Supreme Court to Overturn DC Gun Ban once and for all

[wacki]

[ QUOTE ]

So if Scalia really wants our laws to reflect the reality of what they meant when they were passed, he will not vote to uphold the right of an individual to own guns based on the 2nd amendment.

[/ QUOTE ]

There are a lot of letters, articles, quotes etc from the founding fathers and reporters of the time that strongly disagree with your reading of the 2A. Some of their opinions are documented in this documentary DVD:

http://www.secondamendmentdocumentary.com/

It would be dishonest to claim Patrick Henry, Thomas Jefferson or Alexander Hamilton supported the regulation of arms. As for each and every individual signor of the constitution well there is room for debate. But even James Madison seems to read the Constitution differently than you do:

"[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms."
--James Madison, The Federalist Papers, No. 46
http://www.gmu.edu/departments/econo...otes/arms.html

Here are a lot of law professors that flat out disagree with your reading of the the 2A:
http://www.youtube.com/watch?v=TxwNeViNW0Q

I also don't read the 2A the same way you do. It appears to me that your argument is based mostly off of a semicolon and not expressed opinions of those who drafted the Constitution. So until new information comes to light I guess we will simply have to agree to disagree.

[wacki]

And just in case Andyfox still doesn't believe the "father of the Constitution" here are some more fun quotes:

"The people are not to be disarmed of their weapons. They are left in full possession of them."
-- Zacharia Johnson, delegate to Virginia Ratifying Convention, Elliot, 3:645-6


And then there is this little timeline:

Following the revolution but previous to the adoption of the Constitution, debates over militia proposals occupied a large part of the political scene. A variety of plans were put forth by figures ranging from George Washington to Baron von Steuben. 32 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. In this respect, this "select militia" was the successor of the "trained bands" and the predecessor of what is today the "national guard". In the debates over the Constitution, von Steuben's proposals were criticized as undemocratic. In Connecticut on writer complained of a proposal that "this looks too much like Baron von Steuben's militia, by which a standing army was meant and intended." 33 In Pennsylvania, a delegate argued "Congress may give us a select militia which will, in fact, be a standing army — or Congress, afraid of a general militia, may say there will be no militia at all. When a select militia is formed, the people in general may be disarmed." 34 Richard Henry Lee, in his widely read pamphlet "Letters from the Federal Farmer to the Republican" worried that the people might be disarmed "by modeling the militia. Should one fifth or one eighth part of the people capable of bearing arms be made into a select militia, as has been proposed, and those the young and ardent parts of the community, possessed of little or no property, the former will answer all the purposes of an army, while the latter will be defenseless." He proposed that "the Constitution ought to secure a genuine, and guard against a select militia," adding that "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." 35

The suspicion of select militia units expressed in these passages is a clear indication that the framers of the Constitution did not seek to guarantee a State right to maintain formed groups similar to the National Guard, but rather to protect the right of individual citizens to keep and bear arms. Lee, in particular, sat in the Senate which approved the Bill of Rights. He would hardly have meant the second amendment to apply only to the select militias he so feared and disliked.

Other figures of the period were of like mind. In the Virginia convention, George Mason, drafter of the Virginia Bill of Rights, accused the British of having plotted "to disarm the people — that was the best and most effective way to enslave them", while Patrick Henry observed that, "The great object is that every man be armed" and "everyone who is able may have a gun". 36

Nor were the antifederalists, to whom we owe credit for a Bill of Rights, alone on this account. Federalist arguments also provide a source of support for an individual rights view. Their arguments in favor of the proposed Constitution also relied heavily upon universal armament. The proposed Constitution had been heavily criticized for its failure to ban or even limit standing armies. Unable to deny this omission, the Constitution's supporters frequently argued to the people that the universal armament of Americans made such limitations unnecessary. A pamphlet written by Noah Webster, aimed at swaying Pennsylvania toward ratification, observed.

[ QUOTE ]
Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword, because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. 37

[/ QUOTE ]

In the Massachusetts convention, Sedgewick echoed the same thought, rhetorically asking an oppressive army could be formed or "if raised, whether they could subdue a Nation of freemen, who know how to prize liberty, and who have arms in their hands?" 38 In Federalist Paper 46, Madison, later author of the Second Amendment, mentioned "The advantage of being armed, which the Americans possess over the people of all other countries" and that "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 much more here:
http://www.constitution.org/mil/rkba1982.htm

The more I read about the people who were involved in the drafting and ratification of the constitution the more convinced I am that your position is flat out wrong.

[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].

[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.

[/ QUOTE ]

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.

[ QUOTE ]
Maybe we should argue the case in front of SCOTUS.

[/ QUOTE ]

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.

[/ QUOTE ]
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]

"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.

[/ QUOTE ]

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

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

I think so, yes.

[/ QUOTE ]

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.

[ QUOTE ]
"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.

[/ QUOTE ]

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.


[ QUOTE ]
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.

[/ QUOTE ]

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]

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."