[andyfox]

We had some good discussion about this back in March. I'm sure we will again as the Court hears the case. The more I delve into it the more I'm convinced you are wrong.

When Johnson said "the people" he did not mean an individual. He meant the people in their capacity as the resisters to either armed insurrection from the poor or slaves or attack by Indians or foreign invasion. And the people who would do that were the member of the militia, service in which was generally required of all able-bodied male adults.

As for Madison, his 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.

The discussion of religious objection to bearing arms shows that the idea of keeping and bearing arms in Madison's mind involved militia service. Quakers, for example, opposed bearing a gun for military purposes, not to hunt for food. Madison wrote this with the intention of it being inserted in the Constitution in the section dealing with militias.

Antifederalists claimed the Constitution was dangerous without a Bill of Rights. Two of the dangers they foresaw were a standing army in peacetime and federal control of the militia. The Second Amendment was designed to address those two issues, especially the militia. In fact, ardent Antifederalists were bitterly disappointed by the amendment. "Centinel" (Samuel Bryan) said that the amendment did not restrain "the absolute command vested by other sections [of the Constitution] in Congress over the militia."

In the debate in the House over how to treat religious pacifists, reference to the militia 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.

From your timeline:
"All the proposals called for a general duty of all citizens to be armed, although some proposals (most notably von Steuben's) also emphasized a 'select militia' which would be paid for its services and given special training."

So von Steuben was distinguishing between the regular militia--composed of the body of the citizenry--and a "select militia." Everything else in your timeline either explicitly refers to the militia when discussing arms or is clearly referring to it. Absolutely nothing there refers to an individual right to arms. Note that many were fearful of the government resorting to tyranny. The deterrent to that was an armed citizenry--a "well regulated militia."

In 18th century usage, the preamble to a law states the purpose of the text, and is not simply a justification clause as some modern scholars have suggested. Here is what Blackstone said about preambles:

"If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the fame point."

As for "bearing arms," apart from an odd usage of this term by Pennsylvania Anti-Federalists, there is little historical evidence to support the claim that this term was typically associated with the private use of arms. In fact, in virtually every use of the term tracked by scholars, which includes over a hundred examples, the phrase has a clear military meaning. And most early commentators on the 2nd amendment referred to it as a military right. Here is Joseph Story:

"The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights."

In 18th century lawmaking, the "people" means in their collective, civic sense. Here is the 1776 Pennsylvania constitution:

"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."

Bearing arms meant militia service. The Pennsylvania Constitution provided a separate provision protecting the right to hunt. If the arms bearing provision protected hunting there would have been no need to include this other provision.

Here is Madison:
"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe , which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain that with this aid alone, they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will, and direct the national force; and of officers appointed out of the militia, by these governments and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned, in spite of the legions which surround it."

The Founding fathers knew the difference between an armed mob and a well regulated militia. It was citizens organized as a militia under the control of their states that is the proper check on tyranny.

All this said, I don't really care what the original meaning of the 2nd amendment was. Because the world has changed and the framers clearly intended that the Constitution should change with it. Both through amendments and through interpretation. But if one wants to take an originalist approach, the collective, civic right to bear arms is clearly what was meant by the 2nd amendment, not an individual's right to have weapons for personal use.

Maybe we should argue the case in front of SCOTUS [img]/images/graemlins/grin.gif[/img].