

".....that inclusion of a prohibition on compelling the religiously scrupulous from bearing arms in no way detracted from the individual character of the right to bear arms for defense of self and state."

(Sigh!)

[jmg257]

121. What would you make of this use of the phrase "...a right to bear arms..."?

"Seventh. 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."

The Address and Reasons of Dissent
Of the Minority of the Convention
Of the State of Pennsylvania, to their Constituents.


Dissenters, because, as they wrote, "We would only further observe that every member of the legislature, previously to taking his seat, by solemn oath or affirmation, declares, "that he will not do or consent to any act or thing whatever that shall have a tendency to lessen or abridge their rights and privileges, as declared in the constitution of this state.""

They had issues with numerous things in the proposed constitution that they thought would weaken the constitution of Penn., its lack of a Bill Of Rights, etc. They certainly took issue with the militia clauses, among many others.

Making an assumption that they saw the proposed federal government's control of The Militia as a threat to rights protected in their constitution:
"XIII. That the people have a right bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: And that the military should be kept under strict subordination to, and governed by, the civil power."


It is quite apparent there was no belief that "to bear arms" was a 'militia only' phrase, not by the Minority, and not in the State Constitution.

Holbrook may indeed be reaching in the 'mistake' you pointed out.

edit fixed quote

[Glenn Vardy]

124. True or false?

Ok, let's presume for a moment that the Second Amendment protects a personal right to "carry guns" for "hunting." In the First Congress debate, it was sugested that individuals make a payment, "established by law" to get excused from "carrying guns" for "hunting," true or false?

[jmg257]

125. As far as I know, false...

Along this context, most (all?) things about 'individuals making a payment' I have read from early Congressional debates were dealing with paying a penalty or substitution to take one's place to serve in the state Militia - often due to conscience of religion, when Congress was hatching out the 1st Militia Act.

On edit: Why someone would have to pay a substitution for not wanting to bear arms for hunting, or why Congress might debate about this, is beyond me. They did have power to come up with provisions and guidlines for organizing, disciplining and for arming the Militias. They had no power for dealing with how or if individuals chose to arm themselves for hunting (or self-defense).

Is there a related point between this and the question I asked you about the example showing 'right to bear arms' was not a strictly military phrase?

edit spelling & exapansion

[jmg257]

127. And? Was there more? nt

[Glenn Vardy]

129. If you need more, yes.

So "bear arms" in the Second Amendment obviously isn't about "carrying guns" for "hunting."

Now, you could say that it's possible to carry guns for hunting, so my understanding is too "narrow." I don't care how "narrow" it is, it's based on the FACTS, not what's possible. If you shoot an animal, or walk down the sreet with a gun in your pocket in case of confrontation with another person, you have NOT borne arms.

[hansberrym]

132. So what does "bear arms" mean to you? n/t

[hansberrym]

133. Were the "associators" of your post #50 "bearing arms"? n/t

[jmg257]

134. It just isn't that obvious, not when it was used in a broader sense often enough.

I am sorry to ask your opinion of this Pennsylvania quote again - I did not see someone had posted it earlier up thread.

Your response to him/her about the original proposed amendment by Madison was certainly thought-invoking (but still not convincing due to Pennsylvania et. al., comments during congressional debates about individual rights, the 'privilege to carry arms' etc.).

"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."


Cheers!

edit added quote referred to.

[Glenn Vardy]

135. THE reason

"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."

Compare that to this:
"The right to own arms, shall not be infringed."

If they were protecting a personal right to own guns, THAT'S what it would look like. But look at COMPLETE military context of the original draft. The objections that WOULD have been raised had they been protecting a personal right to own guns are:

1. "The people" was a phrase used to identify a collective body in ALL the state constitutions and this could be misconstrued.
2. "Bear arms" is a military expression and this could be misconstrued.
3. A "well regulated militia" is mentioned. Together with the military phrase "bear arms," it could DEFINATELLY be misconstrued.
4. Self defence and hunting aren't mentioned, but the "security of a free country" is mentioned and this could be misconstrued.
5. "Military service" is mentioned and together with all the OTHER things that give a military context, it could DEFINATELLY, DEFINATELLY be misconstrued.

Nobody raised any of these objections. But do you want to know an objection that WAS raised? The militia being "the best" security, because it left open the idea of a standing army being the SECOND best option to a "well regulated militia." As you'll know, "necessary to" can't be misconstrued. Would they have been that keen to stress the importance of a "well regulated militia" if the only purpose that the clause served was to throw in "a" reason for the amendment?

[jmg257]

136. Interesting, and good, points...

No doubt a/the primary reason for the security of the 2nd was to ensure an effective militia (as you obviously are aware), especially against powers given to the new congress.

And no argument that bear arms was very often associated with military purposes.

Thanks - I will think on this some more (tomorrow!).

[Glenn Vardy]

170. More on the purpose

PHILADELPHIA INDEPENDENT GAZETTEER (Samuel Bryan, prominent Anti-federalist, writing under the pseudonym "Centinel" September 9, 1789)

"It is remarkable that this article only makes the observation "that a well regulated militia, composed of the body of the people, is the best security of a free state;" it does not ordain, or constitutionally provide for, the establishment of such a one. The absolute command vested by other sections in Congress over the militia, are not in the least abridged by this amendment. The militia may still be subjected to martial law...may still be marched from state to state and made the unwilling instruments of crushing the last efforts of expiring liberty."

Quotes from newspaper articles like this should NOT be considered as proof of anything. Even today, just because somebody says or publishes something doesn't mean it's true. Judging from this article alone, to this anti-federalist, securing a well regulated militia is the purpose of the Second Amendment.

[hansberrym]

178. Remarkable indeed.

Judging from this article alone, to this anti-federalist, securing a well regulated militia is the purpose of the Second Amendment.

Seems the author complained that what was drafted did not do anything to secure State control over the militia. But if we add to that article some background info, such as the proposals of those PA anti-federalists, we understand very well the author's complaint. The PA Anti-federalists wanted a broad individual right to bear arms AND greater state control over the militia, but they got only the individual right and some lip service regarding the other(that a well regulated militia, composed of the body of the people, is the best security of a free state} in Madison's draft, so the Author was understandably disappointed. Glass half full and all that.


From The Address and Reasons of Dissent Of the Minority of the Convention Of the State of Pennsylvania, to their Constituents:
Seventh. 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.

Eighth. The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times, on the lands' they hold, and on all other lands in the United States not inclosed, and in like manner to fish in all navigable waters, and others not private property, without being restrained therein by any laws to be passed by the legislature of the United States.

Eleventh. 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.

[Glenn Vardy]

180. He didn't mention state control

"It is remarkable that this article only makes the observation "that a well regulated militia, composed of the body of the people, is the best security of a free state;" it does not ordain, or constitutionally provide for, the establishment of such a one. The absolute command vested by other sections in Congress over the militia, are not in the least abridged by this amendment. The militia may still be subjected to martial law...may still be marched from state to state and made the unwilling instruments of crushing the last efforts of expiring liberty."

Glenn
Judging from this article alone, to this anti-federalist, securing a well regulated militia is the purpose of the Second Amendment.

hansberrym
"Seems the author complained that what was drafted did not do anything to secure State control over the militia...."
-----------------------------------------------------

He doesn't refer to state control of the militia, AT ALL.

The article also shows that the reason FOR the amendment was the percieved danger of the powers invested in Congress over the militia in Article 1, Section 8. If they had power to provide for arming and disciplining the militia, they could destroy the militia through neglect. If that happened and the states took measures to keep their militia armed and disciplined, it couldn't be construed into an act of rebellion be Congress. If the AUTHOR thought that this draft secured a right for individuals to own guns to arm the militia in the event that Congress failed to do so, he wouldn't be complaining, because "the right of the people to keep and bear arms" was in that draft.

[hansberrym]

182. If you say so

The absolute command vested by other sections in Congress over the militia, are not in the least abridged by this amendment

Just what do you imagine this complaint is about? If Congress has abosolute control, what is left to the States?

Again, your argument is a form of evidence barring. You ignore what the PA Minority asked for and then pretend we can't make hash of the commentary.
Put your head in the sand if it works for you, but that is not reason.

[Glenn Vardy]

190. He didn't refer to state power over the militia

hansberrym
"If Congress has abosolute control, what is left to the States?"
----------------------------------

If *I* answer the question that *YOU* have asked, then *I* will be referring state power over the militia. This doesn't prove that *HE* referred to it in that article.

[hansberrym]

192. One has to try very hard not to get it.

If one reads the proposals of the PA anti-federalists, it is difficult NOT to understand the complaints in the quote you posted. .

The quote you posted:
It is remarkable that this article only makes the observation "that a well regulated militia, composed of the body of the people, is the best security of a free state;" it does not ordain, or constitutionally provide for, the establishment of such a one. The absolute command vested by other sections in Congress over the militia, are not in the least abridged by this amendment. The militia may still be subjected to martial law...may still be marched from state to state and made the unwilling instruments of crushing the last efforts of expiring liberty."


When he complains that Congress still has absolute command over the militia, how can one not see his complaint is that no power was returned to the states. The last sentence of your quote makes clear that he is not merely reporting, but complaining. Do you doubt that he is complaining? Or do you wonder what he is complaining about?


When he says that "the militia may still ... be marched from state to state" it is an obvious reference to the 11th proposal(below) of the PA Minority (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)


When he says that "It is remarkable that this article only makes observation..." (my emphasis) he is bemoaning that the proposed strong language of the 11th proproposal{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} was answered in the draft of 2A only with the weak statement "that a well regulated militia, composed of the body of the people, is the best security of a free state".






From The Address and Reasons of Dissent Of the Minority of the Convention Of the State of Pennsylvania, to their Constituents:
Seventh. 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.

Eighth. The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times, on the lands' they hold, and on all other lands in the United States not inclosed, and in like manner to fish in all navigable waters, and others not private property, without being restrained therein by any laws to be passed by the legislature of the United States.

Eleventh. 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.

[Glenn Vardy]

193. Safeguard

"It is remarkable that this article only makes the observation "that a well regulated militia, composed of the body of the people, is the best security of a free state;" it does not ordain, or constitutionally provide for, the establishment of such a one. The absolute command vested by other sections in Congress over the militia, are not in the least abridged by this amendment. The militia may still be subjected to martial law...may still be marched from state to state and made the unwilling instruments of crushing the last efforts of expiring liberty."

"It is remarkable that this article only makes the observation "that a well regulated militia, composed of the body of the people, is the best security of a free state;" it does not ordain, or constitutionally provide for, the establishment of such a one. The absolute command vested by other sections in Congress over the militia, are not in the least abridged by this amendment. The militia may still be subjected to martial law...may still be marched from state to state and made the unwilling instruments of crushing the last efforts of expiring liberty."


When he complains that Congress still has absolute command over the militia, how can one not see his complaint is that no power was returned to the states.

He's complaining that it doesn't COMPELL CONGRESS to "ordain, or constitutionally provide for, the establishment of" a "well regulated militia." He ISN'T complaining because the states had not retaining that power all to themselves. Things had moved on from the proposal period.

Where in Article 1, Section 8. does Congress have the power to confiscate the private guns of individuals?

The only concern that was raised (on several occasions) was that Congress had the power to "disarm" the "MILITIA" through neglect, not by confiscating guns. If Congress tried to destroy the militia through neglect, and the states took measures to "provide for the arming AND DISCIPLINING" of their militia forces, because of the Second Amendment, it couldn't be construed into an act of rebellion. The Second Amendment is an added safeguard against the abuse of power that takes no power away from Congress.

[hansberrym]

194. We almost agree on something

Where in Article 1, Section 8. does Congress have the power to confiscate the private guns of individuals?
The anti-federalist imagined many evils lurking in the shadows. Why? I don't know, but hindsight being 20/20, they should have been worried about the commerce clause!


The only concern that was raised (on several occasions) was that Congress had the power to "disarm" the "MILITIA" through neglect, not by confiscating guns.

Read again, or for the first time, the Address of the PA Minority and the proposal "not to disarm the people or any of them". I can't tell you specifically why the PA Minority were concerned that Congress might disarm the people, but the PA Minority quote demonstrates that the concern was present. In addition to the PA Minority proposals I posted earlier, there are the writings of John Smilie, as well as the individual right to bear arms proposal of Sam Adams and the proposal that came from New Hampshire that demonstrate a concern that citizens in general might be disarmed.


If Congress tried to destroy the militia through neglect, and the states took measures to "provide for the arming AND DISCIPLINING" of their militia forces, because of the Second Amendment, it couldn't be construed into an act of rebellion. The Second Amendment is an added safeguard against the ]abuse of power that takes no power away from Congress

Well we agress on something, but I would add what Tenche Coxe said to your appraisal of the second amendment. The right is held by the people and allows them to keep and bear their private arms. Meaning congress could not disarm the people, even if Congress chose not to arm the militia, or chose to take back arms Congress had issued. The RKBA is protected in explicit terms, while the power of the states' to arm their owm citizens should Congress refuse is only implied by the first part of 2A.


But here is where we do not agree. Congress was still left in control of the militia, and can in fact march them out of their own state. The second amendment, as your source stated, does nothing to prevent that. The second amendment is not about the power of the states over the militia and does not address the concerns of the 11th proposal, instead 2A protects the right of the people as per proposal #7 of the PA Minority.


BTW: Do you agree with the Heller dissent (right to bear arms in a state organized militia) or are you in the political right camp that reads the second amendment much the way the TN supreme court did in Aymette?

[Glenn Vardy]

195. Almost?

Glenn
"Where in Article 1, Section 8. does Congress have the power to confiscate the private guns of individuals?"

hansberrym
"The anti-federalist imagined many evils lurking in the shadows. Why?"

Reply: (As usual, you haven't answered the question.
The reason FOR the Second Amendment was the power that Congress had in Article 1, Section 8. If there's nothing THERE about the private ownership and carrying of guns, the Second Amendment won't be about the private ownership and carrying of guns. Show me the text from any of the ratification debates where it's suggested that all individuals should have a right to own guns to arm the militia with in the event that Congress attempts to destroy the militia through neglect of those powers.)
----------------------------------------------------------
Glenn
"The only concern that was raised (on several occasions) was that Congress had the power to "disarm" the "MILITIA" through neglect, not by confiscating guns."

hansberrym
"Read again, or for the first time, the Address of the PA Minority and the proposal "not to disarm the people or any of them"..."

Reply: (You keep going on and on about what ONE of the MINORITY in ONE state convention wrote down as though this MUST be what the Second Amendment protects. Even the part that you quote demonstrates that it's a mishmash of ideas hurriedly written down. Why add "or any of them" if "the people" meant "individuals?"

Here's the full text of this proposal that wasn't even debated by the Convention, let alone voted on and sent by the State to Congress:
"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."

Of the purposes given in this proposal, that wasn't even debated by the Convention, nor voted on, nor sent by the State to Congress, which is the one that appears in the Second Amendment?

Are we to believe from this document that, at that time, it was a traditionally and well held view that if a man killed game, he'd borne arms? The original document, that was written down there and then in the convention, doesn't exist. We don't even know if any of the minority signed it. The published printed version OF THAT WRITTEN DOCUMENT doesn't have any signatures on it, just a list of the names of the minority.)
------------------------------------------------------------

hansberrym
"But here is where we do not agree. Congress was still left in control of the militia, and can in fact march them out of their own state. The second amendment, as your source stated, does nothing to prevent that."

Reply: (I've said that the Second Amendment takes no power away from Congress.)
-------------------------------------------------------------

hansberrym
"The second amendment.. does not address the concerns of the 11th proposal..."

Reply: (1201."..Suppose, then, that congress should refuse to provide for arming or organizing them, the result would be, that the states would be utterly without the means of defence.."

1202. "It is difficult fully to comprehend the influence of such objections, urged with much apparent sincerity and earnestness at such an eventful period. The answers then given seem to have been in their structure and reasoning satisfactory and conclusive. But the amendments proposed to the constitution (some of which have been since adopted) show, that the objections were extensively felt, and sedulously cherished. The power of congress over the militia (it was urged) was limited, and concurrent with that of the states.. If congress did not choose to arm, organize, or discipline the militia, there would be an inherent right in the states to do it. All, that the constitution intended, was, to give a power to congress to ensure uniformity, and thereby efficiency. But, if congress refused, or neglected to perform the duty, the states had a perfect concurrent right, and might act upon it to the utmost extent of sovereignty." - Joseph Story, Commentaries on the Constitution.

Which is the adopted amendment he refers to? The same thing is said in Tucker's Blackstone.

[hansberrym]

197. Holy Hurricanes Batman! Your arguments are all over the place!

Glenn
"Where in Article 1, Section 8. does Congress have the power to confiscate the private guns of individuals?"

hansberrym
"The anti-federalist imagined many evils lurking in the shadows. Why?"

Reply: (As usual, you haven't answered the question.
The reason FOR the Second Amendment was the power that Congress had in Article 1, Section 8. If there's nothing THERE about the private ownership and carrying of guns, the Second Amendment won't be about the private ownership and carrying of guns. Show me the text from any of the ratification debates where it's suggested that all individuals should have a right to own guns to arm the militia with in the event that Congress attempts to destroy the militia through neglect of those powers.)


Are you arguing from false premises(The reason for....), assuming your own conclusion(show me...), or is this yet another false dichotomy being set-up? Why are you insisting there is but one reason for 2A? And why are you ignoring the calls for an individual right to bear arms/non-disarming of individuals? Proposal #7 of the PA Minority, Sam adams proposal, the New Hamshire proposal all are evidence that the concern was present. Whether it arose from fear that Congress would abuse its art1, sec8 powers, or from somewhere else entirely is beside the point. The concern existed and you simply do refuse to deal with it.

The anti-federalists proposed both individual RKBA and state power provisions, why are you assuming that 2A answers only one?


=============

Of the purposes given in this proposal, that wasn't even debated by the Convention, nor voted on, nor sent by the State to Congress, which is the one that appears in the Second Amendment?

Here you play the same false dichotomy game("which is the one"). The answer is that 2A addressed BOTH concerns, and not surprisingly from a Federalist POV, they spoke directly to the individual right to bear arms of proposal #7, but only spoke in very mushy terms about the state power concerns voiced in proposal #11. It is pretty silly for you to play the "only one" game when the words "state ...power" are not even used in 2A


===========


hansberrym
"The second amendment.. does not address the concerns of the 11th proposal..."

Reply: (1201."..Suppose, then, that congress should refuse to provide for arming or organizing them, the result would be, that the states would be utterly without the means of defence.."

1202. "It is difficult fully to comprehend the influence of such objections, urged with much apparent sincerity and earnestness at such an eventful period. The answers then given seem to have been in their structure and reasoning satisfactory and conclusive. But the amendments proposed to the constitution (some of which have been since adopted) show, that the objections were extensively felt, and sedulously cherished. The power of congress over the militia (it was urged) was limited, and concurrent with that of the states.. If congress did not choose to arm, organize, or discipline the militia, there would be an inherent right in the states to do it. All, that the constitution intended, was, to give a power to congress to ensure uniformity, and thereby efficiency. But, if congress refused, or neglected to perform the duty, the states had a perfect concurrent right, and might act upon it to the utmost extent of sovereignty." - Joseph Story, Commentaries on the Constitution.

Which is the adopted amendment he refers to? The same thing is said in Tucker's Blackstone.


Madison also said the states have an inherent right to arm the militia should congres refuse, but neither he nor Story said the state had the power to prevent Congress from marching the militia out of their own state.


Tucker talks as well about individual RKBA, he understood that 2A protected both concerns voiced by the anti-federalists.

[Glenn Vardy]

198. Vindicated

"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..."
-------------------------------------------------

Glenn
"Of the purposes given in this proposal, that wasn't even debated by the Convention, nor voted on, nor sent by the State to Congress, which is the one that appears in the Second Amendment?"

hansberrym
"Here you play the same false dichotomy game("which is the one"). The answer is that 2A addressed BOTH concerns,.."

Reply: Is it really a false dichotomy to point out that the defence of their "state" is the only purpose which "appears" in the Second Amendment?

[hansberrym]

200. Moe like "Windicated"

Reply: Is it really a false dichotomy to point out that the defence of their "state" is the only purpose which "appears" in the Second Amendment


It is a false dichotomy to suggest the RKBA is limited to one or the other. You pretend as if it cannot include both, And since we know, at least we who read know, that the anti-federalists asked for both an individual right and a right to defend the state, there is no good reason to assume it is one or the other, and many very good reasons read it as both. Going back to the PA Const. right to bear arms, James Wilson read that as both, also the early state court cases came down on the individual rights side. And even Aymette, which found only a politial right ot bear arms, did not limit that right to those serving in the state organized militia -to do so would have undermined the ratonale the court presented for the Tenn. right to bear provision from being adopted, which they saw was as a check on government power.


In 2A, the "security of a free state" is not presented as a reason for the RKBA to exist, or as a limitiation on the right(not written as a qualifier), but as a rationale for the non-infringement of the right. Veering off to the "preamble" we ought to consider what the words "free state" meant. I will argue they mean something akin to free government, one that is not tyrannical. See "Memorial and Remonstraonce" as well as several references to free governemnt in other federal Bill of right proposals, as well as state BOR provisions. The militia then is not only a defense against external enemies, but a bulwark against the abuse of governemnt power.

[Glenn Vardy]

202. Veering off

hansberrym
"Veering off..."

That's your problem. I posted an article to prove that the Second Amendment is a safeguard against the powers in Article 1, Section 8, and you veered off onto the PA minority proposal (which wasn't even debated, nor sent to Congress by the State for consideration). Now that I've addressed that, you're veering off by going on about how the stated purpose of the Second Amendment isn't a limitation. Their are an infinite number of things that the text of the Stated purpose doesn't limit. Does this mean that we can pluck one of them out of the air and claim that THAT is protected by the amendment? No, THE purpose is to secure "a well regulated militia" for THE purpose of "the security of a free State," and that's what the "declaration and guarantee" (both clauses) of the Second Amendment secures.

[jmg257]

207. Yes - the 2nd secures 'a well regulated Militia' made up of the people...when can I get my M16?

Me being 'a people' AND a member of the Militia of the several States.

[hansberrym]

209. To the Miller decision?

Your problem is that you do not want to veiw the evidence in total. Instead you want to break it to little pieces and then put it back together as you want, sweeping the unused bits of information out of view so as not to detract from your conclusion.

I took issue with your assertion that "Quotes from newspaper articles like this should NOT be considered as proof of anything." My counter is that such newspaper articles can easily be understood. For example if one reads what the PA anti-federalists proposed there is no difficulty understanding Samuel Bryan's complaint. My "veering off" to the PA Minority proposal to learn what was propoed is just good common sense, but your assertion is nothing more than thinly veiled evidence barring.

Their are an infinite number of things that the text of the Stated purpose doesn't limit. Does this mean that we can pluck one of them out of the air and claim that THAT is protected by the amendment? No, THE purpose is to secure "a well regulated militia" for THE purpose of "the security of a free State," and that's what the "declaration and guarantee" (both clauses) of the Second Amendment secures.


Well I am glad that you accept that the RKBA is not limited to a single purpose by the opening text(A well-regulated militia, being necessary to the security of a free state) of the second amendment. That ("Their are an infinite number of things that the text of the Stated purpose doesn't limit") is a refreshing admission from an anti. Usually I have to bring in the grammar books again and note that Absolute Construction does not modify the subject of the independent clasue.

And no, we don't pick things out of thin air, we examine what was proposed, what was asked for, what was said at the time, and how commentators and judges evaluated the right to bear arms afterwards in order to understand the full scope of the RKBA.

By putting quotes around "declaration and guarantee", I assume you are veering off to the Miller decision.

[Glenn Vardy]

212. "In total?"

Glenn:
"That's your problem. I posted an article to prove that the Second Amendment is a safeguard against the powers in Article 1, Section 8, and you veered off onto the PA minority proposal (which wasn't even debated, nor sent to Congress by the State for consideration). Now that I've addressed that, you're veering off by going on about how the stated purpose of the Second Amendment isn't a limitation. Their are an infinite number of things that the text of the Stated purpose doesn't limit. Does this mean that we can pluck one of them out of the air and claim that THAT is protected by the amendment? No, THE purpose is to secure "a well regulated militia" for THE purpose of "the security of a free State," and that's what the "declaration and guarantee" (both clauses) of the Second Amendment secures."

Your problem is that you do not want to veiw the evidence in total....

When you talk about viewing the evidence "in total," you mean you don't want each piece of overblown 'evidence' to be scrutinized properly. When it IS scrutinized properly, what you have "in total" amounts to nothing. I mean, maybe they left "killing game" to the states and their own gaming laws? You can't force things into the Second Amendment that aren't there.

I am glad that you accept that the RKBA is not limited to a single purpose

I didn't accept that. I said you can't pluck any other purpose out of the air.

By putting quotes around "declaration and guarantee", I assume you are veering off to the Miller decision.

To be fair, you're veering off towards the grammatical construction of the Second Amendment. I only mentioned that the purpose of the WHOLE of the Second Amendment is the ONE stated purpose.

[hansberrym]

213. Since you insist on tossing aside common sense, logic, and now grammar

just what is left for you to make a supposedly "proper" evaluation of the evidence?


Oh, I forgot that you also toss aside inconvenient history such as early court cases that simply do not support your interpretation.


So who were you quoting ("declaration and guarantee") if not the Miller court?

[Glenn Vardy]

216. "Tossing aside" = refuting

hansberrym
"I forgot that you also toss aside.. early court cases that simply do not support your interpretation."
-----------------------

If I WERE tossing it aside, I'd be countering it by posting a list of court cases the length of my leg that support my view. I addressed what that court said and you haven't commented on what I said. He was wrong to say that persons of ANY age and ANY sex could carry ANY weapon for service in a "well regulated militia."

[hansberrym]

219. Pray tell

I addressed what that court said and you haven't commented on what I said. He was wrong to say that persons of ANY age and ANY sex could carry ANY weapon for service in a "well regulated militia."

Which post are you referring to?

[Glenn Vardy]

231. You mentioned the early case

Which post are you referring to?

hansberrym, post 213. "Oh, I forgot that you also toss aside inconvenient history such as early court cases that simply do not support your interpretation.

Glenn, post 216. "If I WERE tossing it aside, I'd be countering it by posting a list of court cases the length of my leg that support my view. I addressed what that court said and you haven't commented on what I said. He was wrong to say that persons of ANY age and ANY sex could carry ANY weapon for service in a "well regulated militia.""
---------------------------

And you STILL haven't commented on what I said.

[hansberrym]

234. Whose on first?

I addressed what that court said and you haven't commented on what I said. He was wrong to say that persons of ANY age and ANY sex could carry ANY weapon for service in a "well regulated militia.""



Where did you address what the court said in the early court cases?

[Glenn Vardy]

199. Withdrawn proposal

hansberrym
"And why are you ignoring the calls for an individual right to bear arms/non-disarming of individuals?.. Sam adams proposal.."
---------------------

By sticking to the point, I'm "ignoring" nothing.

I think I've already dealt with this "Samuel Adams" quote already. There's no evidence from the source that this proposal is the work of Sam Adams. But let's have a look at it anyway.

"And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless necessary for the defense of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances; or to subject the people to unreasonable searches and seizures of their persons, papers or possessions." - Debates and Proceedings in the Convention of the Commonwealth of Massachusetts.

This proposal was withdrawn by Massachusetts. But even so, it isn't proposing a right for individual "citizens" to own arms.

Why doesn't it say:
"And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience, or the rights of citizens to own arms?"

No, they deliberately say "; or to prevent THE PEOPLE of the United States... from keeping their own arms." The fact that it was mentioned that the citizens who compose "the people" are peaceable doesn't mean that the right would have belonged to each peaceable citizen. "Their own arms" is reference to their own militia, as opposed to a standing army, the bain of liberty.

[hansberrym]

201. Too funny

No, they deliberately say "; or to prevent THE PEOPLE of the United States... from keeping their own arms." The fact that it was mentioned that the citizens who compose "the people" are peaceable doesn't mean that the right would have belonged to each peaceable citizen. "Their own arms" is reference to their own militia, as opposed to a standing army, the bain of liberty.


"or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms"


Get yourself a book on grammar and read up on collective nouns, singular vs. plural. Note that "who are peaceable citizens" refers back to "the people of the united states" and refers to them as individuals. The next phrase "from keeping their own arms" reinforces the notion that the writer is referring to individuals, by referring to individual possesion("their own arms").


Is the phrase "who are peaceable citizens" an Apposition or qualifier? Are you really suggesting the former?

Why doesn't it say: Oh, I don't know, could it possibly be that the author likely has no objection to preventing people who are not peaceable from keeping their own arms?

Maybe the author could not imagine all of the people being anything but peaceable citizens, maybe he simply went on as if Shay's rebellion never happened -or maybe he was a rational person.

[Glenn Vardy]

203. Stop veering

Glenn
"Why doesn't it say: "And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience, or the rights of citizens to own arms?"...."

hansberrym
"...could it possibly be that the author likely has no objection to preventing people who are not peaceable from keeping their own arms?"
------------------------

Why can't you address the point?

[hansberrym]

205. You didn't make a point, and

please stop butchering the English language. It didn't do anything to you.

[jmg257]

208. What would be very surprising, IF Glen was right, is that the members of congress,

men such as James Monroe, E Gerry, RH Lee and all these other gentlemen who just fought/went through a revolution against an oppressive government, would knowingly give up the security of their right to arms.

They being exempt from militia duty.



Not likely.



"To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them."

RH Lee

[Glenn Vardy]

228. Spot the blatant assertion

What would be very surprising, IF Glen was right, is that the members of congress, men such as James Monroe, E Gerry, RH Lee and all these other gentlemen who just fought/went through a revolution against an oppressive government, would knowingly give up the security of their right to arms.

When you say "their right to arms," you mean their personal right to possess a forearm. Post their State arms bearing provisions to see IF they had the right which you blatently assert they had.

"To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them."

RH Lee

He refers to the whole "body" of "the people" possessing arms. They ALWAYS referred to "the people" and not to each individual when discussing "arms." He meant that the people shouldn't be dependent on a standing army for their security, that's all. When he refers to the young being "taught alike," he means young militiamen being uniformly "trained to arms."

[jmg257]

241. Yes - their individual right to arms. They had it, they wouldn't surrender it.

And they wouldn't knowingly leave it unsecure if it was in jepordy.

Certainly a blatant assertion. 100%. I'd bet your life on it. ;)

Lee thought the people should always be armed. Why I bet your life he wouldn't leave that right unsecure...his right individually, and the people's individually and collectively.

[Glenn Vardy]

211. Head in the sand

You didn't make a point

No, I made a VALID point that you can't address.

[jmg257]

206. Holy Batshit..."themselves", "citizens", "people", "own" are all collective words???

Sorry Glen, you lost me now.

At this rate we can inter pet anything we read to mean anything we want.

Why such discussions are so damn annoying.

[Glenn Vardy]

225. Context

..."themselves", "citizens", "people", "own" are all collective words???

Firstly, it isn't "people," it's "THE people."

I wouldn't dream of claiming that the other words are ALWAYS used in their collective sense. But people on YOUR side of this debate always DO claim that they're always used in the individual sense. It depends on the context in which they're used. For example, If "the people" have the right to govern "themselves" as a free and independant State, "themselves" is used in the collective sense. Even the word "alone" can be used in the collective sense depending on the context. For example, "the people alone" have the right to change or abolish the government.

[Surf Fishing Guru]

210. Oh Joy, more to refute.

He's complaining that it doesn't COMPELL CONGRESS to "ordain, or constitutionally provide for, the establishment of" a "well regulated militia." He ISN'T complaining because the states had not retaining that power all to themselves.

Centinel is complaining because the proposed 5th Article of Amendment begins with a strong statement of general militia principles but does nothing to ensure the permanence of the principle. There was nothing controversial in the declaratory clause of the Amendment, the statement contained universally accepted maxims of republican principles. The Federalists, when arguing for the proposed Article I § 8, cl 16 federal militia powers, asked the Anti-Federalists rhetorically,

"If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions."

Hamilton, The Federalist 29, January 10, 1788

Things had moved on from the proposal period.

As Centinel complained, the 2nd Amendment has no influence on militia powers. In September of 1789 there had not yet been an exercise of Article I, § 8 authority to establish regulations for the militia, the enactment of the first Militia Act is some 2 1/2 years away. 1789 was centered on debating the proposed Amendments demanded by the states with some making their earlier ratification of the Constitution contingent upon a bill of rights being added (with NC and RI not signing the Constitution until the debate over the Amendments was over and they were adopted in joint resolution).

You become so focused on the minutiae that you think proves your theory that you ignore the larger principles at work (that your theory violates).

Where in Article 1, Section 8. does Congress have the power to confiscate the private guns of individuals?

Correct, there is none. All the 2nd Amendment "does" is to redundantly forbid the government from exercising powers that were never granted to it. There is zero federal power granted to even contemplate let alone act upon the personal arms of the private, individual citizens.

THAT is the total and complete explanation of the "scope" of the individual right to keep and bear arms; not the speculative, subjective agenda driven inspection / dissection / mutation / perversion of the 2nd Amendment you are engaging in . . . As SCOTUS said, the right is not granted by the Constitution and is not IN ANY MANNER dependent upon the Constitution for its existence.

The only concern that was raised (on several occasions) was that Congress had the power to "disarm" the "MILITIA" through neglect, not by confiscating guns.

No, the danger is that Congress had plenary authority to declare who shall constitute the militia and that is why the conscientious objector language was discarded; it was feared that it could be used as a handle to use Article I, § 8 militia powers to disarm the people.

To link the RIGHT to bear arms with militia powers was thought dangerous because Congress could declare who is religious scrupulous and thus command who shall be barred from bearing arms. Since the operation of the 2nd was to secure a RIGHT and a right is an exception / exemption of power, it remains entirely in the conscience of the individual to NOT exercise the RIGHT for whatever reason he finds compelling . . . Think of it as the right to remain silent being protected by the right of free speech. . . .

As Rep Gerry argued in the debates of what would become the 2nd Amendment:

"This declaration of rights, I take it, is intended to secure the people against the mal-administration of the government; if we could suppose that in all cases the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms. What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now it must be evident, that under this provision, together with their other powers, congress could take such measures with respect to a militia, as make a standing army necessary. Whenever government mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.

The Congressional Register, 17 August 1789

Creating exemptions from militia duty is entirely within the Article I, § 8 militia authority of Congress, as is creating alternate means of service or the allowance of payment for someone to serve in your stead.

If Congress tried to destroy the militia through neglect, and the states took measures to "provide for the arming AND DISCIPLINING" of their militia forces, because of the Second Amendment, it couldn't be construed into an act of rebellion. The Second Amendment is an added safeguard against the abuse of power that takes no power away from Congress.

You need to read militia case law; such arguments were used but failed to stop federal preemption and the 2nd Amendment never entered the arguments of the states. The states can not take matters into their own hands and act in the vacuum left by federal inaction. The 2nd does not protect any state interest except indirectly, by barring the federal government from impacting the arms of its citizens.

You have the end action / ambit of this aspect of the 2nd Amendment more or less correct; you just mislabel the entity receiving that protection from federal inaction. The esteemed constitutional commentator Cooley explained this:

• Section IV. -- The Right to Keep and Bear Arms.
  
  The Constitution. -- By the second amendment to the Constitution it is declared 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 amendment, like most other provisions in the Constitution, has a history. It was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people, and as a pledge of the new rulers that this tyrannical action should cease. The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation.
  
  The Right is General. -- It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.
  
  Standing Army. -- A further purpose of this amendment is, to preclude any necessity or reasonable excuse for keeping up a standing army. A standing army is condemned by the traditions and sentiments of the people, as being as dangerous to the liberties of the people as the general preparation of the people for the defence of their institutions with arms is preservative of them.
  
  What Arms may be kept. -- The arms intended by the Constitution are such as are suitable for the general defence of the community against invasion or oppression, and the secret carrying of those suited merely to deadly individual encounters may be prohibited.
  
  Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 282-83 (1891)
  
  
  The above was repeated verbatim in the 1898 edition of Cooley's Principles, which was cited by SCOTUS in US v Miller.
  
  

[Glenn Vardy]

214. You don't "refute," you blatently assert.

I'm not wasting time addressing a page full of your blatent assertions.

"It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check." - Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 282-83 (1891)

Cooley is wrong.
It's clear from this that Cooley is expressing an ALTERNATE view than the accepted view of the day. A century after ratification, Cooley is identifying what he percieves to be an flaw/weakness in the accepted purpose of the amendment. In his own mind, he's created a less flawed purpose and meaning and claims that THAT must have been the actual purpose. That's not how it works.

[jmg257]

217. I had a problem with Cooley's view here too. The 1st Militia Acts were

pretty specific about which people were to be members of the Militias, and which weren't. And when they were supposed to be enrolled and how & how often they would be trained. Of course all the Militia might not be called to service, but it was clear whether you were (supposed to be) an enrolled member or not.

Of course the law MAY change (as long as such laws did not stray from what the Militia were - there was no power granted to recreate them), who is to be enrolled MAY change a bit...the new law would address such changes at that time. An omission could not (well-should not) be tolerated, well-functioning Militias were required by the constitution. The states & the people should see to this.

Since there was no requirement for those not in the Militias to be armed, such a pool of 'all who are fit to perform military duty' but not enrolled Militia members(???) could not be counted on anyway...this quote shows me little of the intent of the 2nd.

[Surf Fishing Guru]

220. The RKBA is not created by the COTUS, the organized militia is . . .

And what about the gun ownership of those who age out of their militia obligation? Was there anything that restrained government from disarming all 45 year old able-bodied men when their obligation to be an enrolled member of the militia had expired?

The gun ownership status of enrolled militia members is not a "rights" issue, it is a constitutionally created, statute dependent regulation. Congress possesses plenary authority to establish how the enrolled militia shall be armed.

Certainly the obligation to perform militia duty can't be considered a pre-existing right, predating the enactment of the Constitution as it is a condition ENTIRELY dependent of the Constitution for its existence. Cooley is in agreement with Cruikshank and Presser which says that the right to keep and bear arms is not granted / given / created / established by the Constitution nor dependent in any manner on the Constitution for its existence.

All Cooley is saying is that the protection sphere of the 2nd Amendment can not be qualified on one's militia attachment. The simple act of the feds not maintaining a system of militia organization would render the 2nd Amendment dead, extinguishing an object of the Amendment, keeping the government in check.

[jmg257]

221. No. The Militia existed before the COTUS. It is recognized in

the COTUS, and given very explicit duties to perform in securing the people's freedoms (read the preamble to see what was addressed in the body re: when the Militia of the several states were to be called forth and how they coincide).

Like only a few other entities mentioned in the COTUS, THE Miltia existed long before the constitution was ratified, and were not defined OR created by the constitution. Furthermore, no power was granted to congress to recreate them (as it did with the Dick Act). The guidelines established by congress in the 1st militia acts follow VERY closely how the militias had existed in the colonies/states for decades.


more soon on other points - cooking dinner...

[Surf Fishing Guru]

223. Hmmmm.

The Militia existed before the COTUS. It is recognized in the COTUS, and given very explicit duties to perform in securing the people's freedoms (read the preamble to see what was addressed in the body re: when the Militia of the several states were to be called forth and how they coincide).

All Cooley is saying is that the right to keep and bear arms is not dependent upon the government initiating or continuing any program or structure for the organization and training of the militia.

I agree that the general militia principle, (the political philosophy that the entire body of private citizens having their personal arms in their hands, without regulation of law or permission of authorities, standing as a barrier to domestic tyrants and foreign invaders) pre-dates the Constitution BUT the militia as an organized entity was certainly created by and can only operate within the confines of the pertinent Constitutional clauses and laws made in conformance to those clauses (i.e., The Militia Act of 1792).

The armed citizenry needed no action of Congress to exist, only to function when FORMED INTO MILITIAS WHEN NECESSARY . . . And that organized functionality is what the Constitution established.

It is also where government was derelict in their duty and that inaction begot us the Dick Act.

So I ask you, what, in your estimation, is the present status of that "pre-existing" militia merely "recognized" by Art I, § 8, cl 16?

For me and my understanding of present law, it no longer exists.

I see no entity, federal, state or private as presently legally permitted to call up any part of the citizenry, to muster, organize, train and deploy those citizens as militia to perform any of those familiar duties as set out in the Constitution. The citizens have been released from all militia obligations and the states were thrown a bone by Congress to permit them to organize "State Defensive Forces" for their own security that may or may not be subject to federal call up. That force has zero relation to the force defined by Art I, § 8, cl 16 . . .

Like only a few other entities mentioned in the COTUS, THE Miltia existed long before the constitution was ratified, and were not defined OR created by the constitution.

Ours is a government of conferred powers and the powers granted to Congress and the President establish field preemption barring any other entity from exercising those powers. The first militia case heard by SCOTUS in 1820 (Houston v Moore) remains a leading precedent on federal preemption and is cited in modern times. There were no residual powers for the states to collect and exercise and now, after the Dick Act, no residual powers remain for anyone to exercise after the total federal elimination of the "pre-existing" as "recognized" by the Constitution, militia.

Furthermore, no power was granted to congress to recreate them (as it did with the Dick Act).

That statement is irreconcilably contradictory unless it is your position that the Dick Act was an egregious unconstitutional exercise of illegitimate power.

The guidelines established by congress in the 1st militia acts follow VERY closely how the militias had existed in the colonies/states for decades.

And the status of that is what now?

The actions of Congress (and the Courts to a lesser degree) demonstrate precisely the path Cooley warned about with the added cherry on top of the Dick Act, the ultimate insult to the general militia principle the framers embraced. These are the exact circumstances why the right to arms was secured and why it exists independently of the Constitution and the entities created by / dependent upon the Constitution.

[jmg257]

224. Agree often, and more...

"But the militia as an organized entity was certainly created by and can only operate within the confines of the pertinent Constitutional clauses and laws made in conformance to those clauses (i.e., The Militia Act of 1792)."

"...but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage."

Articles of Confederation, 1777 In force: 1781-1789

"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States"

US Constitution 1788/1789

Militias existed before the Constitution. Most(all?) states had their own militia acts. Certain powers concerning these Militias of the several States were taken from the States and given to the Congress. An important purpose for the 2nd was to explicitly secure the right to arms (though already guaranteed by the militia clauses) against this shift of power.


"And that organized functionality is what the Constitution established."

They were already organized functioning entities, just organized in different ways, disciplined to different training, and armed to different standards..i.e. not well-regulated (as a whole). The Militia Acts cured that.

"So I ask you, what, in your estimation, is the present status of that "pre-existing" militia merely "recognized" by Art I, § 8, cl 16? "

I agree it no longer exists. The people's role in the Militia of the several States was obsoleted by congress and the creation of the federally controlled and funded National Guard. We did get thrown a bone by being in the "unorganized militia".

"I see no entity, federal, state or private as presently legally permitted to call up any part of the citizenry, to muster, organize, train and deploy those citizens as militia to perform any of those familiar duties as set out in the Constitution. The citizens have been released from all militia obligations and the states were thrown a bone by Congress to permit them to organize "State Defensive Forces" for their own security that may or may not be subject to federal call up. That force has zero relation to the force defined by Art I, § 8, cl 16 . . ."

Agreed.

"That statement is irreconcilably contradictory unless it is your position that the Dick Act was an egregious unconstitutional exercise of illegitimate power."

You said it. No power was granted to create a 'new militia'. The term 'Militia' used in the constitution refers to very specific State entities which were well understood in the colonies for decades, and especially most recently under the AOC. Plenty of discussion on how/what militias COULD be (Hamilton #29 and his 'select militia'), but THE existing Militia are what was codified in the COTUS. Congress does stuff on behalf of the people all the time. As Madison observed when referring to a BOR: "The restrictions however strongly marked on paper will never be regarded when opposed to the decided sense of the public".

"The actions of Congress (and the Courts to a lesser degree) demonstrate precisely the path Cooley warned about with the added cherry on top of the Dick Act, the ultimate insult to the general militia principle the framers embraced. These are the exact circumstances why the right to arms was secured and why it exists independently of the Constitution and the entities created by / dependent upon the Constitution."

As Gerry said: "What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Whenever governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.

And here we are.

[Glenn Vardy]

232. Power to organize

THE Militia existed long before the constitution was ratified, and were not defined OR created by the constitution. Furthermore, no power was granted to congress to recreate them (as it did with the Dick Act).

Well, "recreate" is YOUR word. Congress had the power to "organize" the militia, and that's what they did.

[jmg257]

242. Of course. And tell me how the National Guard is in keeping with

the intent of the constitutional Militias? State entities? Not relying on federally-supplied arms? Made of the entire body of the people? Mandatory service?

You love pointing out the "intent" of the 2nd, based on YOUR notions of collective vs individual, irregardless of numerous other non-militia uses of the phrase 'right to keep and bear arms', the realities of today (i.e. court interpretations), etc. Which is fine.

The actual constitutional Militia and the intent of their organization & use & arming is much more obvious, and needs alot less thought. And shows why securing the right of the people to military grade arms was/is so important.

[jmg257]

255. Correct. Organize, not recreate.

"MR. KING , by way of explanation, said, that by organizing, the committee meant, proportioning the officers and men--by arming, specifying the kind, size, and calibre of arms,--and by disciplining, prescribing the manual exercise, evolutions, &c."

Rufus King--In Convention Aug 23, 1787


This intent all exactly supported in the Militia Act of 1792.

NO power to recreate or redefine what The exisiting Militia of the several States were, just how they were to be structured & trained, guidlines for arming, and how/when/why they would be called forth.


He was there, I'll take his word for it.

[jmg257]

222. More...

"Was there anything that restrained government from disarming all 45 year old able-bodied men when their obligation to be an enrolled member of the militia had expired?

Yes...lack of a power to disarm the people, and the 2nd amendment. I in no way believe that members of the 1st congresses had ANY intent to give up the security of their right to arms...they being exempt from militia duty. I guarantee you they were sure their right, and the right of all others, was secured.


"The gun ownership status of enrolled militia members is not a "rights" issue, it is a constitutionally created, statute dependent regulation. Congress possesses plenary authority to establish how the enrolled militia shall be armed."

OK. As long as the make sure they are armed - and armed effectively, and usually by supplying those arms themselves. Clearly debated and decided what the intent was during the militia act debates.


"Certainly the obligation to perform militia duty can't be considered a pre-existing right, predating the enactment of the Constitution as it is a condition ENTIRELY dependent of the Constitution for its existence."

Not really...of course its not a right at all. Obligation, yes - established long before the constitution. Congress reiterated membership in the existing Militias pretty much as it had been done in the various commonwealths for years and years (makes sense - as always the people themselves would be responsible for securing the blessings of liberty). THE Militias were well-established entities, and needed no definition - just organizing and disciplining and common guidelines to arming.


"Cooley is in agreement with Cruikshank and Presser which says that the right to keep and bear arms is not granted / given / created / established by the Constitution nor dependent in any manner on the Constitution for its existence."

Agreed.


"All Cooley is saying is that the protection sphere of the 2nd Amendment can not be qualified on one's militia attachment."

Agreed.


"The simple act of the feds not maintaining a system of militia organization would render the 2nd Amendment dead, extinguishing an object of the Amendment, keeping the government in check."

Right. Which is why "the feds not maintaining a system of militia organization"...THE Militia system already in place and recognized and required and tasked with specific duties by the COTUS, should not be tolerated. The states should ensure it - as they were State entities occasionally called to federal service, and the people - as the Miltia of the several States were the primary institutions responsible for securing their freedoms.

[Glenn Vardy]

230. Luther Martin

All Cooley is saying is that the protection sphere of the 2nd Amendment can not be qualified on one's militia attachment. The simple act of the feds not maintaining a system of militia organization would render the 2nd Amendment dead..

Actually, that's when the REAL purpose of the Second Amendment would kick-in. The people of the states could keep their militia forces maintained and Congress could NOT say that they don't have that right. It ain't just about the guns that militiamen carry, it's the WHOLE organization and disciplining of their militia that they have a right to maintain.

Luther Martin:
“By the next paragraph, Congress is to have the power to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States... For this extraordinary provision, by which the militia, the only defence and protection which the STATE can have for the security of THEIR RIGHTS against arbitrary encroachments of the general government, is taken entirely out of the power of their respective States, and placed under the power of Congress... the first attempt made by a State to put the militia in a situation to counteract the arbitrary measures of the general government, would be construed into an act of rebellion, or treason; and Congress would instantly march their troops into the State."

[Surf Fishing Guru]

218. Laughing now I am . . .

I'm not wasting time addressing a page full of your blatent assertions.

I only offer my analysis of primary sources. Those sources usually speak for themselves but often, when someone is encountered that is so far divorced from fundamental constitutional principles, these things need to be explained. Please, use the sources I used to argue your points. I'll wait.

You are the one positing unsubstantiated assertions making conclusions from cherry-picked "evidence" that demand the reader to violate constitutional principles as fundamental as conferred powers and retained rights.

Cooley is wrong.
It's clear from this that Cooley is expressing an ALTERNATE view than the accepted view of the day.

Think of the events of the day and who was embracing what he is denouncing . . . Cooley was composing this primer on the federal Constitution in a time when, in an effort to retain discriminatory practices, state authorities were enacting legal vehicles and inventing interpretations to avoid allowing Blacks to keep and bear arms. Since only Whites could be militia members a court ruling declaring that the 2nd Amendment only secures the arms of the militia is a good thing if you are a Southern racist. He was denouncing the invention of a militia conditioning; he was perpetuating the original meaning of the Amendment.

To be admitted back into the Union the rebel states had to ratify the 14th Amendment and rewrite their constitution's rights provision to come into agreement with the 2nd Amendment. If their arms provisions contained discriminatory language (holding out the right to arms for only White citizens) it was changed. How does that mandate make sense, is it even possible if the federal Amendment did not protect the rights of individuals?

Post Miller, this cancer of "state's right" and "militia right" and "collective right" theory infected the federal courts in 1942 and was allowed to fester, pretty much unchecked until Heller which invalidated those lower federal court travesties.

Cooley is identifying what he percieves to be an flaw/weakness in the accepted purpose of the amendment. In his own mind, he's created a less flawed purpose and meaning and claims that THAT must have been the actual purpose. That's not how it works.

He is pointing out the flaw / weakness of the interpretations embraced by oppressive racists, created then to perpetuate the policies that discriminated against Black citizens and embraced by statists in more modern times to try to extinguish the individual right to keep and bear arms.

[Glenn Vardy]

226. Prove your assertions. I'll wait.

I only offer my analysis of primary sources... Please, use the sources I used to argue your points. I'll wait.

You post sources, then make your OWN blatent assertions that aren't made in the sources. The Cooley quote DOES say what you think it says, so I only addressed that source. Just because someone said something a century later doesn't mean it's true. Just look at the ratification debates which are full of conflicting opinions. They weren't all true.

[Surf Fishing Guru]

233. At least I can find things that support me (that are still legally active) LOL.

Just because someone said something a century later doesn't mean it's true.

When it conforms with the philosophical, historical and legal record and is cited as a trusted authority by SCOTUS I tend to give it authoritative qualities.

Cooley just isn't "someone" debating points; he, along with Story, Rawle and Tucker are legal giants, considered by SCOTUS to be approved commentators, who wrote constitutional treatises explaining the principles of the Constitution, concepts that have been cited in thousands of cases across all levels of the judiciary.

All of those commentators interpret both the right to arms of the citizen and the 2nd Amendment in similar fashion, completely at odds with your fantasy.

Just look at the ratification debates which are full of conflicting opinions. They weren't all true.

What was the disagreement / debate between the framers regarding rights and specifically, the right to arms?

From my research, the disagreement / debate between the Federalists and Anti-Federalists regarding rights were focused on how best to secure them. I have never encountered any writing / opinion that the right to arms of the citizen was held to be of a different nature than any other fundamental right (conscience, speech, press, assembly, etc). Because of the unique form and structure of our Constitution the Federalists thought it unnecessary if not absurd and even dangerous to add a bill of rights to our Constitution. They presented multiple reasons, among them were (no specific order):

• Since the Constitution is a charter of conferred powers extending only to that expressly granted to government by the people and the people retain EVERYTHING not conferred to government, no power can be said to exist to injure the rights of the citizen.
  
  
• Our rights are uncountable - no list would ever adequately include them all and to omit any would permit someone to believe that those unlisted interests fall under the domain of government.
  
  
• That however the provisions were worded, those designing to usurp would use artful misconstruction to restrict the right; to invent a regulatory power when none was granted.

These themes are all evident in The Federalist 84:

• "I . . . affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."

Of course in the "ratification debates which are full of conflicting opinions" the Federalists "lost" on the issue of adding a bill of rights and we have those Amendments. As a concession to the Federalists and to recognize the validity of their arguments, the provisions that became the 9th and 10th Amendment were added.

AMENDMENT IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

AMENDMENT X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

So what PRECISELY were the "conflicting opinions" in the ratification debates that endorse your conditioned right theory on 2nd Amendment?

From where I sit it is YOUR arguments that fulfill every fear the Federalists conveyed in 84. It is you who are disposed to usurp, to steal illegitimate power by arguing that a provision intending to preserve liberty is actually a command for government to enact regulatory restrictions on the right.

You demand that the 2nd Amendment should be read as a permission slip for the citizen, allowing arms ownership and bearing only within a governmentally approved group of select arms bearers.

It is an absurd position, where is your evidence that the 2nd Amendment runs counter to everything the framer embraced? What you argue demands we violate the most elementary founding principles of this nation.

[Glenn Vardy]

245. My fantasy?

Story.. Tucker.. All of those commentators interpret both the right to arms of the citizen and the 2nd Amendment in similar fashion, completely at odds with your fantasy.

So you blatently assert.

Joseph Story, Commentaries on the Constitution:
"Suppose, then, that congress should refuse to provide for arming or organizing them, the result would be, that the states would be utterly without the means of defence.. It is difficult fully to comprehend the influence of such objections, urged with much apparent sincerity and earnestness at such an eventful period. The answers then given seem to have been in their structure and reasoning satisfactory and conclusive. But the amendments proposed to the constitution (some of which have been since adopted) show, that the objections were extensively felt, and sedulously cherished. The power of congress over the militia (it was urged) was limited, and concurrent with that of the states.. If congress did not choose to arm, organize, or discipline the militia, there would be an inherent right in the states to do it. All, that the constitution intended, was, to give a power to congress to ensure uniformity, and thereby efficiency. But, if congress refused, or neglected to perform the duty, the states had a perfect concurrent right, and might act upon it to the utmost extent of sovereignty."

Which is that adopted amendment?
-------------------------------

Tucker's Blackstone:
"Congress has, moreover, power to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states, respectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by congress C. U. S. Art. 1, Sec. 8.

The objects of this clause of the constitution... were thought to be dangerous to the state governments.... all room for doubt, or uneasiness upon the subject, seems to be completely removed, by the fourth article of amendments to the constitution, since ratified, viz. "That a militia being necessary to the security of a free state, the right of the people to keep, and hear arms, shall not be infringed." To which we may add, that the power of arming the militia, not being prohibited to the states, respectively, by the constitution, is, consequently, reserved to them, concurrently with the federal government."

[Glenn Vardy]

229. The 1942 infection?

Post Miller, this cancer of... "collective right" theory infected the federal courts in 1942...

The collective right "theory" (as you say) wasn't invented by SCotUS in the Miller ruling.


"It is contended, that this article of the code, is in violation of the constitution of the United States, and of this state... The object of the clause first cited (Second Amendment), has reference to the perpetuation of free government ("free State"), and is based on the idea, that THE PEOPLE cannot be effectually oppressed and enslaved, who are not first DISARMED. The clause cited in our bill of rights (Texas), has the same broad object in relation to the government, and *IN ADDITION THERETO*, secures a PERSONAL RIGHT to the CITIZEN." - John Cockrum v. The State. 24 Tex. 394 (1859)

[Surf Fishing Guru]

235. Yes infection; a cancer that eats away at liberty.

The collective right "theory" (as you say) wasn't invented by SCotUS in the Miller ruling.

Correct, after all, Miller was decided in 1939. Your collective right theory was hatched in the FEDERAL COURTS in lower federal court decisions from the 1st and 3rd Circuits in 1942. These decisions ignored and dismissed the clear and unambiguous determinations of SCOTUS in Miller and substituted their agenda driven unsupported assertions to support a conditioned right interpretation of the 2nd Amendment.

Cases v US is a perfect example.

After quoting Miller's "In the absence of any evidence" paragraph this court states:

• "Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia. However, we do not feel that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go."

Well then, why characterize the Miller holding as, "Apparently, then, under the Second Amendment, . . ." if only to completely disregard the only "apparent" guideline or rule the case establishes. The Cases court then explains why they must do so, and tell us that the rules that the very recent Miller decision could be read to make (of the type usually employed in civilized warfare, that constitute the ordinary military equipment and in common use at the time) are no longer applicable but also dangerous to society. They also graciously offer their unsupported opinion on the intent of the framers regarding the extent of the prohibition of governmental power secured by the 2nd Amendment.

• "At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called 'Commando Units' some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities,-- almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,-- is in effect to hold that the limitation of the Second Amendment is absolute. Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result."

And there you have an honest reading of Miller and why they opine now that Miller formulated no rule that they need to follow.

The reason this had to be done was that by then, it was a "well known fact" or as the Miller court said, "within judicial notice," that nearly all guns have military usefulness. So, the shotgun that the Miller court said, "at this time . . . it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense" is now, according to the Cases court, if the Miller "rule" was to be applied, absolutely an arm beyond the reach of the NFA '34.

Thus, all guns would be protected, including the Cases appellant's .38 caliber revolver and nearly all gun control laws would be struck down. Expressing how uncomfortable the court was with what it deemed to be the inevitable societal implications of the Miller rule being applicable at their present time, the Cases court simply rejected and dismissed SCOTUS in Miller. But now the judges were faced with a dilemma. The law could afford them no comfort, the law was a bed of nails.

This realization, I would go so far as to say it manifested itself as a panic, forced them to turn to their only solace, the facts of the case before them. Just like the old lawyers rulebook says, if the facts are against you, argue the law -- if the law is against you, argue the facts . . .

The opinion continues:

• "We therefore turn to the record in the case at bar. From it it appears that on or about August 27, 1941, the appellant received into his possession and carried away ten rounds of ammunition, and that on the evening of August 30 of the same year he went to Annadale's Beach Club on Isla Verde in the municipality of Carolina, Puerto Rico, equipped with a .38 caliber Colt type revolver of Spanish make which, when some one turned out the lights, he used, apparently not wholly without effect, upon another patron of the place who in some way seems to have incurred his displeasure. While the weapon may be capable of military use, or while at least familiarity with it might be regarded as of value in training a person to use a comparable weapon of military type and caliber, still there is no evidence that the appellant was or ever had been a member of any military organization or that his use of the weapon under the circumstances disclosed was in preparation for a military career."

So now they make the incredible leap of abandoning Miller's focus on the type of weapon and its suitability for use in the common defense, to stipulating the state of mind of the person claiming a Second Amendment right as a condition for exercise. The Cases court changed the rules, they required that the person, as a prerequisite to maintaining a Second Amendment claim, have as his intent in using the firearm, essentially his paramount concern, the maintenance and preservation of the militia! If the gun isn't used by the military, its use is only protected if that use is "in preparation for a military career."

This joke of a court offered absolutely no basis other than personal feelings for dismissing SCOTUS and ignoring the obvious determinations required by Miller which this court acknowledges openly - but of course this court absurdly claims that the clear "rule" is the singular reason why they couldn't follow Miller because it forces legal eventualities they are uncomfortable with!

The obvious explanation for this despicable decision is the court undoubtedly felt that, as a matter of public policy, any meaningful limitation upon the government's power to restrict private ownership of firearms was unacceptable. The Cases court felt the need to sustain the status quo and decided the case accordingly, opining that the framers of the Second Amendment did not intend it to present an impediment to the government in this regard. That is I feel, the ultimate insult to the framers and the First Circuit.

This case was not decided on the law or precedent or the intent of the framers. It was decided for political reasons, none of which had as their concern, adherence to the Constitution, endurance of the founding principles or the continuation of this Republic.

Cases v US (39kb pdf) (along with US v Tot (52kb pdf)) is the genesis of your "state's right" and "militia conditioned right" theory. It was created for one purpose, to extinguish the 2nd Amendment as a claimable immunity for citizens in the courts of the USA so power could be illegitimately usurped to restrict the right to arms.

"It is contended, that this article of the code, is in violation of the constitution of the United States, and of this state... The object of the clause first cited (Second Amendment), has reference to the perpetuation of free government ("free State"), and is based on the idea, that THE PEOPLE cannot be effectually oppressed and enslaved, who are not first DISARMED. The clause cited in our bill of rights (Texas), has the same broad object in relation to the government, and *IN ADDITION THERETO*, secures a PERSONAL RIGHT to the CITIZEN." - John Cockrum v. The State. 24 Tex. 394 (1859)

That's a Texas state case not federal and it proves my argument not yours.

[Glenn Vardy]

236. None as blind as those who won't see.

"It is contended, that this article of the code, is in violation of the constitution of the United States, and of this state... The object of the clause first cited (Second Amendment), has reference to the perpetuation of free government ("free State"), and is based on the idea, that THE PEOPLE cannot be effectually oppressed and enslaved, who are not first DISARMED. The clause cited in our bill of rights (Texas), has the same broad object in relation to the government, and *IN ADDITION THERETO*, secures a PERSONAL RIGHT to the CITIZEN." - John Cockrum v. The State. 24 Tex. 394 (1859)

...it proves my argument not yours.

So, this case proves that the Texas provision AND the Second Amendment BOTH secure a "personal right to the citizen?" Incredible! What does "in addition thereto" mean to you? Why didn't they just say that they both "secure a personal right?"

[Surf Fishing Guru]

237. None as blind . . .

As those who would ignore a discussion of federal courts to concentrate on an inconsequential state court utterance.

Cherry pick tunnel vision.

[Glenn Vardy]

239. Must I prove you wrong only with "federal courts?"

None as blind as those who would ignore a discussion of federal courts to concentrate on an inconsequential state court utterance.

Look, you made the blatant assertion (as usual) that the collective rights "theory" was "hatched" in 1942. I've proven your blatant assertion wrong, ok?.

[Glenn Vardy]

248. Butchering Miller

So now they make the incredible leap of abandoning Miller's focus on the type of weapon and its suitability for use in the common defense...

The "common defence?"

The "focus" of Miller was when the Court said what the "obvious purpose" of both clauses of the Second Amendment was.

The Cases court changed the rules, they required that the person, as a prerequisite to maintaining a Second Amendment claim, have as his intent in using the firearm, essentially his paramount concern, the maintenance and preservation of the militia!

Miller's possession AND USE of his weapon had nothing to do with assuring the continualtion of the militia forces in Art 1, Sec 8.


US v. Miller
"The Constitution (Article 1, Section 8) as originally adopted granted to the Congress power--"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

Scalia & Co have read into Miller what they didn't say. Miller said "we cannot say" but Scalia & Co inserted their OWN version of what they WOULD have said had the gun been military type. If Millers gun HAD been a military type weapon, his possession AND USE of it would STILL have had NOTHING to do with the continuation of the militia forces in Article 1, Section 8. Scalia & Co said that the Second Amendment has no connection with those militia forces. The two are opposites.

[hansberrym]

268. "keep and bear such an instrument"? Holy Cow the Miller court is "butchering" your argument!

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


So much for your "bear arms" argument, Cruickshank, Presser, and Miller all disagreed with you. Heller was just icing on the cake.

But then it never would make sense to say: The right of the people to keep and "serve in the militia"! Context, Context!

[Glenn Vardy]

294. Opposites

All you've got is; to "keep (possess) and to bear (carry) arms" does make a gramatically correct sentence. But the drafting history shows that THAT'S not what the Framers intended.

Even if the court in Miller considered "bear arms" to mean "carry guns," Stevens understanding of THAT RULING would be the proper one because HE applied it to the "end in view" that Miller said that it "must be applied."

Mine and Stevens understanding takes into account what they said the "obvious purpose" of both clauses of the Second Amendment was. Yours and Scalia's understanding discards what they said the "obvious purpose" was and you base your opinions on what they said they "cannot say."


"The Constitution as originally adopted granted to the Congress power--"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."
-------------------------------

Scalia & Co have read into Miller what they didn't say. Miller said "we cannot say" but Scalia & Co inserted their OWN version of what they WOULD have said had the gun been military type. If Millers gun HAD been a military type weapon, his possession AND USE of it would STILL have had NOTHING to do with the purpose of the amendment; to assure the continuation of the militia forces in Article 1, Section 8. Scalia & Co said that the Second Amendment has no connection with those militia forces. The two are opposites.

[hansberrym]

302. That and more

Your meaning does not come close to making an understandable sentence. It can't plausibly fit the text of the amendment.

Even if the court in Miller considered "bear arms" to mean "carry guns," Stevens understanding of THAT RULING would be the proper one because HE applied it to the "end in view" that Miller said that it "must be applied."

Well now, the Heller majority also interpreted 2A with that end in view, but rather than discard inconvenient evidence as is your and Stevens' MO, they included what the Miller court said here:

We think that Miller’s “ordinary military equipment” language must
be read in tandem with what comes after: “rdinarily
when called for service men were
expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.” 307 U. S., at
179. The traditional militia was formed from a pool of
men bringing arms “in common use at the time” for lawful
purposes like self-defense. “In the colonial and revolutionary
war era, weapons used by militiamen
and weapons used in defense of person and home were one
and the same.” State v. Kessler, 289 Ore. 359, 368, 614
P. 2d 94, 98 "



And they did so without inventing a meaning that does not fit with the state RKBA provisions. It is silly to argue that the state constitutional provisions protecting the right of the people to bear arms only in service in the state organized militia. Such a right applied to the state Constitutions would have no effect in countering tyranny in government as was often cited (from Tenche COxe to Cooley) as a rationale for not infringing the RKBA.



If Millers gun HAD been a military type weapon, his possession AND USE of it would STILL have had NOTHING to do with the purpose of the amendment

Now who is basing an argument on what the Miller Court did not say? Yet all the while you ignore what the Miller court did say about "bearing arms".



why did the Miller court say "In the absence of evidence..." if they really didn't think the type of weapon mattered?

[Glenn Vardy]

303. "with THAT end in view."

Glenn
"All you've got is; to "keep (possess) and to bear (carry) arms" does make a grammatically correct sentence. But the drafting history shows that THAT'S not what the Framers intended."

hansberrym
"Your meaning does not come close to making an understandable sentence."

Reply: If you base your opinion on the grammar and not the drafting history, you'll distort the intended purpose. If you ignore the "ancient phraseology" that Madison spoke of, the Second Amendment could be distorted into meaning all kinds of things which can be grammatically correct, but wrong.
-----------------------------------------------

Glenn
"Even if the court in Miller considered "bear arms" to mean "carry guns," Stevens understanding of THAT RULING would be the proper one because HE applied it to the "end in view" that Miller said that it "must be applied." Mine and Stevens understanding takes into account what they said the "obvious purpose" of both clauses of the Second Amendment was. Yours and Scalia's understanding discards what they said the "obvious purpose" was and you base your opinions on what they said they "cannot say."

hansberrym
"Well now, the Heller majority also interpreted 2A with that end in view, but rather than discard inconvenient evidence as is your and Stevens' MO, they included what the Miller court said here: "We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “rdinarily when called for service men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 "

Reply: No. ALL of this ignores the part of Miller where they say what the "obvious purpose" of the Second Amendment was. They DIDN'T say it was to secure a personal, natural right to own "military equipment" for "lawful purposes like self-defense." These are SCALIA'S words.
Scalia forgets to say that those who "were expected" (had the duty) to supply there own arms were ONLY those who were eligible to serve in the militia. Not only does Scalia ignore the way Miller said the amendment "must be applied," they distort the OTHER parts that they claim support their opinion.
--------------------------------------------------

"The Constitution as originally adopted granted to the Congress power--"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

[hansberrym]

304. You are not only ignoring the grammar of 2A, but what many said including SCOTUS

about the right to keep and bear arms.

Reply: If you base your opinion on the grammar and not the drafting history, you'll distort the intended purpose. If you ignore the "ancient phraseology" that Madison spoke of, the Second Amendment could be distorted into meaning all kinds of things which can be grammatically correct, but wrong.


Your right of the people to keep and "serve in the militia" is nonsensical and ungrammatical, and does not fit with how the right to keep and bear arms was described during the drafting(Tenche Coxe quote discussed earlier in which "bear arms" is plainly not idiomatic) of 2A, nor how it was described by SCOTUS in several court cases(Cruickshank, Presser, and Miller) predating Heller. A reliance on "ancient phraseology" is not the same thing as insisting on a very narrow meaning that has no support from the founding era(who was it that said the RKBA applies only to those actually serving in a state organized militia?) and is in fact contradicted by what evidence there is.


Why is it wrong to consider everything the Miller court said? Should the Heller majority not have read the government's brief in Miller? Why was the Heller majority wrong to consider what the words "in common use at the time" meant in the context of the Miller decision? Why was Scalia and the rest of the Heller majority wrong to continue reading the Miller opinion after reading the sentences you put so much stock in?

[Glenn Vardy]

305. zeugma

Your right of the people to keep and "serve in the militia" is nonsensical and ungrammatical...

http://www.onelook.com/?loc=rescb&refclue=took&w=zeugma

zeugma

1
NOUN:
A construction in which a single word, especially a verb or an adjective, is applied to two or more nouns when its sense is appropriate to only one of them or to both in different ways, as in He took my advice and my wallet.


2. n. use of a word to govern two or more words though appropriate to only one

A zeugma is a literary term for using a word to modify two other words, in two different ways. An example of a zeugma would be, "When she got to my house she was full of anger and cake."

When you use one word to link between two thoughts, you're using a zeugma. Some literary experts distinguish a zeugma from a syllepsis by insisting that in a zeugma, only one of the two thoughts should make literal or grammatical sense. For example, you could use the zeugma, "I lost my keys and my temper." In Greek, zeugma means "a yoking," as in yoking one word to two ideas.

3. : the use of a word to modify or govern two or more words usually in such a manner that it applies to each in a different sense or makes sense with only one (as in “opened the door and her heart to the homeless boy”)
Origin of ZEUGMA
Middle English zeuma, from Medieval Latin, from Latin zeugma, from Greek, literally, joining, from zeugnynai to join; akin to Latin jungere to join — more at yoke
First Known Use: 15th century

4. The act of using a word, particularly an adjective or verb, to apply to more than one noun when its sense is appropriate to only one.

5. a figure of speech in which a word applies to two others in different senses (e.g. John and his driving licence expired last week).

6. a figure of speech in which a single word, usually a verb or adjective, is syntactically related to two or more words, though having a different sense in relation to each (Ex.: The room was not light, but his fingers were)

7. A figure in grammar by which an adjective or verb which agrees with a nearer word, is by way of supplement, referred to another more remote. Thus in Virgil, Hicillius arma, hic currus fuit; where fuit, which agrees directly with currus, is referred also to arma.

8. a rhetorical construction in which one word, usu. an adjective or verb, modifies or governs two or more words, although it makes straightforward logical sense with only one, as in "loud thunder and lightning".

9. the use of a word to modify or govern two or more words when it is appropriate to only one of them or is appropriate to each but in a different way, as in to wage war and peace or On his fishing trip, he caught three trout and a cold.

etc.

[hansberrym]

312. You are joking, right? And you need to re-read Wills' book.

Wills did not even attempt to apply the "zeugma" gambit on the second amendment because it simply doesn't fit. He tried that trick with the PA Minority provision #7. Of course one is left ot wonder why Whitehill would have used a grammatical form fitting for clever repartee in a BOR provision, but then Wills did not bother to explain that point.

[Glenn Vardy]

319. Srawman

Wills did not even......

Strawman.

[Glenn Vardy]

306. The "evidence there is."

A reliance on "ancient phraseology" is not the same thing as insisting on a very narrow meaning that has no support from the founding era and is in fact contradicted by what evidence there is.

House of Representatives, Amendments to the Constitution

17, 20 Aug. 1789Annals 1:749--52, 766--67
<17 Aug.>

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

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

What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late revolution. They used every means in their power to prevent the establishment of an effective militia to the eastward. The Assembly of Massachusetts, seeing the rapid progress that administration were making to divest them of their inherent privileges, endeavored to counteract them by the organization of the militia; but they were always defeated by the influence of the Crown.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<20 Aug.>

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

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

[Glenn Vardy]

307. To "bear arms" = "militia duty."

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

Mr. Gerry ...Now, if we give a discretionary power to exclude those from MILITIA DUTY ("to bear arms") who have religious scruples..."

[jmg257]

308. Mr. Seney — Wished to know what question there was before the committee,

in order to ascertain the point upon which the gentleman was speaking?


Quakers and the like were religiously scrupulous of bearing arms. Period. Bearing arms for military usage. Bearing arms for self-defense. Bearing arms for the killing of game.

Which meant they were useless if compelled to be in a Militia, as they would only do so unarmed.

Mr. Jackson — "Was willing to accommodate; he thought the expression was "No one, religiously scrupulous of bearing arms, shall be compelled to render military service in person, upon paying an equivalent."


This clearly shows they are NOT the same thing, as he & the ratifying conventions used both as distinct and separate phrases to clearly show 2 different points. Clearly rendering military service when one won't bear arms IS possible, but pretty goofy, and so not necessary.

Did he/they say "No one, religiously scrupulous of bearing arms, shall be compelled to do so in person, upon paying an equivalent".?
NO. They instead showed they mean different things, where in this case it is simply worthwhile for the latter to be dependent on the former.

{Though arguing what didn't happen is always tough, you like it, and usually need extra clarification, so I edited to throw in that last bit.}

[Glenn Vardy]

310. How the Framers understood the phrase.

Quakers and the like were religiously scrupulous of bearing arms. Period. Bearing arms for military usage. Bearing arms for self-defense. Bearing arms for the killing of game.

This is where you go wrong. They MAY have been scrupulous of carrying guns for hunting, but that's NOT what the FRAMERS meant by the phrase "bear arms." You're reading what YOU want into it, but THEY'RE not saying it.


"A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms."

Do you think that THEY meant --"religiously scrupulous" of carrying guns-- and they wouldn't be compelled to carry guns for "killing game?"

Mr. Gerry "...Now, if we give a discretionary power to exclude those from MILITIA DUTY (to "bear arms") who have religious scruples..."

That's how THEY understood the phrase "bear arms."

If they were protecting a right to own a gun it would jump out of the page effortlessly, like the militia reading does. You wouldn't NEED to try so hard to read into the debate what they weren't concerned with.

[jmg257]

322. Yes yes...so you keep blatantly asserting. While once again ignoring other uses of the phrase,

by those framers, Jackson & Boudinot in this case, that clearly show otherwise.

I'm really not trying hard at all. Usually one just has to read a little further to find numerous examples of other uses of phrases you say only ever mean one thing. As in this case. As in the state conventions, Pennsylvania Minority, State Declarations etc. etc. etc.

[Glenn Vardy]

325. Blatantly asserting with clear evidence?

Yes yes...so you keep blatantly asserting

"A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person RELIGIOUSLY SCRUPULOUS shall be compelled to BEAR ARMS."

Mr. Gerry "...Now, if we give a discretionary power to exclude those from MILITIA DUTY who have RELIGIOUS SCRUPLES..."

[jmg257]

326. Here we go loop the loop. Already showed distinction of meaning in same debate

By 2 different framers and state conventions. Numerous examples show you are making wrong assertions about a phrase that obviously covers more then one use. Or we can say it does only mean one thing...bear arms simply means to bear arms...for whatever legal reason the bearer so desires. Keep and bear arms means 2 things..to keep AND bear arms for any legal reason the keeper and bearer desires.

No sense arguing more about it, as even one other example shows your assumptions are wrong. And we have plenty. By various different people and entities and documents from the same time.

You can keep posting gerrys comment, and your opinion, and keep saying it the only meaning possible, and you would still be easily shown to be wrong.

[Glenn Vardy]

311. Military context from "bear arms" alone.

Mr. Jackson — "Was willing to accommodate; he thought the expression was "No one, religiously scrupulous of bearing arms, shall be compelled to render military service in person, upon paying an equivalent."


This clearly shows they are NOT the same thing

That's what you want to read into it, but it shows no such thing.

Original draft.
"..compelled to render military service.."

Version presented to the House
"..compelled to bear arms."

They ARE the same thing, despite your blatant assertion that they're not.

The draft that they WERE dabating said that no person who was religiously scrupulous shall be compelled to "bear arms." To those Framers, this phrase had a clear military context without any reference to "rendering military service."

It was sugested that it should say that no person who is religiously scrupulous shall be compelled to "bear arms, upon paying an equivolent, to be established by law." This is CRYSTAL-CLEAR evidence of how THEY understood the phrase without any reference to "rendering military service."

[Euromutt]

316. Does it really need to be pointed out that "right" and "duty" are diametrically opposed?

The fundamental premise of your argument is nonsensical in the extreme: nobody has a right to be called into involuntary service to the state, except in the most egregious of political doublespeak. The part about being "religiously scrupulous about bearing arms" entails that an individual has a right to not be compelled to performed armed service to the state if his religious beliefs prohibit him from bearing arms, but a right to not be forced to bear arms in service of the state is a very distinct concept from the right to bear arms while not in compulsory service to the state.

Moreover, agents of the state do not, by dint of their status, have a right to bear arms in the furtherance of their duties, but a power; call it a prerogative, maybe even a privilege, but it is not a right. Individuals subject to military discipline can't take their weapons out of the armory whenever they feel like it and put them to whatever use strikes their fancy. As agents of the state, their access to and permissible uses of firearms are conditional on approval by the state's apparatus.

[Glenn Vardy]

318. Can't refute that "bear arms" = "militia duty."

To "bear arms" = "militia duty."

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

Mr. Gerry ...Now, if we give a discretionary power to exclude those from MILITIA DUTY ("to bear arms") who have religious scruples..."
------------------------------------------------------------------------

The fundamental premise of your argument is nonsensical in the extreme

But you can't say why.

nobody has a right to be called into involuntary service

Correct, but that's your own strawman. It means nothing. In fact, nothing you said in your post addresses the point I made in my post

The part about being "religiously scrupulous about bearing arms" entails that an individual has a right to not be compelled to performed armed service

The actual words are "compelled to bear arms." But you're right to point out that it means military service.
------------------------------------------

"but no person RELIGIOUSLY SCRUPULOUS shall be compelled to BEAR ARMS."

Mr. Gerry ...Now, if we give a discretionary power to exclude those from MILITIA DUTY who have RELIGIOUS SCRUPLES..."

[Euromutt]

329. No, militia duty is *one possible form* of bearing arms

To quote John Cleese (in the role of a logician discussing a scene from The Holy Grail):

"All wood burns," states Sir Bedivere, "therefore all that burns is wood." This is, of course, bullshit. Universal affirmatives can only be partially converted; for instance, all of Alma Cogan is dead, but only part of the class of dead people is Alma Cogan.

Thus, militia duty may involve bearing arms, but bearing arms is by no means limited to militia duty.

But you can't say why.

Actually, not only can I say why, I actually already did.

For your assertion that "bearing arms" only means in the context of performing militia duty, it would then follow that one does not have right to bear arms, but only an obligation (and even then only in particular circumstances). And it should be superfluous to point out that an obligation and a right are two different things. Thus, "the right of the people to keep and bear arms" cannot refer to militia duty, because militia duty isn't a right, it's, well, a duty, an obligation. QED.

[jmg257]

332. And we have a winner. Very nicely done...so simple and so frigging obvious! nt

[Glenn Vardy]

333. What did Mr. Gerry mean?

militia duty may involve bearing arms, but bearing arms is by no means limited to militia duty.

"A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person RELIGIOUSLY SCRUPULOUS shall be compelled to BEAR ARMS."

Mr. Gerry ...Now, if we give a discretionary power to exclude those from MILITIA DUTY who have RELIGIOUS SCRUPLES..."

[jmg257]

336. That those who can't or won't carry arms don't make good militia members.

Giving a power to the new govt for THEM to delare who has religious scruples and so exclude them from the right to bear arms and from the obligation of militia duty is bad...This could render the militia ineffective, as unarmed militia members would suck, as would having no militia members. Most of the House agreed with him on these points, because this is what those framers passed on to the Senate:

"A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person".

Clearly showing the distinction betweem "bearing arms" and "military service". And that those who won't carry arms for any reason do not need to do military service.

[Euromutt]

350. That you can't force a Quaker to fight

That's the thing about a right: you can choose not to exercise it. Quakers, Mennonites, German Baptist Brethren adherents to the doctrine of Christian pacifism are, by that dint, "religiously scrupulous of bearing arms," at least against other human beings. The exemption from militia duty is because forcing them to perform it would violate their freedom of religion.

Is the idea that bearing arms in the context of militia duty is only one possible form of "bearing arms" too difficult for you to wrap your head around? I really don't know how I can express it any more simply.

[Glenn Vardy]

352. Bear Arms: "serve as a soldier, do military service, fight... wage war."

"A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person RELIGIOUSLY SCRUPULOUS shall be compelled to BEAR ARMS."

Mr. Gerry ...Now, if we give a discretionary power to exclude those from MILITIA DUTY who have RELIGIOUS SCRUPLES..."
----------------------------------------------

Glenn
"What did Mr. Gerry mean (by "bear arms)?

That you can't force a Quaker to fight

So "bear arms" means "fight?"

Bear Arms: "serve as a soldier, do military service, fight... wage war."

Quakers, Mennonites, German Baptist Brethren adherents to the doctrine of Christian pacifism are, by that dint, "religiously scrupulous of bearing arms," at least against other human beings.

Do you mean "carrying guns" against human beings when you say "bearing arms.. against.. human beings?"

[Euromutt]

360. And the word for today (and the past week) is "context"

The verb "to bear" has quite a lot of meanings, most of the related to "carrying" in some manner, and which specific meaning is meant depends very much on the context. In the context pertaining to "bearing arms," the meaning "to give birth to" for "to bear" is inappropriate, for example.

In the context of conscientious objection to militia service, "bearing arms" refers specifically to carrying and using them with intent to inflict harm on other people, yes, because that is what Christian pacifists object to. Again, that's in that particular context. In other contexts, the meaning of "bearing arms" need not be so limited.

Your problem here is that you're fixated on wanting "bearing arms" to mean one specific thing, and that one specific thing only, when in reality it can mean a variety of ways of and purposes for carrying arms. Moreover, as I've repeatedly pointed out (and which you have thus far not seen fit to rebut), it is logically impossible for a right to bear arms to exist only in the context of performing a compulsory service to the state.

[hansberrym]

313. Et tu Boudinot

Mr. Boudinot thought the provision in the clause, or something similar to it, was necessary. Can any dependence, said he, be placed in men who are conscientious in this respect? or what justice can there be in compelling them to bear arms, when, according to their religious principles, they would rather die than use them?


Use "them" what?

[Glenn Vardy]

317. Compelled to kill game?

Mr. Boudinot thought the provision in the clause, or something similar to it, was necessary. Can any dependence, said he, be placed in men who are conscientious in this respect? or what justice can there be in compelling them to bear arms, when, according to their religious principles, they would rather die than use them?


Use "them" what?

Yes, Boudinot is correct when he points out that they'd rather die than use arms. But when he talks about compelling them to "bear arms," he's talking about them being compelled to render military service, not compelled to "use arms" for the purpose of killing game.

[hansberrym]

320. Compelled to use arms, as you said yourself.

Yes, Boudinot is correct when he points out that they'd rather die than use arms. But when he talks about compelling them to "bear arms," he's talking about them being compelled to render military service, not compelled to "use arms" for the purpose of killing game.

The word "them" in the below quote plainly refers back to actual "arms", meaning weapons, not "military services". Boudinot is not using "bear arms" is the idiomatic sense you insist on.

Mr. Boudinot thought the provision in the clause, or something similar to it, was necessary. Can any dependence, said he, be placed in men who are conscientious in this respect? or what justice can there be in compelling them to bear arms, when, according to their religious principles, they would rather die than use them?

[Glenn Vardy]

324. Intentionally distorting my words

Compelled to use arms, as you said yourself

You've completely distorted what I said.

This is what I said:
"But when he talks about compelling them to "bear arms," he's talking about them being compelled to render military service, NOT COMPELLED TO "USE ARMS" for the purpose of killing game."

When Boudinot asks "what justice can there be in compelling them to BEAR ARMS?" he's arguing in favour of keeping the conscientious objector clause. Isn't that clause addressing militia service?

[hansberrym]

328. No, just pointing out the obvious. So obvious you couldn't help but see it.

This is what you said:
Yes, Boudinot is correct when he points out that they'd rather die than use arms. But when he talks about compelling them to "bear arms," he's talking about them being compelled to render military service, not compelled to "use arms" for the purpose of killing game.


When you wrote "Boudinot is correct...than use arms" , you indicated you are quite aware that the word "them" in Boudinot's quote refers back to the word "arms" from his preceeding usage of "bear arms". Boudinot's meaning of "bear arms" therefore is plainly not idiomatic, rather it is the straight forward meaning much like SCOTUS in US V. Miller(see post #268).


Mr. Boudinot thought the provision in the clause, or something similar to it, was necessary. Can any dependence, said he, be placed in men who are conscientious in this respect? or what justice can there be in compelling them to bear arms, when, according to their religious principles, they would rather die than use them? (my emphasis)


Do you now deny that the word "them" refers back to the word "arms" in the above Boudinot quote?
Do you deny that "arms" then must mean actual weapons rather than being one half of a figurative expression?

[Glenn Vardy]

331. Strained

This is what you said:
"Yes, Boudinot is correct when he points out that they'd rather die than use arms. But when he talks about compelling them to "bear arms," he's talking about them being compelled to render military service, not compelled to "use arms" for the purpose of killing game."

Yes, I said that. Do you dissagree with anything I said there, and if so, what?

When you wrote "Boudinot is correct...than use arms" , you indicated you are quite aware that the word "them" in Boudinot's quote refers back to the word "arms" from his preceeding usage of "bear arms".

No, Boudinot is using a zeugma.

http://www.onelook.com/?loc=rescb&refclue=took&w=zeugma

zeugma

1
NOUN:
A construction in which a single word, especially a verb or an adjective, is applied to two or more nouns when its sense is appropriate to only one of them or to both in different ways, as in He took my advice and my wallet.


2. n. use of a word to govern two or more words though appropriate to only one

A zeugma is a literary term for using a word to modify two other words, in two different ways. An example of a zeugma would be, "When she got to my house she was full of anger and cake."

When you use one word to link between two thoughts, you're using a zeugma. Some literary experts distinguish a zeugma from a syllepsis by insisting that in a zeugma, only one of the two thoughts should make literal or grammatical sense. For example, you could use the zeugma, "I lost my keys and my temper." In Greek, zeugma means "a yoking," as in yoking one word to two ideas.

3. : the use of a word to modify or govern two or more words usually in such a manner that it applies to each in a different sense or makes sense with only one (as in “opened the door and her heart to the homeless boy”)
Origin of ZEUGMA
Middle English zeuma, from Medieval Latin, from Latin zeugma, from Greek, literally, joining, from zeugnynai to join; akin to Latin jungere to join — more at yoke
First Known Use: 15th century

4. The act of using a word, particularly an adjective or verb, to apply to more than one noun when its sense is appropriate to only one.

5. a figure of speech in which a word applies to two others in different senses (e.g. John and his driving licence expired last week).

6. a figure of speech in which a single word, usually a verb or adjective, is syntactically related to two or more words, though having a different sense in relation to each (Ex.: The room was not light, but his fingers were)

7. A figure in grammar by which an adjective or verb which agrees with a nearer word, is by way of supplement, referred to another more remote. Thus in Virgil, Hicillius arma, hic currus fuit; where fuit, which agrees directly with currus, is referred also to arma.

8. a rhetorical construction in which one word, usu. an adjective or verb, modifies or governs two or more words, although it makes straightforward logical sense with only one, as in "loud thunder and lightning".

9. the use of a word to modify or govern two or more words when it is appropriate to only one of them or is appropriate to each but in a different way, as in to wage war and peace or On his fishing trip, he caught three trout and a cold.

etc.

Do you deny that "arms" then must mean actual weapons rather than being one half of a figurative expression?

When the word is used in the phrase "bear arms?" Yes.
When he uses the word "them (meaning arms?" No. See "zeugma."

From the whole of the First Congress debate, you've got the word "them."
From Cruikshank, you've got the word "it."

I think the word "strained" applies to your argument.

[hansberrym]

335. Indeed! What parts of speech are "arms" and "them"?

And what "one word" is linking or applies to these two nouns?

Boudinot does not use "bear" in two different ways, instead he says "use" the second time which tells us the meaning of "bear" the first time he said it.

You don't even have a Zeugma, all you have is poorly thought out fig leaf.


Mr. Boudinot thought the provision in the clause, or something similar to it, was necessary. Can any dependence, said he, be placed in men who are conscientious in this respect? or what justice can there be in compelling them to bear arms, when, according to their religious principles, they would rather die than use them?

[Glenn Vardy]

337. Side-stepping when proven wrong.

Enough. You're avoiding every question I ask.

I said:
"Yes, Boudinot is correct when he points out that they'd rather die than use arms. But when he talks about compelling them to "bear arms," he's talking about them being compelled to render military service, not compelled to "use arms" for the purpose of killing game."

Then I asked:
"Do you dissagree with anything I said there, and if so, what?"

What's your answer?

Boudinot does not use "bear" in two different ways, instead he says "use" the second time which tells us the meaning of "bear" the first time he said it.

You don't even have a Zeugma

This is what you originally said:
"you indicated you are quite aware that the word "them" in Boudinot's quote refers back to the word "arms" from his preceeding usage of "bear arms"."

Why are you now side-stepping onto the words "bear" and "use?"
By saying that the TWO words "bear" and "use" aren't a zeugma, you're not defeating my argument, you're defeating your own strawman.


Zeugma:

1
NOUN:
A construction in which a single word, especially a verb or an adjective, is applied to two or more nouns when its sense is appropriate to only one of them or to both in different ways, as in He took my advice and my wallet.


2. n. use of a word to govern two or more words though appropriate to only one

A zeugma is a literary term for using a word to modify two other words, in two different ways. An example of a zeugma would be, "When she got to my house she was full of anger and cake."

When you use one word to link between two thoughts, you're using a zeugma. Some literary experts distinguish a zeugma from a syllepsis by insisting that in a zeugma, only one of the two thoughts should make literal or grammatical sense. For example, you could use the zeugma, "I lost my keys and my temper." In Greek, zeugma means "a yoking," as in yoking one word to two ideas.

3. : the use of a word to modify or govern two or more words usually in such a manner that it applies to each in a different sense or makes sense with only one (as in “opened the door and her heart to the homeless boy”)
Origin of ZEUGMA
Middle English zeuma, from Medieval Latin, from Latin zeugma, from Greek, literally, joining, from zeugnynai to join; akin to Latin jungere to join — more at yoke
First Known Use: 15th century

4. The act of using a word, particularly an adjective or verb, to apply to more than one noun when its sense is appropriate to only one.

5. a figure of speech in which a word applies to two others in different senses (e.g. John and his driving licence expired last week).

6. a figure of speech in which a single word, usually a verb or adjective, is syntactically related to two or more words, though having a different sense in relation to each (Ex.: The room was not light, but his fingers were)

7. A figure in grammar by which an adjective or verb which agrees with a nearer word, is by way of supplement, referred to another more remote. Thus in Virgil, Hicillius arma, hic currus fuit; where fuit, which agrees directly with currus, is referred also to arma.

8. a rhetorical construction in which one word, usu. an adjective or verb, modifies or governs two or more words, although it makes straightforward logical sense with only one, as in "loud thunder and lightning".

9. the use of a word to modify or govern two or more words when it is appropriate to only one of them or is appropriate to each but in a different way, as in to wage war and peace or On his fishing trip, he caught three trout and a cold.

etc.

[hansberrym]

339. Why? Because I read, but you

apparently haven't even read the definition of Zuegma that you posted.


What "one word" is linking or applies to these ("arms" and "them") two nouns?


Answer: There is none, the word "bear" applies only to "arms", it doesn't apply to "them" as Boudinot says "use them" and the verb there is "use".

[Glenn Vardy]

341. You've got the word "them" from the whole First Congress debate

"Mr. Boudinot thought the provision in the clause, or something similar to it, was necessary. Can any dependence, said he, be placed in men who are conscientious in this respect? or what justice can there be in compelling them to bear arms, when, according to their religious principles, they would rather die than use them?"
------------------------------------------------

hansberrym
"The word "them".. refers back to actual "arms", meaning weapons, not "military services"."

Glenn
"When Boudinot asks "what justice can there be in compelling them to BEAR ARMS?" he's arguing in favour of keeping the conscientious objector clause. Isn't that clause addressing militia service?"
----------------------------------------------

Why won't you answer that question?

From the whole of the First Congress debate on an amendment that YOU claim protects something as simple as the right to own a gun, all you can point to as evidence to support you is the word "them."

[hansberrym]

346. That's better than what you've got, which is nothing

to support your exclusively idomatic meaning argument for "bear arms". The quote from Boudinot is plainly not idomatic, nor does it contain a Zeugma, but you have known this all along.


"but no person religiously scrupulous shall be compelled to BEAR ARMS"

=====

Mr. Boudinot thought the provision in the clause, or something similar to it, was necessary. Can any dependence, said he, be placed in men who are conscientious in this respect? or what justice can there be in compelling them to bear arms, when, according to their religious principles, they would rather die than use them?

=====

Yes, Boudinot is correct when he points out that they'd rather die than use arms. But when he talks about compelling them to "bear arms," he's talking about them being compelled to render military service, not compelled to "use arms" for the purpose of killing game.
(This is an obvious false dichotomy -as though the only possible ways to "use arms" were militia duty or killing game. See my post #96, I have cut and pasted it many time for you already.)

"When Boudinot asks "what justice can there be in compelling them to BEAR ARMS?" he's arguing in favour of keeping the conscientious objector clause. Isn't that clause addressing militia service?"

Gee, maybe you're on to something Glenn, I don't think any 2A researcher has ever before even considered that Boudinot was in favor of the CO provision or that that the CO provision had anything to do with military service. But then what we were actually arguing is the meaning of "bear arms". You insist those words are an idiom meaning "military service", but Boudinot's quote is plainly not idiomatic, so where does that leave you?

I'll leave you with this: The right of the people to keep and "do military service" make no sense.

[Glenn Vardy]

348. Straight question

Glenn
"When Boudinot asks "what justice can there be in compelling them to BEAR ARMS?" he's arguing in favour of keeping the conscientious objector clause. Isn't that clause addressing militia service?"

hansberrym:
"Gee, maybe you're on to something Glenn, I don't think any 2A researcher has ever before even considered that Boudinot was in favor of the CO provision or that that the CO provision had anything to do with military service."

Reply: Now, that's a long-winded, sarcastic admission that the phrase "bear arms" means "military service." Of course, because it's a long-winded sarcastic answer, hansberrym has left wriggle-room to deny admitting anything in later posts.)
---------------------------------------------------

Glenn
"But when he talks about compelling them to "bear arms," he's talking about them being compelled to render military service, not compelled to "use arms" for the purpose of killing game."

hansberrym:
"..as though the only possible ways to "use arms" were militia duty.."

Reply: Your statement is correct. But you've conveniently changed the actual phrase "bear arms," into "use arms." And we're not concerned with "possible ways," we're concerned with what HE understands the phrase "bear arms" to mean.

Straight question: When he asks "what justice can there be in compelling them to BEAR ARMS," does he mean compelling them to render military service? Straight answer, please.

[hansberrym]

349. No.

Straight question: When he asks "what justice can there be in compelling them to BEAR ARMS," does he mean compelling them to render military service? Straight answer, please.


The straight answer is No. And how do I know this? By reading what Boudinot says next: "when, according to their religious principles,they would rather die than use them." The word "them" refering back to "arms" which indicates that Boudinot's meaning of "bear arms" is not an idiom (and thus not "military service"). The word "arms" there is not one half of a figurative expression, but instead "arms" there is akin to weapons.

Wash/rinse/repeat. GO back to post 317 and read the thread again and again, it won't come out any differntly. Boudinot's usage of "bear arms" is not an idiom, nor a Zeugma.

Mr. Boudinot thought the provision in the clause, or something similar to it, was necessary. Can any dependence, said he, be placed in men who are conscientious in this respect? or what justice can there be in compelling them to bear arms, when, according to their religious principles, they would rather die than use them?

[Glenn Vardy]

351. Compelling citizens to carry guns?

Mr. Boudinot "thought the provision in the clause, or something similar to it, was necessary. Can any dependence, said he, be placed in men who are conscientious in this respect? or what justice can there be in compelling them to bear arms, when, according to their religious principles, they would rather die than use them?"
----------------------------------------------

Glenn
"When he asks "what justice can there be in compelling them to BEAR ARMS," does he mean compelling them to render military service?"

hansberrym
"No. And how do I know this? By reading what Boudinot says next: "when, according to their religious principles,they would rather die than use them." The word "them" refering back to "arms" which indicates that Boudinot's meaning of "bear arms" is not an idiom (and thus not "military service"). The word "arms" there is not one half of a figurative expression, but instead "arms" there is akin to weapons."
------------------------------------------------

Don't you think it's possible that the language he used wasn't textbook perfect?

For the sake of argument, presume for a moment that this is what he meant:
"what justice can there be in compelling them to serve in the militia, when, according to their religious principles, they would rather die than use arms?"

You tell me how it's possible for him to have meant the same thing BUT using "bear arms" as an idiom meaning "serve in the militia."

Again, for the sake of argument, let's presume that this is what he meant:
"what justice can there be in compelling them to carry arms, when, according to their religious principles, they would rather die than use them?"

Your problem now is that the purpose of the conscientious objector clause would be to excuse them from exercising a right to carry guns unconnected to militia service.

Boudinot. "Now, by striking out the clause, people may be led to believe that there is an intention in the General Government to compel all its citizens to bear arms."

Did he mean that people may think the government was going to compel all citizens to "carry guns" or to "serve in the militia" without the conscientious objector clause?

[hansberrym]

353. Same answers as before.

Don't you think it's possible that the language he used wasn't textbook perfect?

For the sake of argument, presume for a moment that this is what he meant:
"what justice can there be in compelling them to serve in the militia, when, according to their religious principles, they would rather die than use arms?"

You tell me how it's possible for him to have meant the same thing BUT using "bear arms" as an idiom meaning "serve in the militia."

Again, for the sake of argument, let's presume that this is what he meant:
"what justice can there be in compelling them to carry arms, when, according to their religious principles, they would rather die than use them?"

Assumption of error is the weakest of arguments. Boudinot might have said a lot of things, but he said what he said.

Do you also assume the RKBA language of 2A is an error?(the right of the people to keep and "do militia service" makes no sense! Two weeks in and you do not have a plausible explanation for that text in light of your insistence that "bear arms" = "do militia service")
Is the statement of James Wilson regarding the PA right to bear arms provision also an error?
Were the early state court decisions also errors?
Was Tenche Coxe's non-idiomatic reading of the RKBA of the 2A draft also an error?
My point is that you are going to have to assume a lot of errors in order to "prove" your argument.

=======

In response to your hypothetical restatements: See my posts 66 and 96 which explain what I believe "bear arms" means. As we have been at this for about 2 weeks now, it is exceedignly lame for you to attempt the same switcheroo(my meaning for the literal meaning) and false dichotomy(as if the two meanings you present are the only two possible) as before. I have called you out repeatedly on this and yet you go right back to it as if the outcome will be different. Reread my post 181.

========

You don't need anyone else to accompany you on your merry-go-round, just ask yourself the same questions over and over, then find my responses(or someone else's) and reread them. The result will always be the same, but if you expect it to come out differently, that is not a good sign.

[Glenn Vardy]

354. Avoiding the content of my posts?

In my previous post, I asked:
"Don't you think it's possible that the language he used wasn't textbook perfect?"

To illustrate the point, I then said:
"For the sake of argument, presume for a moment that this is what he meant:

"what justice can there be in compelling them to serve in the militia, when, according to their religious principles, they would rather die than use arms?"

You tell me how it's possible for him to have meant the same thing BUT using "bear arms" as an idiom meaning "serve in the militia."

hansberrym replied:
"Assumption of error is the weakest of arguments."

Reply: If you can't tell me what I asked with time to think about it, why do you expect Boudinot to have BETTER expressed THAT meaning in the heat of debate?
-----------------------------------------------------------

In my previous post, I said:
"Again, for the sake of argument, let's presume that this is what he meant:
"what justice can there be in compelling them to carry arms, when, according to their religious principles, they would rather die than use them?"

"Your problem now is that the purpose of the conscientious objector clause would be to excuse them from exercising a right to carry guns unconnected to militia service."

hansberrym didn't even attempt to address that point.
--------------------------------------------------------

In my previous post, I asked:
Boudinot. "Now, by striking out the clause, people may be led to believe that there is an intention in the General Government to compel all its citizens to bear arms."

Did he mean that people may think the government was going to compel all citizens to "carry guns" or to "serve in the militia" without the conscientious objector clause?"

Again, hansberrym didn't even attempt to answer that question.

[jmg257]

355. The answer to the last question is..."yes".

"Did he mean that people may think the government was going to compel all citizens to "carry guns" or to "serve in the militia" without the conscientious objector clause?"

Yep. But since he said "bear arms" which is the same as "carry" or "use" arms, I'll go with choice #1.

Don't matter really, as any possible confusion was done away with when most of the house agreed that in order to be quite clear about the differences; this original clause:

”but no person religiously scrupulous shall be compelled to bear arms."

Became this:

"No one, religiously scrupulous of bearing arms, shall be compelled to render military service, in person"



"the purpose of the conscientious objector clause would be to excuse them from exercising a right to carry guns unconnected to militia service."

Yep...they wouldn't be able to enjoy the right to keep and carry/use guns for any lawful purpose, if the govt said they had scruples.

Not a good thing, as Mr. Gerry pointed out:
"They can declare who are those religiously scrupulous, and prevent them from bearing arms. What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary."

They could - they could arbitrarily disarm the people, and they could disarm the Militia and make them ineffectual.

HEY!!! Did Gerry just say "prevent them from bearing arms" AND "take such measures with respect to a militia" in a way as to show once again how clearly distint the 2 phrases are?? Of course he did!!! So, the govt could prevent the people from bearing arms, and the govt could also take similiar measures with respect to a militia. I agree with him - both things are bad. {Pretty scary...thank God for the 2nd which secures the right to keep and bear arms for any lawful purpose!}



"what justice can there be in compelling them to serve in the militia, when, according to their religious principles, they would rather die than use arms?"

Makes sense, as militiamen that would rather die then carry guns are real liabilities, including to themselves. Liabilities, and ineffective…
As Boudinot observed:
"In forming a militia, an effectual defence ought to be calculated, and no characters of this religious description ought to be compelled to take up arms. ("they would rather die than use them").


"You tell me how it's possible for Boudinot to have meant the same thing BUT using "bear arms" as an idiom meaning "serve in the militia."

The answer is...4?!?
You are on your own here...can't even decipher this question.

[Glenn Vardy]

356. Bzzzzzzt..... Is the wrong answer.

Glenn:
"Boudinot. "Now, by striking out the clause, people may be led to believe that there is an intention in the General Government to compel all its citizens to bear arms."
Did he mean that people may think the government was going to compel all citizens to "carry guns" or to "serve in the militia" without the conscientious objector clause?"

jmg257:
"I'll go with choice #1."
----------------------------------------

Ok, let's have a look at what the draft would have looked like without the objector clause:

"A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed."

Is there anything here making it compulsory for everyone to carry guns? Why would Boudinot think it may lead people to believe it does make carrying guns compulsary?

If the conscientious objector clause means what you claim it means, it's the most crazy conscientious objector clause that has EVER been written.

You guys have been denying the obvious for so long that you've lost your grip on reality. You cling to silly things, like the word "them" in the debate, as thought that word erases the COMPLETE military context of the debate. You think that the 0.1% of the evidence you have (through distortion) is enough to shed doubt on the exclusive military context. If the right protected was for all individuals to carry guns, per se, you wouldn't BE in the position of trying to shed doubt on the exclusive military context.

[jmg257]

357. You'll have to ask him then. As I see nothing in the phrase you ended up with

Or the original phrase for that matter, that compels anyone to do anything.

Is there anything there that compels anyone to serve in the military?

What is so 'compelling' about a RIGHT to keep and bear arms? Why would anyone think a right is compulsory?

So...must be it's the 'well-regulated militia composed of the people....the best security' observation that has him worried? Would people read that and feel service was mandatory for all the people? Likely, right? Especially since many people were already obligated to be in the Militia? Which of course has little to do with the RIGHT to keep and bear arms...other then the threat to liberty and obvious futility of having unarmed militia, as Gerry pointed out. So those compelled to be in the Militia would of course also be compelled to keep and bear arms (which they were). Not good for those who won't use them, as Boudinot pointed out.


The objector clause is easy and makes great sense... Those who won't use guns won't be compelled to be in the military. Not crazy at all.


I'm in the position of trying to figure out why you think a phrase used numerous times by others, including the framers, state conventions, members of 1st Congress, etc. that clearly show other meanings - only has 1 in THIS instance. And not just that, but even in the final House version of the objector clause you find so confusing, it is quite clearly shown there are distinct meanings for "bear arms" and "military service". You also choose to ignore the rulings of the SCOTUS that confirm the security of the right to keep and bear arms for any lawful purpose.

Something is crazy around here, and it ain't the objector clause!

[Glenn Vardy]

359. "Be in the military? THAT'S crazy.

Glenn:
"Boudinot. "Now, by striking out the clause, people may be led to believe that there is an intention in the General Government to compel all its citizens to bear arms."
Did he mean that people may think the government was going to compel all citizens to "carry guns" or to "serve in the militia" without the conscientious objector clause?"

jmg257:
"I'll go with choice #1."

Glenn:
"Ok, let's have a look at what the draft would have looked like without the objector clause:

"A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed."

Is there anything here making it compulsory for everyone to carry guns? Why would Boudinot think it may lead people to believe it does make carrying guns compulsory?"

jmg257:
"You'll have to ask him... I see nothing... that compels anyone to do anything."

(Reply: But without the objector clause, HE thought that people may believe that serving in a "well regulated militia" would be compulsory for conscientious objectors. THAT'S what being compelled "to bear arms" meant TO HIM. Why do you deny the obvious fact?)

jmg257:
"So...must be it's the 'well-regulated militia composed of the people....the best security' observation that has him worried?"

(Reply: RUBBISH! He was ONLY worried about the conscientious objector clause being struck out.)

jmg257:
"The objector clause is easy and makes great sense... Those who won't use guns won't be compelled to be in the military."

Reply: "Be in the military?" Don't you mean "SERVE in the militia?" And don't forget, the objector clause read: "compelled to BEAR ARMS."

[jmg257]

358. "You guys have been denying the obvious for so long". Says the guy

who chooses to simply ignore the numerous times his 'exclusive phrase' was used where it clearly shows it means something else.

The guy who can read the final House version of the objector clause where it quite clearly shows there are distinct meanings for "bear arms" and "military service", and doesn't see it.

The same guy who chooses to ignore the rulings of the SCOTUS that confirm the 2nd's security of the right to keep and bear arms for any lawful purpose.

The one who doesn't see what nonsense it is to think that the gentlemen who wrote and/or ratified the article...who just fought a revolution for their liberties, who thought self-defense a natural right, who themselves or their fellow citizens live on the frontier, would purposely leave their own right to arms unsecured.

One who sees nothing wrong with the idiotic notion that somehow the Militia was responsible for the armed defense of individuals.

One who can't distinguish between a right to bear arms and an obligation to perform militia service.


Well, one thing is obvious I won't deny, and that is how wrong you are. Even that .1% of the massive amount of evidence shows you are 100% wrong.

And with that, I bid you 'Adios!'. Have fun, keep it real, and don't ever change...we need the laughs!

Cheers!

[Glenn Vardy]

361. 0.1% of evidence proves me 100% wrong?

Says the guy who chooses to simply ignore the numerous times his 'exclusive phrase' was used where it clearly shows it means something else.

Well, we were talking about what those congressmen considered "bear arm" to mean in the Second Amendment debate. You're now side-stepping onto uses of the phrase elswhere. There was a use of the phrase "bear arms" in a hastily written proposal that wasn't even debated by the convention that referred to the purpose of the defence of themselves, the State, the United States, and for "killing game." Were there any gaming laws from that period (which make no reference to the defence of the State or United States) which used the phrase "bear arms?" This use is an anomaly. Should we believe from this that it was a traditionally held view that to "bear arms" meant to "kill game?"

Says the guy who can read the final House version of the objector clause where it quite clearly shows there are distinct meanings for "bear arms" and "military service", and doesn't see it.

Says the guy who was forced to concede that "bear arms" means "be in the military," but doesn't see that to be "in the military" is to "SERVE in the militia."

The same guy who chooses to ignore the rulings of the SCOTUS that....

....use the word "it" while brushing aside the Second Amendment? Wow. As I said, bearing arms for the security of a free State is a lawful purpose. "It" means the right to bear arms, period.

The same guy who sees nothing wrong with the idiotic notion that somehow the Militia was responsible for the armed defense of individuals.

Are you referring to the State provision securing the right of "every member of society" "to BE protected" and which said that they were "bound" to contribute "to THE PROTECTION?" I proved that the defence of "themselves" deals with the common defence, not self defence.

Says the guy who can't distinguish between a right to bear arms and an obligation to perform militia service.

From which phrase are YOU getting "military service?"

0.1%.. of evidence shows you are 100% wrong.

Should we accept the 0.1% or the 99.9%?
And your 0.1% is only achieved throught distortion.

Why are you in this position IF the Second Amendment protects something as simple as a right to own guns?

[Glenn Vardy]

362. Using arms for private purposes

Scalia:
"Justice Stevens places great weight on James Madison's inclusion of a conscientious-objector clause in his original draft of the Second Amendment: "but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person." He argues that this clause establishes that the drafters of the Second Amendment intended "bear Arms" to refer only to military service... what Justice Stevens would conclude from the deleted provision does not follow... Quakers opposed the use of arms not just for militia service, but for any violent purpose whatsoever.."
-----------------------------------------------

So, according to Scalia, the objector clause is dealing with carrying guns for purposes other than militia service.
-----------------------
"The House again resolved itself into a committee, Mr. Boudinot in the chair, on the proposed amendments to the constitution. The third clause of the fourth proposition in the report was taken into consideration, being as follows: "A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms."

Mr. Jackson did not expect that all the people of the United States would turn Quakers or Moravians; consequently, one part would have to defend the other in case of invasion. Now this, in his opinion, was unjust, unless the constitution secured an equivalent: for this reason he moved to amend the clause, by inserting at the end of it, "upon paying an equivalent, to be established by law."
----------------------
That would give us:
"A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms upon paying an equivalent, to be established by law."

Now, if Scalia is right, that payment wouldn't have been to get excused from militia service, because "Quakers opposed the use of arms not just for militia service." If Scalia is right, the payment would have been to get excused from using arms for private purposes.

[Glenn Vardy]

227. Your assertions don't even make sense

Glenn
"The only concern that was raised (on several occasions) was that Congress had the power to "disarm" the "MILITIA" through neglect, not by confiscating guns."

Surf Fishing Guru
"No,..."

(After that denial, is Surf Fishing Guru now going to show where the concern raised was that Congress had the power to confiscate the guns of all individuals? No.

Surf Fishing Guru, cont'
"....the danger is that Congress had plenary authority to declare who shall constitute the militia and that is why the conscientious objector language was discarded; it was feared that it could be used as a handle to use Article I, § 8 militia powers to disarm the people.
------------------------------------

THEY spoke of the "militia" being disarmed. YOU'VE now made a statement about "the people" being disarmed.

When YOU speak of "the people" being disarmed, do you mean ALL "individuals" having their privately owned guns confiscated? If so, then what you've just said is: "Congress had the power to declare who shall render military service. The conscientious objector clause was removed to take away the power in Article 1, Section 8. to confiscate the privately owned guns of ALL individuals."

Your blatant assertions don't make sense.

[Surf Fishing Guru]

238. Oh well . . .

THEY spoke of the "militia" being disarmed. YOU'VE now made a statement about "the people" being disarmed.

I wasn't going to "go there" because I don't think you are capable of understanding it but those terms were used interchangeably by the framers. Read Federalist 29 . . . To the framers the people/citizens/militia were identical entities.

In 29 we see that "all the militia of the United States" is synonymous with, "the great body of the yeomanry, and of the other classes of the citizens," and "the people" and "the people at large" and "the whole nation" and "our sons, our brothers, our neighbors, our fellow-citizens". Your profound ignorance of the general militia concept and how the framers considered the militia in society force you into your incorrect partitioned, segregated, discriminatory view.

A real interest in the founding principles would relieve you of your incorrect position. Remember what the real debate was back then that began this experiment in self government. It was the philosophical clash between the unquestionable divine right of a monarch to rule arbitrarily versus the people establishing a government, created to protect their inherent and inalienable rights . . . Read Locke and Sidney and while you are at it read the absolutists Bodin and Filmer too. Knowing the philosophies of those writers the framers dismissed as instructional in establishing this republic would help identify those incorrect positions you hold, at least as we are discussing the COTUS. Your interpretation of the 2nd aligns with Bodin more than Locke, Filmer more than Sidney . . . In other words, your position is at odds with everything the founders/framers embraced and can not be supported by the Constitution they established (your cherry picked snippets notwithstanding).

what you've just said is: "Congress had the power to declare who shall render military service. The conscientious objector clause was removed to take away the power in Article 1, Section 8. to confiscate the privately owned guns of ALL individuals."

I'll explain it further . . . The placing of exclusionary language into a provision securing a right (exception of power) to bear arms is a dangerous thing because the Congress possesses the exclusive power to declare who shall constitute the organized militia. That legitimate power could be argued to extend to the objector exclusion; that instead of binding government from compelling a person to bear arms it is misapplied instead to restricting the right from all those that the government declares comprises that class.

The fear was all about avoiding giving "handles" for "constructive powers". A clause intended to protect the conscience of Quaker pacifists could be misconstructed to disarm a wide swath of the citizenry. All one needs to do is examine what has occurred to the terms "well Regulated" or "free state'" or even "general welfare" for that matter to understand the fear.

--------------------------

This storm has given me the time to waste with you but I have reached my threshold of idiocy and ignorance for the foreseeable future. I must abandon this discussion for I have a job and interests beyond this tedious, pointless and valueless discussion that you seem to have unlimited time to devote.

Someday I hope you finally realize you have been promoting a theory that was dead before it began. Is there a logical reason that you can think of why all gun control is written under the commerce clause but defended with theories about the militia? If the power to regulate the personal arms of the private citizen is justified by militia powers why not write the laws under those clauses of the Constitution?

They can't because those clauses are dead.

Congress killed them in 1903.

State militia powers were effectively extinguished before that (inexplicably if you are correct, without a single appeal to the 2nd to repel that federal overstepping of authority)

Your position is smoke and mirrors without any constitutional support and not a shred of evidence that it ever existed. It seems obvious to me that anyone supporting the validity of these collective/state/militia right theories should be able to demonstrate the breadth of militia authority the states have preserved by claiming this supposed 2nd Amendment protection. You can't do that because such an immunity does not exist

These alternate (and always evolving) collective/state/militia right theories are but a last-ditch grasp at straws attempt to sustain indefensible laws.

Be happy, your deception worked for 70 years to dismiss the individual right interpretation but now your position is on life support, it is brain dead with no signs of higher order intelligence. The plug will be pulled by SCOTUS soon enough.

Buh-bye

[Glenn Vardy]

240. Want to backpedal?

I wasn't going to "go there" because I don't think you are capable of understanding it but those terms ("militia" and "the people") were used interchangeably by the framers.

"..the right of the militia to keep and bear arms, shall not be infringed."

[Glenn Vardy]

243. Historical record versus guess based on philosophy

..principles.. philosophical.. Locke... Sidney.. Bodin... Filmer.. philosophies... founders/framers embraced

I take it you can't show, from the constitutional debates, a single example of the concern being raised that Congress had the power to confiscate the private guns of individuals?

I have no doubt that the Founders also believed in individual rights, which is the ONLY point you made in your long post. But your deliberate mistake is to claim that ALL rights that those men believed in and protected MUST have been individual rights. The historical RECORD supports me. What you think the Second Amendment protects is based on your own wild GUESS based on philosophy.

[Glenn Vardy]

244. Well regulated

"If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions."

Hamilton, The Federalist 29, January 10, 1788

The only purpose this "primary source" served in your post was padding. But it shows that a "well regulated militia" is "under the regulation" of a government body. It's a militia regulated by law, and not, as some claim, any armed group that's "functioning properly."

[Surf Fishing Guru]

140. "bear arms" does denote use in confrontation, beyond personal defense . . .

And that is perfectly in line with the insurrectionist interpretation of the 2nd which is based on the dangers of a standing army to the liberties of the citizen by being the tool of oppression by a tyrannical government.

Madison offered his ratios* of the largest standing army a nation could support and that was 1% of the total number of souls in the country.

This ratio Madison said would amount to 30,000 men (in 1787). Madison said that such a force represents 1/25th the number of citizens able to bear arms and about 1/20th the number of citizens with arms in their hands.

Madison envisioned the standing army being outnumbered ("opposed" was the word he used) by armed citizens 17-20 to 1 . . . In modern times we have bettered Madison's ratios a bit. If the larger estimates of gun owners are accepted (75,000,000+), we have extended that advantage to 25 to 1.

Certainly the citizens rising up and opposing the national government's army with violence can be defined, even by you, as those citizens bearing arms no???? Well, that's what is secured and as much as you will want to deny it, your definition proves the point. Bearing arms has a very specific meaning and that is an inseparable component of the people's right to arms.

Thank you!

*

• "The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops."
  
  Federalist 46

Now at this point you are saying, yeah but, united and conducted by government!!!!

But is that true? The principle at work certainly doesn't demand such loyalty and trust and surrender . . . What if it is a state government that is violating the rights of the citizen or if the state government structure of militia discipline is non-existent? Does that demand that the citizens take no action and offer no resistance to tyranny?

NO!

You use the original, never surrendered, undeniable, inviolate right of self defense (which is paramount to all positive forms of government) and bear arms against the usurpers whoever and wherever they are!

• "If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. "
  
  Federalist 28

[Glenn Vardy]

142. "Able" to "carry guns?"

"The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops." - James Madison, Federalist #46.

The citizens with arms are the State militia with officers appointed by the State.

Why is the number of souls "able" to "bear arms" a quarter of the "whole number of souls?" Did Madison think that only a quarter of them were anle to pick up a gun? No! "Able to bear arms" means "eligible to render militia service."

[Surf Fishing Guru]

143. Is this what you are reduced to arguing?

The citizens with arms are the State militia with officers appointed by the State.

Perhaps they were members, it is immaterial to the larger discussion as the ownership of a gun was never predicated on one's militia attachment even if the only reason for a person's acquisition of a firearm was to meet his militia obligations. The firearm, no matter whatthe reason for purchase, was his property and was not under any ownership conditioning.

Why is the number of souls "able" to "bear arms" a quarter of the "whole number of souls?" Did Madison think that only a quarter of them were anle to pick up a gun? No! "Able to bear arms" means "eligible to render militia service."

The criteria is capable of bearing arms. That also means that one is capable of working in concert, taking orders, following military discipline, fighting as a cohesive unit. Children, women, the infirm and elderly were not considered to meet that criteria and have never been included in the warrior class. Blacks were excluded as well along with most government officials and other civil servants.

As far as those who were legally liable to perform militia duty, the Militia Act of 1792 required that:

• "each and every free able-bodied white male citizen . . . who is or shall be of age of eighteen years, and under the age of forty-five years . . . shall severally and respectively be enrolled in the militia . . . shall, within six months . . . provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service . . . "

Presently US Code calls out "all able-bodied males at least 17 years of age and . . . under 45 years of age" as the "unorganized militia" of the United States.

I would venture a guess that with the excluded classes those actually eligible and liable to perform militia duty when Madison spoke was considerably smaller than 25% of the total population. Heck, right now 17 - 44 y.o. men comprise under 20%! (2007 population: 301,579,895, males aged 18 - 44: 57,318,427. 57,318,427 / 301,579,895 = .1900)

The thought that militia enrollment / attachment / membership was a prerequisite for the simple ownership of a firearm is not supported anywhere in the philosophical, historical or legal record of the United States. If such were the case the record would be bulging with military court orders compelling the disarmament of men attaining 46 years and aging out of their militia obligation. Just ponder that for a moment LOL.

[Glenn Vardy]

147. Make your mind up

Perhaps they were members, it is immaterial to the larger discussion as the ownership of a gun was never predicated on one's militia attachment...

Look, in YOUR post, you said that citizens bearing arms (ALL citizens carrying guns, as YOU meant it) is what's secured. You then posted the Madison quote as though it proved your point. Now that I've shown that the quote actually proves you WRONG, it's "immaterial" to the "ownership of a gun." That bit's true.

[Surf Fishing Guru]

149. Quote please . . .

Quote my contradiction please.

I am actually agreeing with your basic premise that "bearing arms" has a specific meaning. My position is that the 2nd Amendment is the ultimate confirmation of the people's right to consent to being governed BY SECURING THE PEOPLE'S RIGHT TO RESCIND THAT CONSENT.

Bearing arms does mean using weapons in confrontation and the ultimate reason why the peoples right to arms was secured from government action is to throw off said government BY BEARING ARMS.

[Glenn Vardy]

165. Bottom line

The bottom line is: You posted a quote from James Madison using the phrase "bear arms" to mean "serve in the militia."

[Surf Fishing Guru]

167. Everyone . . .

capable of bearing arms was considered the militia.

The organized militia, the Article I Sec 8, cl 16 militia, did not exist when that was written. The Federalist series was written to promote the ratification of the Constitution, to allay fears about the powers to be granted to the federal government by exactingly explaining their scope and ambit.

There was no organized militia at that time except for the rag-tag vestiges of the states corps . . . There was however half a million citizens with arms in their hands.

[hansberrym]

141. Where do we post Glen Vardy errors? We post them here.

You have sustained your arguments here by employing a series of logical fallicies.

The False dichotomy : In discussing the CO provisions you set up a false dichotomy in which "bear arms" can only mean "carrying weapons for self defense" or "service in the militia". It is a old trick of the anti's, and still works on some, at least for a little while.

The non-sequitor: that one could be compelled to bear arms in service of the state does not mean that is the only possible way one could bear arms.
(as an aside, when one considers the rights clauses of the various state RKBA provisions, it is downright silly to claim that the people were guaranteed nothing more than a right to "carry arms in service of the state organized militia" as Stevens' dissent defined "bear arms".)

Misdirection: in discussing the CO provisions, you have misstated the meaning the Heller majority ascribed to "bear arms". Do you see the difference between "carrying arms", "carrying arms in case of confrontation", and "carrying arms in service of a state organized militia"? The majority in Heller settled on "carrying arms in case of confrontation", while the dissent in Heller insisted on the more specific "carrying arms in service of a state organized militia" because that got them what they wanted. But the obvious question to Stevens et. al. is this; are not persons in the regular US Army "bearing arms"?, or do these words only apply to persons in service of the state organized militia? The answer is obvious and Stevens' neatly tailored definition is hopelessly narrow, it can't fit well anywhere but his very limited set of facts.


Unlike Stevens', you are argueing that the RKBA is a collective right, a position now thoroughly rejected in scholarship and in SCOTUS. You claim that "bear arms" has only the idiomatic meanings “to serve as a soldier, do military service, or fight”. And while the dissent in Heller presented those 3 possible meanings, it knew full well those meanings could not be force fitted into the actual text of the Second Amendment as it makes no sense to speak of a right to keep and "do military service", and so they opted for a more tailored approach. Your idiomatic reading is further undermined by quotes from the founding era, as well as the earliest state curt cases.

In conclusion, the coup de gras for the Collective Rights theory was of course US v. Heller, but scholarship had chipped away at it for several years prior, and the progeny of Heller have made sure it will remain dead. You should not be blaming Halbrook for slaying the Collective Rights theory, your true opposition is Saul Cornell as he thoroughly exposed the Collective Rights theory's left flank, and his work was in my estimation a large part of the reason that the Heller court found 9-0 that the RKBA was an individual right.

[SteveM]

196. Damn hansberrym, how could you stand the "logical" noodling? I'm impressed.

[hansberrym]

215. So Glen what is your interpretation of the right to keep and bear arms?

At times you argue from a Collective Rights POV, other times you seem to be making a States rights argument, and still others you seem to argue the Political right case.


One might get the idea that you are opportunistically taking whatever position best suits the particular situation versus the Individual right interpretation.

[Glenn Vardy]

249. Spot Halbrook's own assertions

"Considering their individual right to have weapons for defense as a starting point... The Provincial Congress of North Carolina resolved "that each Militia Soldier shall be furnished with a good Gun, Bayonet, Cartouch Box, Shot Bay and Powder Horn, a Cutlass or Tomahawk; and where any person shall appear to the Field Officers not possessed of sufficient Property to afford such Arms and Accoutrements, the same shall be provided at Public Expense ...."

In light of... the fact that North Carolina's members of the Continental Congress supported the right of individuals to bear arms, it would have been unlikely that any declaration of rights adopted during that period would not recognize a right to bear arms." - Stephen P. Halbrook.
---------------------------------------------------

1. "..their individual right.. as a starting point.."
2. "..members of the Continental Congress supported the right of individuals.."

Niether of these assertions are supported by the militia law he presents.

[Glenn Vardy]

250. The Ramblings of Stephen P. Halbrook.

"The delegates at the North Carolina constitutional convention, which met in November and December, 1776, had been instructed by their constituents to adopt a declaration of rights. For example, the inhabitants of Mecklenburg instructed "that you shall endeavor that the form of Government shall set forth a bill of rights containing the rights of the people and of individuals..." The delegates were urged to acknowledge certain maxims, including that "the principal supreme power is possessed by the people.."

...As adopted, the Declaration of Rights furnished the following interconnected guarantees:

I. That all political power is vested in, and derived from, the People only.
XVII. That the People have a Right to bear Arms for the Defense of the State; and as standing Armies in Time of Peace are dangerous to Liberty, they ought not to be kept up ....
XVIII. That the People have a Right to assemble together ....

...While the right to bear arms for self-defense.. was encompassed in this provision, the arms guarantee expanded that right by explicitly recognizing the right to bear arms "for the Defense of the State."

...The phrase "for the Defense of the State,".. was.. not a limitation, of the traditional right to use and carry arms.

....the militia is not even mentioned in the provision. The framers intended to guarantee individual rights when they used the term "the People," in both the right to bear arms and assembly provisions. By contrast, when they intended to guarantee a collective right, they did so explicitly: "The Property of the Soil in a free Government being one of the essential Rights of the collective Body of the People.."" - Stephen P. Halbrook.
-----------------------------------------------

All follow that?

[Glenn Vardy]

251. "Carry a gun"

There were, however, disarming laws which were aimed at slaves.. after the master gave bond, a certificate could be granted "allowing any Slave to carry a Gun and hunt in the Woods." ...In sum, under the constitution and laws of North Carolina, the right to keep and carry arms went virtually unquestioned." - Stephen P. Halbrook.
------------------------------------------

The only reason that Halbrook mentioned the law prohibiting a slave from carrying a gun is to fool the reader into believing that, in HIS words, "under the constitution," individual white men had "the right to keep and carry arms."

Under tha laws of North Carolina, it may not have been ILLEGAL for whites to "carry arms," as Halbrook puts it. But this doesnt' mean that "under the constitution" each individual white man had "the right to keep and carry arms."

Halbrook uses the word "keep" in his blatent assertion. That word wasn't in their arms bearing provision.
XVII. "That the People have a Right to bear Arms for the Defense of the State; and as standing Armies in Time of Peace are dangerous to Liberty, they ought not to be kept up etc"


Also, why "carry a gun" and not "bear arms" in this non-military context?

[Glenn Vardy]

252. "Proper means of defence."

"The anti-federalist position at the North Carolina constitutional convention was well stated by William Lenoir, who warned of the powers of Congress:

"They can disarm the militia. If they were armed, they would be a resource against great oppressions .... If the laws of the Union were oppressive, they could not carry them into effect if the people were possessed of proper means of defense."

Inexplicably, these remarks would be referred to in 1942 as authority (without quoting them) for the claim that the second amendment guarantees a collective, state right to maintain a militia, but not an individual right to keep and bear arms.<183> On the contrary, Lenoir clearly equated all of the people with the militia, thereby asserting every individual's right to have the means of defense." - Stephen P. Halbrook
--------------------------------------------

As usual, another blatent assertion.

"It appears to me that, instead of securing the sovereignty of the STATES, it is calculated to melt them down into one solid empire... It will be past recovery, when Congress has the power of the purse and the sword. The power of the sword is in explicit terms given to it... They have also an exclusive legislation in their ten miles square, to which may be added THEIR POWER over the MILITIA... They can disarm the MILITIA. If they were armed, they would be a resource against great oppressions. The laws of a great empire are difficult to be executed. If the laws of the Union were oppressive, they could not carry them into effect, if the people were possessed of proper means of defence." - William Lenoir.

Congress having the power to "disarm the militia" is Congress failing to provide for the arming, ORGANIZING AND DISCIPLINING of the militia, a power set out in Article 1, Section 8. When this IS properly provided for, "the people" WOULD be "possessed of proper means of defence."

[jmg257]

253. Proposed amendments: 'these altogether respected personal liberty'.

"{A} string of amendments were presented to the lower House; these altogether respected personal liberty."

William Grayson -- Letter to Patrick Henry, June 12, 1789, referring to the introduction of what became the Bill of Rights.

Is "personal" now a collective word too?

One of the proposed amendments being referred to:

"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."


Yet another founding father who knew 'the right of the people to keep and bear arms shall not be infringed' secured a personal, private, individual right.

Right or wrong, Halbroook and Vardy interpretations are fun to discuss to a point, but a guy that was actually there? - I'll take his word for it.



"Madison has inserted in his amendments the increase of representatives, each State having two at least. The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people."

Fisher Ames -- Letter to F.R. Minoe, June 12, 1789, referring to the same proposed amendments

'Bearing arms' is declared an inherent right of the people, exactly like the right of conscience. Can people only practice a religion of their choosing collectivley, or is their individual right to do so secured?

I'll take his word too.

[jmg257]

254. "...they are calculated to secure the personal rights of the people ...."

Joseph Jones-- Letter to James Madison, June 24, 1789, Virgina State Congressman, regards to the proposed articles/amendments.

I'll take his word for it, too.

[Glenn Vardy]

256. The individual right of "changing the government?"

I take it you can't find fault with my observation of Halbrook's misleading commentary?

"{A} string of amendments were presented to the lower House; these altogether respected personal liberty."

William Grayson -- Letter to Patrick Henry, June 12, 1789, referring to the introduction of what became the Bill of Rights.

Does the Tenth Amendment deal with "personal liberty?" Wasn't there twelve amendments originally? Did the other two deal with "personal liberty?"

"Madison has inserted in his amendments the increase of representatives, each State having two at least. The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people." - Fisher Ames -- Letter to F.R. Minoe, June 12, 1789, referring to the same proposed amendments

'Bearing arms' is declared an inherent right of the people, exactly like the right of conscience.

And changing the government?

I think I see one of two omitted from the original twelve there. The number of representatives has nothing to do with "personal liberty."

[jmg257]

257. I don't worry about Halbrook - but correct - I don't see the arguments you refer to

as compelling (or correct?) as other examples showing the individual nature of the right.

Correct, other proposed changes did not deal with personal liberty (Madison referred to only a portion of his proposals as a 'bill of rights')

Ames said they all respected personal liberty. I agree.


Changing the govt is an inherent right of the people, yes. And is understood "collectively"..so this is a neutral comment/example - agreed.


I remember way back when in Heller, where the petitioners argued "right to bear arms" was exclusively a militia/collective phrase, then gave the Pennyslvania Minority quote as an example, which quite cleary showed the phrase used in an individual AND non-military manner.

Your cites of Halbrook reminds me of that sometimes!


And why I waste way too much time arguing this stuff that is pretty unimportant - 'cause what I think and what you think make little difference. It is interesting to a point, and I like learning, especially if wrong, but...must get back to the real world!

Cheers!

[Glenn Vardy]

258. Albert Gallatin.

Ames said they all respected personal liberty. I agree.

That's why I asked if the Tenth Amendment of the Bill of Rights deals with "personal liberty."

"The whole of the Bill is a declaration of the right of the people at large or considered as individuals..." - Albert Gallatin of the New York Historical Society, October 7, 1789

And

Mr. Gallatin. "He took a view of the different stages of society, to show that whenever regular governments were established, the public defence was always placed in them; and it was their duty to protect individuals, since they did not give them leave to protect themselves."

[jmg257]

259. On Albert...et. al.

"The whole of the Bill (of Rights) is a declaration of the right of the people at large or considered as individuals.... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of."


Why can't these $%^% be more specific???

:)

[Glenn Vardy]

261. "OR considered as individuals."

Yes, some of the individual rights are "unalienable." Does this prove that the "WHOLE" of the Bill of rights protects unalienable, individual rights?

Think about it. He DIDN'T say "The whole of the Bill of Rights is a declaration of the unalienable rights of individuals" for a reason.

[jmg257]

263. Not my point....Just saying why couldn't he be more specific as to which did what!

All of these guys & their qoutes could be a lot easier to figure intent from, if they were alot more specific!

I agree with your comment, BTW.

[Glenn Vardy]

260. No mention of Second Amendment when debating "carrying arms."

Fifth Congress debate on whether to allow merchant seamen to carry arms.

Mr. Gallatin. "He took a view of the different stages of society, to show that whenever regular governments were established, the public defence was always placed in them; and it was their duty to protect individuals, since they did not give them leave to protect themselves."

Robert Harper. "It was also confirmed by history, and the practice of neutral States, whose merchant ships did very frequently sail armed in time of war. It was a natural right to carry arms for defence, as much on the water as on the land. The offence lay in either case, not in the arming, but in the improper use of the arms. If a man on his journey should carry arms for his defence against robbers, this would be proper; but, should he use them to rob others, he becomes punishable as a felon. So it is at sea. The arms may be carried, and may be used properly. If used improperly, punishment ensues. This he had, moreover, understood to be the result of the best legal opinions in this country, and, indeed, it had not been denied."

William Smith. "The question was not whether we should authorize our vessels to arm to protect themselves; but whether, in the first place, our citizens have a natural right to arm and defend themselves, and if they have the right, whether the Legislature ought to restrict it, and in what cases. Though some gentlemen had denied this right to exist, no proof nad been adduced in support of that opinion."
---------------------------------------------------------------------

Why doesn't ANYONE in this entire debate mention the right to carry arms secured by the Second Amendment?

[jmg257]

264. Because they are debating/talking about arming vessels and not men? Rather obvious, that.

Debating this: "That provisions be made by law, for regulating the arming of merchant vessels of the United States."
And the ability of those aboard armed merchant vessels to cause a war.


But there is this bonus, to shed light on Gallatin's positions. Seems he was wrong too, because when actually very briefly discussing individual rights, Smith said...:

"whether...our citizens have a natural right to arm and defend themselves, and if they have the right, whether the Legislature ought to restrict it, and in what cases. Though some gentlemen had denied this right to exist, no proof had been adduced in support of that opinion." And there was no debate at all on this point - either for or against.


Thanks!

[Glenn Vardy]

265. Vessels carrying arms?

Because they are talking about vessels and not men?

"It was a natural right to carry arms for defence, as much on the water as on the land..."

"So it is at sea. The arms may be carried, and may be used properly. If used improperly, punishment ensues."

to shed light on Gallatin's position. Seems he was wrong too.:

"...our citizens have a natural right to arm and defend themselves, and if they have the right, whether the Legislature ought to restrict it, and in what cases. Though some gentlemen had denied this right to exist, no proof had been adduced in support of that opinion."

I don't doubt that there was a disagreement over whether or not individual citizens had a NATURAL right to arm themselves for self defence. The main point is: none of them thought that the Second Amendment secures THAT right. I mean, why didn't the others offer proof that right does exist by pointing to the Second Amendment?

[jmg257]

266. None of them needed to bring the 2nd into it because they were NOT

debating the rights of men bearing arms, but the ability of merchant vessels to be armed by their owners. Period.

Arms being cannon, etc. that could be used to provoke hostilities with say, France or England, etc. by firing on their ships.

Since they were debating armed merchant vessels and the President forbidden these vessels to be armed, I would think no one really cared that the 2nd secures the individual right for men to keep and bear arms. Now if Smith and Gallitin squared off in another room, the Tavern, ec. after-wards, who knows?

But in this debate, the only point worth considering is the individual rights of men to arm was not the issue being debated.

Clearly.


But thanks for this too:

"It was a natural right to carry arms for defence, as much on the water as on the land..."

[Glenn Vardy]

273. Right of citizens to be armed was raised

Like it or not, the issue of whether or not those "citizens" had a "natural right" to "arm" "themselves" WAS raised in the debate.

William Smith. "The question was not whether we should authorize our vessels to arm to protect themslves; but whether, in the first place, our CITIZENS have a NATURAL RIGHT to ARM and defend THEMSELVES, and if they have the RIGHT, whether the Legislature ought to RESTRICT IT, and in what cases."

NOBODY said that the right CAN'T be restricted because it's protected by the Second Amendment.

Robert Harper. "...It was a natural right to carry arms for defence, as much on the water as on the land."

Is Harper talking about a natural right for "vessels" to be armed on water AND on land?

Repeat: NOBODY referred to the Second Amendment when the issue of a natural right for those citizens to be armed was raised.

[jmg257]

274. Again..because they weren't debating it. Guys made comments, then moved on.

Repeat: NO ONE was DEBATING the natural right OR the 2nd amendment's role in securing that right.

Like it or not, it is an inconclusive example of nothing - with a 'blatant assertion' that some one would've, should've, could've mentioned it, when it was NOT relevant to their actual debate - a debate over 3 days or so where a couple comments were made days apart about individuals, in a discussion that was otherwise 99% about dis/arming merchant vessels, not merchant seaman. Where those few comments were not even in response to each other, because they WERE NOT DEBATING THE RIGHT OF INDIVIDUALS TO ARMS.

It is a non-issue, and a poor example to cite when discussing the 2nd which deals with the right of individuals, the people, and militias, not merchant vessels being armed with cannon and the president forbidden them to do so.

[jmg257]

277. Ahhh...so "arm and defend themselves" IS a phrase about individual citizens!

As when used in ...'the right to keep and bear arms to defend(for the defence of) themselves and the(their own) state..."

Thanks - I thought you were arguing against that early on, when referring to numerous similiar state provisions.

[Glenn Vardy]

280. Repost about context

Repost.
"I wouldn't dream of claiming that the other words are ALWAYS used in their collective sense. But people on YOUR side of this debate always DO claim that they're always used in the individual sense. It depends on the context in which they're used. For example, If "the people" have the right to govern "themselves" as a free and independant State, "themselves" is used in the collective sense. Even the word "alone" can be used in the collective sense depending on the context. For example, "the people alone" have the right to change or abolish the government."
------------------------------

In the State provisions you referred to, the right secured was for "the people" to "bear arms" for the defence of "themselves" and the State. These are militia provisions dealing with the COMMON/CIVIL defence. Notice that, in the debate we're discussing, none of them used the military phrase "bear arms" when talking about a natural right of citizens to "carry guns."

[jmg257]

281. I simply do not agree. "Themselves" means "themselves" in the state provisions.

Themselves - the individuals, the citizens, the people, acting on their own in defence of their own lives and their own property. Arms used for killing game on their own, for fighting 'savages', for killing bears, and for all the other things people like and need to do with arms individually, including joining together when mandated by the state to become a militia to provide for the common defence, to establsh justice, to ensure domestic tranquility...to repel invasions, to enforce the laws, to suppress insurrections.

Arms kept and used by people for the defence of themselves - individually, and arms kept and used for defence of the state in militia service - collectively.

I have not seen anything to convince me that the state provisions talking about 'defending themselves' refers only to a collective. I have not read anything to show that the use of the RKBA in the second amendment is an exclusively militia phrase. Just the opposite in fact.

Context works both ways, and those phrases WERE/ARE used both ways, and plenty of real examples are left behind by the people who wrote them to support the 'private right' intent as well as the obvious militia relationship, and no arguing about what they REALLY meant has been conclusive enough to show otherwise.

[Glenn Vardy]

283. "TO BE PROTECTED"

Themselves - the individuals... acting on their own in defence of their own lives

This proves your assertion wrong:

"That the people have a right to bear arms for the defence of the themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."

"That every member of society hath a right TO BE PROTECTED in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of the protection, and yield his personal service, when necessary, or an equivalent thereto; but no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives; nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law, but such as they have, in like manner, assented to, for their common good."
------------------------------------

"The people" have the collective right to protect "themselves," but "every member" of society has the right "TO BE PROTECTED" by the militia and was bound to contribute towards the expense "OF THE PROTECTION," and yield his personal "SERVICE" in the militia.

[jmg257]

284. Ha! Yea - tell that to the native americans coming to scalp you and the bears coming to eat you!

I would just love waiting for the militia to come save me & mine! Of course NO provision were in the militia clauses or militia acts to have them called forth to defend individuals, but you just keep on thinking that. Maybe they would magically appear - and with George Washington as CinC!

Too funny!


What amusing bullshit that is! That we have no individual right to arms to defend oursleves, but must wait for the state militia to come provide our personal defense!

LOL!

Makes NO sense, and 200 years ago you and your family would have been eaten by bears. (and that too is a blatant assertion!)


You do realize that the reason why people make governments is to better secure the rights to life & liberty? And that in NO WAY does that mean we are dependent on the state to provide for our self-defense?

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed"

Declaration, 1776

"The common good, therefore, is the end of civil government, and common consent, the foundation on which it is established. To effect this end, it was necessary that a certain portion of natural liberty should be surrendered, in order, that what remained should be preserved: how great a proportion of natural freedom is necessary to be yielded by individuals, when they submit to government, I shall not now enquire. So much, however, must be given up, as will be sufficient to enable those, to whom the administration of the government is committed, to establish laws for the promoting the happiness of the community, and to carry those laws into effect. But it is not necessary, for this purpose, that individuals should relinquish all their natural rights. Some are of such a nature that they cannot be surrendered. Of this kind are the rights of conscience, the right of enjoying and defending life, etc."

Yates, Brutus, 1787

"whether...our citizens have a natural right to arm and defend themselves, and if they have the right, whether the Legislature ought to restrict it, and in what cases. Though some gentlemen had denied this right to exist, no proof had been adduced in support of that opinion."

S Smith. As you well know. Sounds familiar even today.

Self defense. Natural right, Can't be surrendered. It exists, with arms, without arms. And we have it - God bless America!
Embrace it, embrace your ability to be self-sufficient! 'Cause George ain't coming.

[jmg257]

285. This of course, I do I believe. With one minor adjustment

"The people" have the right to protect themselves, but "every member" of society has the right "TO BE PROTECTED" by the militia collectively and was bound to contribute towards the expense "OF THE PROTECTION," and yield his personal "SERVICE" in the militia.

I agree. When can I get my M16?

[Glenn Vardy]

286. The "yes and no" game

Debating this topic with gun owners is like playing the "yes and no" game. Why don't you just admit what it says?

[jmg257]

287. No 'yes and no' about it. I have stated over and over what it says, and what the intent was and is.

And have giving numerous examples to amply refute any suggestions to the contrary.

There are numerous examples of the phrase "right to keep and bear arms" being used in a clearly individual nature from the same period in time.
There are state provision with the same phrase specifically referring to the rights of individuals to defend themselves with arms.
The existing 'well-regulated' Militia of the several States is a necessity to maintain freedom.
The people have a right to keep and bear arms.

So I'll admit it one more time:

The 2nd amendment secures the right of the people to keep and bear arms. It secures that right for the people individually, and for the people collectively for militia purposes. It also states the Militia of the several States is required. The militias must be well trained and well armed and well-functioning.

It is VERY important that the right of the people always have the right to keep and bear arms, and the most effective arms at that...their role in the militia demands it. As does their natural right to self-defense, with arms.

Can't be any more clear then that.

[Glenn Vardy]

289. Crystal-clear statements.

I have stated over and over what.. the intent was

And that's good enough?

And have giving numerous examples to amply refute any suggestions to the contrary.

I haven't seen them?

There are numerous examples of the phrase "right to keep and bear arms" being used in a clearly individual nature from the same period in time.

You're side-stepping. You brought up the matter of provisions dealing with the defence of "themselves" and the State. None of those provisions contained the word "keep," so they can't be distorted into provisions protecting a personal right to "own" arms.

There are state provision with the same phrase specifically referring to the rights of individuals to defend themselves with arms.

Are you talking about the new phrase you've just introduced? If you're not making unfounded statements you'll be able to post provisions that existed at the time of the founding or earlier where the defence of "themselves" was mentioned "specifically referring to the rights of individuals to defend themselves."

Can't be any more clear then that.

Your blatant assertions couldn't be any clearer.

[jmg257]

293. Ahh - I get it now!

"And that's good enough?"

Based on all the evidence presented by both sides, the words & intent of the founders, and common sense, certainly.

"And have giving numerous examples to amply refute any suggestions to the contrary.
I haven't seen them?
There are numerous examples of the phrase "right to keep and bear arms" being used in a clearly individual nature from the same period in time.
You're side-stepping. You brought up the matter of provisions dealing with the defence of "themselves" and the State. None of those provisions contained the word "keep," so they can't be distorted into provisions protecting a personal right to "own" arms."


Ahhh, Geesh - now I understand - after all this time...it is the word "keep" that is driving you nuts! In YOUR mind, "to bear arms" is not a military phrase, but "to keep and bear arms" is!

I got it now..we have a right to BEAR arms in defense of ourselves indiviudally, but we can't "KEEP" & bear them!? Well - we CAN keep them, but THAT right is not secured. Unless of course it is - under the protection of the 2nd, where the people can "keep and bear arms".

Ok. I am sorry.
Can I get my M16 now?

Thanks!

ps
Was it Jefferson who said if you have a right, it is necessary you also have the means to enjoy that right? So it is with "bearing" arms - sure helps if you have one!

[Glenn Vardy]

288. "Minor adjustment," major flaw.

one minor adjustment

"The people" have the right to protect themselves, but "every member" of society has the right "TO BE PROTECTED" by the militia collectively and was bound to contribute towards the expense "OF THE PROTECTION," and yield his personal "SERVICE" in the militia.

Every member of society has the collective right "to be protected?"
Every member of society collectively is bound to contribute "his" proportion towards the expense of the protection?
Every member of society collectively is bound to yield "his" "personal" service?

No chance.

"That the people have a right to bear arms for the defence of the themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."

"That every member of society hath a right TO BE PROTECTED in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of the protection, and yield his personal service, when necessary, or an equivalent thereto; but no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives; nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law, but such as they have, in like manner, assented to, for their common good."
---------------------------------------

"The people" have the collective right to protect themselves and the State, but "every member" of society has the personal right "TO BE PROTECTED" by the militia and was bound to contribute HIS portion towards the expense "OF THE PROTECTION," and yield HIS personal "SERVICE" in the militia.

[jmg257]

292. No chance of what?

"Every member of society has the collective right "to be protected?" "

Yes. The people will be protected by the Militia from invasion and insurrections. (AND the laws of the union will be enforced if threatened by combinations too powerful to suppress by ordinary judicial proceedings.)

"Every member of society collectively is bound to contribute "his" proportion towards the expense of the protection?"

Yes. Taxes will be raised for this purpose, I imagine. For arms, cannon, Armies, Navies, forts, etc. etc.

"Every member of society collectively is bound to yield "his" "personal" service?"

Yes. The people are mandated to provide personal service as members of the Militia.

"No chance."

No chance of what???

[Glenn Vardy]

297. Backwards, upside-down and inside-out.

Glenn
"Every member of society has the collective right "to be protected?" "

jmg257
"Yes."

You're saing that a right secured to "every member" of society is a "collective right," and a right secured to "the people" is a right secured to "every member" of society. It's all backwards, upside-down and inside-out.
---------------------------------

Glenn
"Every member of society collectively is bound to contribute "his" proportion towards the expense of the protection?"

jmg257
"Yes."

You're saying that HE isn't personally bound to contribute HIS taxes. It's all backwards, upside-down and inside-out.
-------------------------------------

Glenn
"Every member of society collectively is bound to yield "his" "personal" service?"

jmg257
Yes. The people are mandated to provide personal service as members of the Militia.

Would other members of society be bound to yield YOUR "personal" service? It's all backwards, upside-down and inside-out.
---------------------------------

Glenn
"No chance."

jmg257
"No chance of what???"

No chance that you're making sense.

[jmg257]

298. Wow - now you are just dragging this out for my amusement.

Glenn
"Every member of society has the collective right "to be protected?" "
jmg257
"Yes."
You're saing that a right secured to "every member" of society is a "collective right," and a right secured to "the people" is a right secured to "every member" of society. It's all backwards, upside-down and inside-out.
_________
No. I am saying every member of society, every person, every one of the people, is entitled to the state to protect their liberties, to protect their rights. That is why we form govts. Collectively, the people, that is every member of society, every person, can count that their rights & liberties will be protected.

If in the case of invasions or insurrections, our liberties were to be protected by the Militia. But the state has no obligation to provide for individual self-defense type protection. Which is why of course the indiviual right to keep and bear arms was secured.

Nothing backwards at all.

---------------------------------

Glenn
"Every member of society collectively is bound to contribute "his" proportion towards the expense of the protection?"
jmg257
"Yes."
You're saying that HE isn't personally bound to contribute HIS taxes. It's all backwards, upside-down and inside-out.
-------------------------------------

I am saying every member of society, every person, every one of the people, is bound to contribute towards the expense of this protection. Colletively, the people, that is every member of society, every person has to provide taxes for expenses, service in the Militia, etc. This is part of being a member of society, and has been mandated (within guidleines of militia acts for service of course). Arms the people provided themselves with - at their expense - for militia service is a good example (Though arms would also be provided for those who couldn't afford them).

Nothing backwards about that.

_________________________________________
Glenn
"Every member of society collectively is bound to yield "his" "personal" service?"
jmg257
Yes. The people are mandated to provide personal service as members of the Militia.
Would other members of society be bound to yield YOUR "personal" service? It's all backwards, upside-down and inside-out.
---------------------------------

I am saying every member of society, every person, every one of the people, is bound to provide service (within guidlenes of the militia acts). It is part of being a member of society. Colletively, the people, that is every member of society, every person (according to guidleines) is expected to provide personal service. No one else would be bound to provide my service. Though on occasion substitutions were allowed.

Nothing backwards about that either.

---------------
Glenn
"No chance."
jmg257
"No chance of what???"
No chance that you're making sense.
_______-__________


Yep - its all me.
And the word "keep" makes "to bear arms" a military phrase! How upside down & backwards is THAT?!?
LOL!

Let summarize, hopefully for the last time.

Every member of society has the individual right to keep and bear arms - for defense of themselves individually, for the killng of game, for any lawful reason they would want 1, or many. Collectively, the people have a right to keep and bear arms for service in the militia...THOSE arms MUST BE effective for use in the Militia.

Both of these rights are secured by the 2nd amendment.

As codified in law by the US Congress, and as supported by the SCOTUS.

Last quote ever needed...

Public Law No:109-92
SEC. 2. FINDINGS; PURPOSES.
(a) FINDINGS.—Congress finds the following:
(1) The Second Amendment to the United States Constitution
provides that the right of the people to keep and bear
arms shall not be infringed.
(2) The Second Amendment to the United States Constitution
protects the rights of individuals, including those who
are not members of a militia or engaged in military service
or training, to keep and bear arms.

[We_Have_A_Problem]

299. At what point...

...will you concede that despite all your linguistic gymnastics, you are wrong?

[jmg257]

267. Hey - check this out!! You'll like it!

S. Smith: '...he moved to strike out the word "regulating" and to insert in place of it "restrict in certain cases".

Now where would THAT use of the meaning of "regulate" come in handy?

;)

"That provisions be made by law, for regulating the arming of merchant vessels of the United States."

"A well-regulated militia..."

Shit - I will NOT debate that "well-regulated" in the 2nd doesn't mean 'well-armed and well trained'.

:)

[Glenn Vardy]

269. "Well regulated militia law."

A "well regulated militia" is a militia regulated by law.


"The irregular and disjointed State of the Militia of this Province, makes it necessary for me to inform you, that, unless a Law is immediately passed by your Legislature, to reduce them to some order, and oblige them to turn out, in a different Manner from what they have hitherto done, we shall bring very few into the Field, and even those few will render little or no Service. Their Officers are generally of the lowest Class of People; and, instead of setting a good Example to their Men, are leading them into every Kind of Mischief, one Species of which is, Plundering the Inhabitants, under pretence of their being Tories. A Law should, in my Opinion, be passed, to put a Stop to this kind of lawless Rapine; for, unless there is something done to prevent it, the People will throw themselves, of Choice, into the Hands of the British Troops. But your first object should be a WELL REGULATED MILITIA LAW; the People, put under good Officers, would behave in quite another Manner; and not only render real Service as Soldiers, but would protect, instead of distressing, the Inhabitants. What I would wish to have particularly insisted upon, in the New Law, should be, that every Man, capable of bearing Arms, should be obliged to turn out, and not buy off his Service by a trifling fine. We want Men, and not Money." - George Washington to William Livingston, January 24, 1777.

[jmg257]

270. Or not. As when practiced enough in arms and military maneuvers.

"To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia"

Hamilton Federalist #29 Jan 9, 1788


A 'well-regulated militia' law would be a law that 'forced' the militia to be well-regulated, as it would ensure they were well-organized, well-disciplined (trained) and deal with making sure they were well-armed. It might also take steps to make sure they were well-behaved, which it seems is also what Washington wanted.

[Glenn Vardy]

271. Hamilton

Concerning the Militia, Independent Journal, Wednesday, January 9, 1788, Alexander Hamilton.

To the People of the State of New York:
"THE POWER of REGULATING the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy... This desirable uniformity can only be accomplished by confiding the REGULATION of the militia to the direction of the national AUTHORITY.... If a well-regulated militia be the most natural defense of a free country, it ought certainly to be UNDER THE REGULATION and at the disposal of that BODY which is constituted the guardian of the national security.... What PLAN for the REGULATION of the militia may be pursued by the national GOVERNMENT, is impossible to be foreseen.... What reasonable cause of apprehension can be inferred from a POWER in the Union to prescribe REGULATIONS for the militia...."

[jmg257]

272. Interesting. Do you think a militia could be 'well-regulated' without law?

Could an entity regulate itself - to the point where it is a well functioning unit (through plenty of practice etc.)?

Because once again it seems we have 2 uses of the same words. Unless in #29 Hamilton was comparing a well functioning militia (aquired via training) to one that was well-regulated via law, and NOT saying a 'well-regulated militia' is a well functioning militia, as it appears to me.(??)

Hmmm...

[Glenn Vardy]

275. Luther Martin

Could an entity regulate itself - to the point where it is a well functioning unit?

Yes, a group of armed individuals could come up with a set of "rules" so that they could function as a unit. But that's not what the FOUNDERS had in mind.


Luther Martin:
"By the next paragraph, Congress is to have the power to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States."

"For this extraordinary provision, by which the militia, the only defence and protection which the STATE can have for the security of THEIR RIGHTS against arbitrary encroachments of the general government, is taken entirely out of the POWER of their respective STATES, and placed under the power of Congress, it was speciously assigned as a reason, that the GENERAL GOVERNMENT would cause the militia to be better REGULATED and better disciplined than the STATE GOVERNMENTS, and that it would be proper for the WHOLE MILITIA of the union to have a UNIFORMITY in their arms and exercise. To this it was answered, that the reason, however specious, was not just; that it would be absurd the militia of the western settlements, who were exposed to an Indian enemy, should either be confined to the same arms or exercise as the militia of the eastern or middle States; that the same penalties which would be sufficient to enforce an OBEDIENCE to MILITIA LAWS in some States, would be totally disregarded in others--That leaving the POWER to the several STATES, they would respectively best know the situation and circumstances of their citizens, and the REGULATIONS that would be necessary and sufficient to effect a WELL REGULATED MILITIA in each--That we were satisfied the militia had heretofore been as well disciplined, as if they had been under the REGULATIONS of Congress; and the STATES would now have an additional motive to keep THEIR militia in proper order, and fit for service, as it would be the only chance to preserve their existence against a general government, armed with powers sufficient to destroy them."

[jmg257]

276. OK - so it does seem there were 2 uses for the same word, or phrase.

Well-regulated meaning well-functioning as Hamilton says in 29. And regulated by law as your quote of his shows.

And again here, where Martin says, also in the same phrase:

"..and the REGULATIONS that would be necessary and sufficient to effect a WELL REGULATED MILITIA...well-disciplined...to keep THEIR militia in proper order"

and

"...better REGULATED and better disciplined than the STATE GOVERNMENTS, and that it would be proper for the WHOLE MILITIA of the union to have a UNIFORMITY in their arms and exercise."

where 'better regulated' refers to uniformity of arms & discipline = well-functioning, which we know is why the congress got those 3 powers.
I agree that was the intent - to ensure the existing State Militias would be (more) effective when called into federal service - our freedoms depended on it!


Too wacky!
And why these type of debates will never end! As if people as individuals vs people collectively wasn't enough!

Thanks by the way for the follow-up!

[Glenn Vardy]

278. Laws, not rules

We both know that when they said "well regulated militia" in the middle of speeches about government "regulations," Federal and State, and "uniformity" in "arms and exercise" for the "whole militia of the union," they weren't talking about a militia that was "functioning properly" because of some rules drawn up by gun-owners.

[jmg257]

279. No shit. What AT ALL does that have to do with what we are discussing???

Which is "well-regulated" being used by Hamilton & Martin to mean both 'well-functioning' AND 'regulated by law'. One does not necessarily require/result in the other. Just look at the ineffectiveness of the Miltia before the constitution - plenty of laws (state militia acts), terrible functioning - i.e. regulations? yes, well-regulated? no.

Who said ANYTHING about gun owners drawing up rules?
Gun owners drawing up their own rules and trying to form a militia is an armed mob. Also illegal in numerous states (41 I think?).

A state-sponsored militia with good discipline, excellence in exercises (good training) and adequate arms IS a well-regulated militia, by Hamlton's definition (and mine).


edit: ahh - re-reading..does 'well regulated' to you mean 'the proper regulations necessary to get a well functioning militia, where the regulations are laws passed by a governmental authority'? A government sanctioned militia that trained often, functioned well, was well-armed, (and behaved itself) but had no real regulations to organzie and discipline it would not mean it was 'well-regulated'?

I think 'well-regulated' itself, asusedin the 2nd, means "well-functioning"...period.

[Glenn Vardy]

290. What point are you making?

Gun owners drawing up their own rules and trying to form a militia is an armed mob

Is the "well regulated militia" mentioned in the Second Amendment just an armed mob consisting of individuals with a right to own guns?

WHAT IS YOUR POINT in claiming that a "well regulated militia" is just a "properly functioning" militia?

[jmg257]

291. In simplest form: "Well regulated" in the 2nd means "well-functioning".

"Militia" refers to the "Militia of the several States."

It being the only militia ever referred to in the COTUS.


"A well regulated militia" means "well functioning Militia of the several States."

[Glenn Vardy]

295. You have no point.

I asked: "Is the "well regulated militia" mentioned in the Second Amendment just an armed mob consisting of individuals with a right to own guns?"

In simplest form: "Well regulated" in the 2nd means "well-functioning".

No! simplest form would have been a "yes" or a "no."
-----------------------------

I specifically asked: "WHAT IS YOUR POINT in claiming that a "well regulated militia" is just a "properly functioning" militia?"

"A well regulated militia" means "well functioning Militia of the several States."

Again, that doesn't answer the question. You have no point in going on about a "well functioning militia."

[jmg257]

296. OK I'll try again. Thought I was clear...but OK.

The "well regulated militia" in the 2nd is NOT an armed mob, etc..

"Is the "well regulated militia" mentioned in the Second Amendment just an armed mob consisting of individuals with a right to own guns?"

NO! Nope! Not at all. It is NOT.
Clear, right?


As I explained, "well regulated" in the 2nd means 'well-functioning'. "militia" in the 2nd refers to the Militia of the several States, (the only Militia mentioned in the COTUS, the only one that is "necessary" for a free state).

SO...The 'well regulated militia' IS a 'well functioning...Militia of the several States'.

Clear, right?


My ultimate POINT was, as used in the 2nd amendment, "well-regulated" =, equals, is the same, means "well-functioning". Period.

Now tell me - is THAT not clear enough?

[Glenn Vardy]

262. Rapid fire assertions

Stephen P. Halbrook.

"As proposed by Adams, the arms guarantee read: "The people have a right to keep and bear arms for the common defense. And as, in time of peace standing armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it." ...questions were also raised concerning the arms guarantee.

"The Convention went into the consideration of the 18th article, (the subject military power), and after considerable debate, and expunging the word 'standing' before the word 'armies,' accepted the same ...."

(WARNING! BLATANT ASSERTION AHEAD.)

It could be that some of the controversy may have revolved around "the common defense" as a possible restriction on the right to keep and bear arms...

(WARNING! BLATANT ASSERTION AHEAD.)

...proponents of the clause probably argued that the term was expansive and was meant to preclude any construction that arms could be used only for individual self-defense, a well recognized right, but not for common defense...

(WARNING! BLATANT ASSERTION AHEAD.)

Indeed, both private and general defense had already been recognized in article I of the Declaration, which included among the unalienable rights "defending their lives and liberties ... and protecting property ...."

(WARNING! BLATANT ASSERTION AHEAD.)

In light of the fact that the Massachusetts Constitution was the first in which the right not only to "bear," but also to "keep" arms was explicitly recognized,.. it is clear that "the common defense" was not intended to limit the right to bear arms.


...at least two towns objected to the clause as too narrow. The town of Northhampton resolved: "The people have a right to keep and bear arms as well for their own as the common defense."

"Similarly, the town of Williamsburg proposed the following alteration: "...that the people have a right to keep and to bear Arms for their Own and the Common defense." Our reasons gentlemen for making this Addition Are these... That the legislature in some future period may Confine all the fire Arms to some publick Magazine and thereby deprive the people of the benefit of the use of them"

(WARNING! BLATANT ASSERTION AHEAD.)

The Northhampton resolution would have made the provision more explicit by having the arms provision specifically recognize what was taken for granted..

(WARNING! BLATANT ASSERTION AHEAD.)

John Adams, draftsman of the Declaration, apparently deemed this unnecessary in view of the... common law."

[spin]

282. The reality is that I own firearms for self defense ...

and I am not a member of an organized militia nor am I a member of the unorganized militia or of a private militia. I am 65 and therefore too old to be a member of the first two, and have absolutely no interest in ever becoming a member of a private militia and spending my weekends in camo gear running around in the woods playing soldier.

The current United States Code, Title 10 (Armed forces), section 311 (Militia: Composition and Classes), paragraph (a) states: "The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard."<40> Section 313 of Title 32 refers to persons with prior military experience who could serve as officers. These persons remain members of the militia until age 64. Paragraph (b) further states, "The classes of the militia are: (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."<41>
http://en.wikipedia.org/wiki/Militia_%28United_States%29

Florida, where I live, has given me a concealed weapons permit after I applied and qualified. I legally carry a firearm in public and you don't use a snub nosed revolver in an urban area to hunt deer. My snubbie is a defensive firearm to stop an attack from someone who intends to seriously injure or kill me.

Perhaps sometime in the future the Supreme Court will rule that citizens can only own firearms for hunting and will require me to turn in my snub nosed revolver. Somehow, I doubt that this will ever happen and it it did there might be an uprising.

This whole thread reminds me of arguing about how many angels can dance on the head of a pin.

How many angels can dance on the head of a pin?

The question how many angels can dance on the head of a pin? has been used many times as a trite dismissal of medieval angelology in particular, of scholasticism in general, and of particular figures such as Duns Scotus and Thomas Aquinas.<1> Another variety of the question is How Many Angels Can Sit On The Head Of A Pin? In modern usage, this question serves as a metaphor for wasting time debating topics of no practical value.emphasis added
http://en.wikipedia.org/wiki/How_many_angels_can_dance_on_the_head_of_a_pin%3F

edited for HTML error

[SteveM]

300. This thread looks like a wiring diagram for a '76 Cadillac Fleetwood. nt

[jmg257]

301. Thanks for this...time to get back to playing guitar and stop wasting time on this BS! nt