Supreme Court to Overturn DC Gun Ban once and for all

[John Kilduff]

As you know, Andy, I disagree with your interpretation of the 2nd Amendment; but we needn't rehash those points of dispute now.

Perhaps more importantly: the underlying principle of the Bill of Rights is not to grant rights to people or states, but rather to reiterate and emphasize those rights which already inherently exist, as per the principles upon which the USA was founded.

If there were no Bill of Rights, or 4th Amendment, the right of people to be secure against unreasonable searches would still exist in the USA.

If there were no Bill of Rights or 1st Amendment, the right of the people to peacably assemble would still exist in the USA.

So: the 2nd Amendment does not confer the right to keep and bear arms; it merely re-affirms it. It does not limit that right, either, because it cannot limit without also having conferred in the first place.

Whether your interpretation of the militia clause is correct or not, is immaterial, because the right to keep and bear exists irrespective of the Bill of Rights and 2nd Amendment. It is like the inherent right to the pursuit of happiness, or like the right to freedom of expression, or like the right of freedom of association.

As the 9th Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

As the 10th Amendment says, "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."

The Constitution is essentially a timeless document, because history repeats itself, and in spans even much longer than the 200+ years of the USA: the founders knew well the dangers of government tyranny, and did their best to prevent it with the drafting of the Constitution.

It would be folly to presume that civilization, or America, have now so far advanced that the masses no longer need the means to resist potential government tyranny.

Also, the militias of that era past were NOT under control of the state governments in the manner in which today's National Guards are.

The most basic purpose of the Constitution is to prevent government tyranny. The most essential means of preventing tyranny is for the people, in widespread fashion, to have the means to resist it. Therefore it would be ludicrous to think that the founders intended for the common people to be deprived of their inherent right to freely bear arms.

They went so far as to reiterate this right in the Bill of Rights, but as one founder feared, the Bill of Rights may have been a bad idea, because people would take it to mean that rights not expressed in it, did not exist; or would take it to mean that it in itself conferred rights: but those rights of the people exist independently and inherently. IMO this is exactly the trap people into which politicians and courts have fallen regarding the Bill of Rights: first they erroneously presume it confers rights, then they try to interpret the rights which it "confers". IMO this is what you are doing with your interpretation of the 2nd.

You don't really think that there would be no right to keep and bear if there were no 2nd Amendment, do you? How about the right to peacably assemble, or to petition government for redress of grievances? You don't think the wording of the Bill of Rights defines or limits those rights, do you? Or that it was intended to define or limit any such rights?

Thanks for reading.

[wacki]

Ok lets try to find something we can agree on. Would you agree that Alexander Hamilton, a man that signed the original constitution, believes it is (or at least should be) a natural and individual right?

If the representatives of the people betray their constituents, there is then no recourse 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 entrusted 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.
-- Alexander Hamilton, Federalist No. 28


Now to pin down the conversation to a manageable size. Madison said:

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation,

Now in order to understand this statement it would be prudent to analyze the firearm laws of other European countries and assume that Madison believes American gun laws are far more relaxed. Would you disagree or agree with this simple statement?



Also regarding Madison's statement on RKBA:
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 <u>additional</u> advantages of local governments chosen by themselves.... 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.

This phrase is something that no sane person would disagree with. A revolting army attempting to overthrow a tyrannical government would greatly benefit another it from some form of government help. That help can come from another nation, state governments or a simple small town council that's willing to feed local guerrilla troops. That statement of Madison's you quoted is something I agree with in full. Since I agree with this statement in full your claim that Madison's statement proves that the 2A is an not an individual right is the same as claiming I do not believe the 2A is an individual right. And that simply is not the case. And since you seem to fixate on grammatical specifics I would like to point out that he claims government direction of the militia is an "additional" meaning which is equivalent to separate advantage. This "additional" advantage, using his words, is merely something that increases the success rate of the militia from "not certain" to "affirmed with the greatest assurance".

[ QUOTE ]
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.

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Well you've made it clear in the past that you don't care what the intent of the founding fathers was. A state of mind that carks me but whatever, this country is still free enough to allow people to have their own opinions. But if you are going to have an opinion on what the "originalist approach" is and criticize people who deviate from that philosophy then I hope I don't need to tell you that it is pretty important that do you know what the intent of our founding fathers was. But I suspect I'm simply jumping on you for not wording your posts carefully.

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Maybe we should argue the case in front of SCOTUS.

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That would be fun as well as didactic. I'm sure you would be a formidable opponent. Unfortunately lack of formal training would more than likely make the trial look like the beginning of My Cousin Vinny. :-D

[andyfox]

"if you are going to have an opinion on what the 'originalist approach' is and criticize people who deviate from that philosophy . . ."

It's not a philosphy that I am criticizing. I'm criticizing the idea that the wording of the second amendment, and the idea behind it, was considered, at the time of its composition, to refer to an individual right. Almost all of the discussion and debate about it was carried on in the context of militias and standing armies.

I fail to see how the quoted passage from Federalist 28 shows that Hamilton believes gun ownership to be an individual right enumerated in the 2nd amendment. But it' late and I'm tired so I'll re-read it tomorrow.

Have a good night, and a great Thanksgiving.

[abatis]

[ QUOTE ]
Poster: andyfox

I'm criticizing the idea that the wording of the second amendment, and the idea behind it, was considered, at the time of its composition, to refer to an individual right.

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What then is the explanation of Tench Coxe's writings 10 days after Madison's introduction of the proposed amendments explaining what they meant? 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? Coxe explained the 4th article of amendment this way:
<ul type="square">"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally 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."

Remarks on the First Part of The Amendments to the Federal Constitution, FEDERAL GAZETTE, June 18, 1789, at 2, col. 1[/list]Coxe sent a copy of his commentary to Madison on the same date and as Halbrook and Kates write:
<ul type="square">Madison wrote back acknowledging “Your favor of the 18th instant. The printed remarks inclosed in it are already I find in the Gazettes here [New York].” Madison approvingly added that ratification of the amendments “will however be greatly favored by explanatory strictures of a healing tendency, and is therefore already indebted to the co-operation of your pen.”

Madison apparently saw Coxe’s defense of the amendments in the New York Packet the day before he wrote to Coxe. The Coxe article was also prominently displayed on the first page of the July 4 celebration issue of the Massachusetts Centenial, and was no doubt reprinted elsewhere.

Tench Coxe and the Right to Keep and Bear Arms, 1787-1823, 7 William &amp; Mary Bill of Rights Journal, Issue 2, 347-99,(Feb. 1999) [pgs, 16 - 17, footnotes removed, link goes to a pdf file][/list]

[andyfox]

"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.

[andyfox]

"Would you agree that Alexander Hamilton, a man that signed the original constitution, believes it is (or at least should be) a natural and individual right?"

No. I've re-read Federalist 28 and it concerns itself with anti-federalists' concerns over a national military and says absolutely nothing about individual rights to have guns for personal usage.

"Madison believes American gun laws are far more relaxed. Would you disagree or agree with this simple statement?"

I think so, yes.

"Also regarding Madison's statement on RKBA . . ."

I've read this a few times, without it sinking in; sorry to be dense, don't understand your point in this section.

As to the framers original intent: it is generally impossible to ascertain. They were not of one mind, the Constitutional Convention was conducting in secrecy, and the fact that the framers were so soon at each others throats over the meaning of the various Constitutional provisions and what was therefore legal or not, shows that a jurisprudence of original intent is fraught with difficulty. The vague phrases of the Constitution, written by men who took great care in their use of language, were meant to be vague and therefore interpreted as exigencies warranted. To say, as does Judge Scalia, that since capital punishment was not "cruel and unusual" punishment at the time the phrase was penned, and that, therefore, it cannot be considered such now, strikes me as silly.

But with the 2nd amendment, the individual rights people say that's what the amendment was intended to protect. There is a lot of evidence that it was not. So their position cannot be justified on an originalist interpretation.

[wacki]

[ QUOTE ]
"Would you agree that Alexander Hamilton, a man that signed the original constitution, believes it is (or at least should be) a natural and individual right?"

No. I've re-read Federalist 28 and it concerns itself with anti-federalists' concerns over a national military and says absolutely nothing about individual rights to have guns for personal usage.

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Then would you mind telling me what Hamilton meant when he said "original right of self-defense"? What is an "original" right?

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"Madison believes American gun laws are far more relaxed. Would you disagree or agree with this simple statement?"

I think so, yes.

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Finally, something we agree on. I've read a lot of books on the history of firearms and gun control. I'd have to go book digging to be 100% confident but I'm rather confident right now that the good citizens of UK, Sweden, Finland, Australia, New Zealand, Germany and likely 4 other European countries enjoyed the rights of civilian ownership of firearms with little or even in some cases no restrictions when the constitution was signed. If I go through the law books and document this it would be a thorn in the side of the collective right advocates. If other countries had individual rights then a collective right reading of Madison's statement would surely be falsified.

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"Also regarding Madison's statement on RKBA . . ."

I've read this a few times, without it sinking in; sorry to be dense, don't understand your point in this section.

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I'll try to break this down:
*Madison called the aid of government an "additional" meaning separate and supporting advantage to RKBA. Just because you have one does not mean the other is automatically required. It only increases the odds of success.
*This "additional" and supporting argument is something I've used to support the notion of the variability utility of an individual RKBA. I find it odd that one would use an argument I find supportive as unsupportive.
*Nowhere in Madison's statement does he say that it's unlikely that a militia without government aid is unlikely to trump tyranny. He merely says it is uncertain but with local government aid it is "greatest assurance" to succeed.
*The notion that average civilians cannot overthrow an army is one that is commonly used against RKBA. It is used back then and it is used now. In my view, Madison was simply addressing this anti-RKBA argument.


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But with the 2nd amendment, the individual rights people say that's what the amendment was intended to protect. There is a lot of evidence that it was not. So their position cannot be justified on an originalist interpretation.

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Well, you can keep saying that the pro-RKBA position cannot be justified and we can engage in an Dr. Goebbels argumentum ad nausium style debate but that would be a waste of time. You consider some of the very arguments I use to defend the 2A, which are also used by Madison, as evidence that the 2A is not individual. I certainly do not hold an anti-RKBA position so for you to claim that I do hold an anti-RKBA position is silly to me. And that is what you are doing. So maybe we should raise the bar on what "a lot of evidence" means. I have yet to see a founding father quote that seems strongly and obviously worded in the way you think it is. On the other hand I doubt any sane person would argue this is the case with Thomas Jefferson, Patrick Henry, George Mason, Zacharia Johnson and several others.

And it is clear that Alexander Hamilton thought the militia was not under control of either state or federal government expect when "called out"

The militia is a voluntary force not associated or under the control of the States except when called out; [ when called into actual service] a permanent or long standing force would be entirely different in make-up and call. in Federalist Paper No. 28

The President, and government, will only control the militia when a part of them is in the actual service of the federal government, else, they are independent and not under the command of the president or the government. The states would control the militia, only when called out into the service of the state, and then the governor would be commander in chief where enumerated in the respective state constitution. -- Federalist Paper No. 69
http://www.famous-quote.net/alexande...n-quotes.shtml

So if you would mind telling me how voluntary force not controlled by or even "associated" with state or federal government is not an individual right I am all ears. Please inform me how Alexander Hamilton would have considered this anything but an individual right.

[andyfox]

Hamilton was addressing anti-federalists' concerns that they would be more susceptible to government tyranny from the federal government than they would be from their state governments. He is talking about military and militia defense; this he mentions in each of the four paragraphs preceding the one in which he mentions "that original right of self-defense."

Madison, in Federalist 46, is clearly talking of a militia. Here is the entire passage in question, which is usually elided in individualist arguments:

"The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. 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. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. 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. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it."

Madison was addressing the concern that anti-federalists had that "the federal government may previously accumulate a military force for the projects of ambition." And he then explain how, as unlikely as this is, if perchance it did occur, the people, organized in "a militia amounting to near half a million of citizens with arms in their hands" would defeat that ambition. "A militia . . . with arms in their hand."

As for George Mason, he was a wealthy Virginia planter who feared the "rabble." Hi vision of the militia reflected his patrician values and the traditional Whig ideals that praised the militia ideal and believed that social stability required than an armed citizenry be led by "gentlemen of the first fortune and character." Here is what he drafted for the Fairfax County Committee of Safety:

"Resolved, That this Committee do concur in opinion with the Provincial Committee of the Province of Maryland, that a well regulated Militia, composed of gentlemen freeholders, and other freemen, is the natural strength and only stable security of a free Government."

Without the guidance of gentlemen, an armed population might easily become a mob, not a well-regulated militia. This was not a man who believed in unlimited individual rights to have personal weapons.

The issue is not whether serving in the militia was an individual right. It is whether what was being dealt with in the second amendment was an individual right.

It's late, I'm tired, and I think, between what we've posted here and what we posted back in March, we've done enough. Or at least I'm about done. So please have the last word and we'll revisit again, I'm sure, when SCOTUS hands down their decision that the second amendment guarantees the personal right to keep and bear arms.

[andyfox]

The basic purpose of the Constitution was not to prevent government tyranny. In fact, the most beloved portions of the Constitution, I'm sure we all agree, appear in the Bill of Rights. The Constitutional Convention made a conscious decision not to give the new federal charter a Bill of Rights. It was when the Constitution was sent out to the states for ratification that many Americans were aghast that the document enumerated the powers of government but not the rights of citizens. And they were aghast that as the ratification battle continued, the supporters of the Constitution continued to resist the idea of a Bill of Rights.

The supporters of the Constitution were afraid that the effort to amend it with a Bill of Rights in order to protect civil and states' rights would cancel the purpose of their effort--to strengthen the federal government. The most compelling motive for the framers of the Constitution was not to safeguard liberty from the tyranny of the federal government. As Alexander Hamilton said, he and many other Americans were growing "tired of an excess of democracy."

The discussion at hand is whether the 2nd amendment is referring to an individual right to keep and bear arms of the right to do so collectively for military purposes, whether one accepts your argument that the individual right is inherent and thus cannot be granted by the Constitution or not.

The framers did not venerate unrestrained liberty. What they sought was "well regulated" liberty. The individual states had lengthy militia statues; these constituted the largest body of law dealing with firearms. These regulations could be quite intrusive, allowing government not only to keep track of who had firearms, but also requiring citizens to report to muster or face stiff penalties. The individual colonies used their police powers to regulate the nonmilitary use of firearms in a variety of ways. Regulations governing the storage of gunpowder were among the most common. States also prohibited the use of firearms on certain occasions and in certain locations. And the states retained the right to disarm groups deemed to be dangerous.

The states considered their authority over civilian gun use to be greater than that over "bearing arms." During his time as a legislator in Virginia, James Madison proposed a stiff penalty for individuals who hunted out of season. Madison proposed that a person who "shall bear a gun out of his inclosed ground, unless whilst performing military duty" should be penalized. As Madison's language clearly shows, he understood the differences between bearing a gun for personal use and for the common defense; and he felt the state clearly retained the right to regulate the use of firearms and differentiated between the level of restrictions that might be placed on bearing a gun (i.e., for personal use) and bearing arms (i.e, for defense in a militia).

It is not ludicrous to think that "the founders intended for the common people to be deprived of their inherent right to freely bear arms." In fact, the right to travel armed was severely constrained under common law. The author of English Liberties, of the Free-born Subject's Inheritance, a popular English legal text reprinted in the colonies, defined an affray as a crime against the king's peace and that "constables may take away the Arms of them who ride or go armed in Terror of the People."

[Metric]

Andy, just what "right of the people" does the 2nd amendment protect, in your mind? I certainly agree that "bearing arms" could be used in many contexts to mean "military action," but the concept of protecting the government's right to perform military action seems ridiculous to me -- it's certainly not some fragile "right of the people" that needed a specific constitutional amendment in order to protect.

Additionally, "keeping" arms doesn't seem to imply any military action. If we're also acknowledging that the 2nd amendment protects the right of the people to keep arms, I find it very difficult to force this into a "military action only" context -- the concept of "keeping arms" seems to specifically imply that they're not going to be in active use all the time.

Also, citing the fact that books on English common law were reprinted in the colonies to provide support for interpreting the 2nd amendment as a right of the government doesn't seem very convincing, to me.