2nd Amendment ---- and other superfluous provisions

[andyfox]

Maybe Jefferson had it right and maybe he had it wrong. But what is certain is that what he had in mind was not in the mainstream of what the Framers of the Constitution and his fellow Virginians had in mind. And not what is in the Constitution.

[Zeno]

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Maybe Jefferson had it right and maybe he had it wrong. But what is certain is that what he had in mind was not in the mainstream of what the Framers of the Constitution and his fellow Virginians had in mind. And not what is in the constitution.

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Fair statement.


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And not what is in the constitution.

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As originally intended by the Framers. Can that original intent change without the actual words changing?

By the way, great posts throughout this and other related threads Andy, Kudos. Gave me much to think about. Thank You.

And in that light this will spur me to make a post that will be cast on the winds of the politics forum - an important thought experiment for my own curiosity and also to get the masses out of the doldrums and into a free thinking mode, or not.


-Zeno

[wacki]

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Note that when Thomas Jefferson wanted to insure an individual right to possess personal weapons in Virgina (a proposal that was rejected), he wrote the proposed law as:

"No free man shall be debarred the use of arms."

The "right to bear arms" was known to refer to militia activity.

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Well in all honesty there are ex-criminals/insane people that I wouldn't want to give guns. You can't draw the conclusions you are drawing just because this was rejected. I would have problems with Jefferson's absolutist phrasing and I'm very pro individual rights. There were similar rejections on the opposite end of the spectrum. "for the common good" was one phrase that was strongly voted down when drafting the 2A. If the 2A was solely for the collective militia why was that phrase so strongly shot down?

[andyfox]

The conclusion I'm drawing is that Jefferson's language was clearly intended to protect the private right to have weapons; the "keep and bear arms" language was clearly intended to refer to militia and other military activity. I'm not saying that had Jefferson's language been more moderate it too would have been rejected; perhaps there would have been an acceptance of an individual right to have weapons for personal usage. But the "keep and bear arms" language, as all the debate about it shows, was not intended to apply to personal weapon possession or usage.

As far as "For the common good" being in the original language of the proposed second amendment: Madison's initial formulation of the right to bear arms read:

"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."

Some in Congress wanted to add that the purpose of the militia was to provide for the common defense (not that people could have arms for the common good). For those who feared the new federal power, inclusion of this language would have seemed ominous. They feared it would provide a basis for unscrupulous leaders for prohibiting the miltia from defending the states or localities from external or internal threats. Virginia had two ardents states' rights senators and they would have viewed this as a dangerous concession to the federal government. Virginians were especially worried that federal control of the militia would threaten their state's ability to put down insurrections, since they had such a large slave population. That's why that phrasing was shot down.

[Zeno]

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That's why that phrasing was shot down.

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Interesting way to phase your point. [img]/images/graemlins/smirk.gif[/img]


Madison was verbose to the point of distraction at times and his initial formulations for amendments were worked over and consolidated, for example the first amendment is a consolidation of three separate proposed changes that Madison recomended. For example his initial proposed freedom of the press was:

"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."

Madison had to add an explanation, just as he did for his 'right to bear arms' proposal. It was his initial formulation that was never rewritten wholly, just tweaked about the margins and fondled over some, that has added to the confusion about this amendment. If they had started with Jefferson's statement then the text would have oozed clarity (or as much clarity that language can ooze).

As a side bar it is intersting that Madison also purposed this modification to the constitution that was never adapted -

"Fifthly; That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit:

No state shall violate the equal rights of conscience, or the freedom of the press, or the trail by jury in criminal cases."

One more thing to add that has some bearing on this discussion, just prior to his 'Fifthly' quoted above Madsion has a paragraph [this is taken from his constitutional amendments speech] that is of some interest, to wit:

"The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution."

Wisely put and echoed in the ninth amendment of the Bill of Rights.

-Zeno

[andyfox]

Madison's initial formulation of the right to bear arms read:

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 coutnry; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

The House of Representatives revised Madison's original formulation, placing the affirmation of a well-regulated militia before the right to keep and bear arms. The introductory clauses of statues were commonly understood by eighteenth-century lawyers to hold the key to the meaning of a law. Framing the right to bear arms as a corollary of a preamble focusing on the need for a well-regulated militia clearly signaled that the purpose of the amendment was to protect the militia. The House also added a clause describing the militia as "composed of the body of the people" and changed a semicolon to a comma, an editorial decision that linked the clauses containing the miltia and the right of the people more closely.

In the debate in the House over how to treat religious pacifists, reference to the miltia was paramount. Elbridge Gerry said that "whenever government means to invade the rights and liberties of the people, they always attempt to destroy the militia." The British had "used every means in their power to prevent the establishment of an effective militia to the eastward." Gerry, one of the few Anti-Federalists to be elected to the House, did not mention any threat to the rights of individuals to use guns outside militia service.

Records of the Senate's deliberations do not survive. There is a surviving letter from Virginian John Randolph saying that a faction in "the Senate were for not allowing the militia arms."

[andyfox]

. . . has a thread of originalism.