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Old 11-22-2007, 02:49 PM
andyfox andyfox is offline
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Default Re: Supreme Court to Overturn DC Gun Ban once and for all

"Why would Madison offer Coxe a rousing approval for his published sentiments if they were so opposite to what you say was actually embraced in the proposed 2nd Amendment?"

Madison didn't offer a "rousing approval" and Coxe's comments were not about the proposed 2nd Amendment.

First, Coxe himself described his efforts as hasty and rushed in a letter to James Madison of June 18, 1789. "I have therefore taken an hour from my present Engagement and thrown together a few remarks upon the first part of the Resolutions." Coxe argued that citizens would not be deprived the "implements of the soldier [my emphasis]. This was consistent with his earlier views, to wit:

When the Pennsylvania state ratification convention met, anti-federalists penned "The Dissent of the Pennsylvania Minority." The Dissent asserted the following claims:

"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 purposes of killing game; and no law should 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 inhabitants of the several states shall have the liberty to fowl and hunt in seasonable times.

"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."

Coxe was a vocal critic of the Dissent. He focused his attack on the Dissent's fears about threats to the militia. "Who are these militia?" Coxe asked his readers. "Are they not ourselves?" In his view, the strength of the militia in America meant that there was no danger to be feared from the Constitution's authority over it. The civic conception of arms bearing was so deeply embedded in American culture that there was little to fear from the Constitution's power over the militia ("Are they not ourselves?"). He said that Congress had no power to disarm the militia because "their swords, and every other terrible implement of the soldier [my emphasis] are the birthright of an American." The right to bear arms was, in Coxe's view, clearly to preserve a right to keep and bear military weapons intended for militia service. Coxe did not take the problem of hunting or civilian firearms use as a serious issue meriting any attention.

In any event, Madison only offered a general encouragement of Coxe's effort to win support for the proposed Bill of Rights. Moreover, Coxe's comments were made about an early draft of the amendment, not the final form in which Congress inserted the affirmation of a well-regulated militia in the preamble in order to make clear that that's what the amendment was intended to refer to.

Here is what Jack Rakove says of the issue:

"Nor, it might be added, does the individual right interpretation derive as much support as it claims from a recurring reference to the explanatory essay published by Tench Coxe ten days after Madison's speech introducing the amendments. In this essay, Coxe glossed Madison's proposal with the observation that 'the people are confirmed by the next article in their right keep and bear their private arms.' At this point, however, Coxe could only have been commenting on the language and structure of Madison's original proposal, which, as noted earlier, did imply that the right of the people to bear arms was distinct from their right to enjoy a well-regulated militia; the changes that produced the final text of the Amendment, linking the preamble to the arms-bearing clause more directly, were more than two months in the future. To say that 'James Madison approved of Coxe's construction of the Second Amendment' is therefore incorrect on at least two grounds. First the letter from which this seal of approval is extracted was written on June 24, again well in advance of the changes subsequently made by Congress. Second, Madison did not discuss the substance or merits of Coxe's interpretation of particular rights. Here is his entire comment:

'It is much to be wished that the discontented part of our fellow Citizens could be reconciled to the Government they have opposed, and by means as little as possible unacceptable to those who approve the Constitution in its present form. The amendments proposed in the H. of Reps. had this twofold object in view; besides the third one of avoiding all controvertible points which might endanger the assent of 2/3 of each branch of Congs. and 3/4 of the State Legislatures. How far the experiment may succeed in any of these respects is wholly uncertain. It will however be greatly favored by explanatory strictures of a healing tendency, and is therefore already indebted to the co-operation of your pen.'

In fact, during the ratification campaign proper, Coxe had written other essays, which went to some length to emphasize the reserved legislative powers of the states, including the police powers associated with public health and welfare, and one would have to indulge some rather bold leaps of this historical imagination to infer that he had suddenly decided that recognition of an individual right to bear arms trumped the authority of the states in this respect." [end Rakove]

So there was no "rousing approval" and the 2nd amendment as eventually adopted was changed from the version about which Coxe was commenting in the first place.
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