Supreme Court to Overturn DC Gun Ban once and for all

[andyfox]

There are many contemporary examples where the use of the word "people" was in reference to collective, not individual, rights. For instance, the Pennsylvania Constitution says, "the people of this state have the sole, exclusive, and inherent right of governing and regulating the internal police of the same."

But the fact of the matter was that the Bill of Rights was added to the Constitution because those in favor of it feared, correctly, that without a Bill of Rights, it would not pass. The records of the deliberation in the states about the Constitution, as well as the text of the Constitution itself, show that the issue its adopters and detractors were addressing was the militia. The individual right to keep and bear arms was not present in the contemporary debate because it was not at issue and, consequently, not addressed in the Bill of Rights.

Had there been any reason for the federalists and anti-federalists to discuss the issue of the private, individual rights of ownership of firearms, certainly the record would indicate that discussion. It does not. It does show lots of discussion of militias, standing armies, conscientious objection to taking part in militia duty, and the fear of a powerful national government trumping citizens' militias.

[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.

[Metric]

[ QUOTE ]
Had there been any reason for the federalists and anti-federalists to discuss the issue of the private, individual rights of ownership of firearms, certainly the record would indicate that discussion. It does not. It does show lots of discussion of militias, standing armies, conscientious objection to taking part in militia duty, and the fear of a powerful national government trumping citizens' militias.

[/ QUOTE ]
This could also be interpreted as meaning that the protection of individual ownership of firearms was simply not controversial. I think you've said something very close to this. The fact that they were arguing over militas and standing armies may simply be an indication that this was a more sensitive and urgent subject -- nevertheless, the 2nd amendment could very much be interpreted as an individual right. One that, amongst other things, had consequences for the militias and standing armies.

[Keepitsimple]

I find it surprising that you still argue what men wrote and said 200 years ago. Modern religion?

[AlexM]

[ QUOTE ]
I find it surprising that you still argue what men wrote and said 200 years ago. Modern religion?

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Uhm, it's pretty important when it's the law. [img]/images/graemlins/confused.gif[/img]

[Keepitsimple]

I was too quick earlier.

I find it surprising the law hasnt been rewritten or revised in 200 years.

[andyfox]

That there was no discussion about it meant that it was not a reason for objection to the new proposed Constitution and thus it was not needed in the Bill or Rights. And that's why it's not there.

I'm actually in favor of using latitude to interpret the words of the Consitution in new ways as circumstances change. But originalists who claim this is what the 2nd amendment was intended to do--to protect an individual's right to possess weapons outside of the militia--are wrong.

[andyfox]

If the Supreme Court find that the law does not protedt an individual's right to possess arms for personal use, I would imagine that there will be a groundswell of support for either a new amendment or a rewriting of the second amendment. And that there would be a very good chance of success.

But I believe the Supreme Court will find that the second amendment does protect individual rights.

[John Kilduff]

[ QUOTE ]
That there was no discussion about it meant that it was not a reason for objection to the new proposed Constitution and thus it was not needed in the Bill or Rights. And that's why it's not there.

I'm actually in favor of using latitude to interpret the words of the Consitution in new ways as circumstances change. But originalists who claim this is what the 2nd amendment was intended to do--to protect an individual's right to possess weapons outside of the militia--are wrong.

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Let's for the sake of argument presume you are correct on this point.

If all males of age of that era were considered to be "the militia" (and I think that they were), then the 2nd Amendment was really drawing no meaningful distinction between "the militia" and "the people" (which could also explain how the terms could have been used interchangeably in the 2nd Amendment). If THAT is the case, then the founders simply presumed that "the people" = "the militia"...and vice versa.

It is the vice versa part that provides the sticky burr against your claim that individual rights were not protected, I think.

If "the people" are considered "the militia" I do see your point, but if "the militia" were also considered to be "the people", then the rights of all males of age to keep and bear ought to be considered protected as well. So the fact that the vice versa would have also been considered to be true, would have enlarged the scope of meaning to the greater group, rather than reducing the scope of meaning to the smaller group.

[andyfox]

You're putting way too much into this. Nobody was worried about individual rights to have guns for personal usage. That's why the Bill of Rights did not address this issue. They were worried about the increased power the newly consitutued federal government was going to have over the militia. That's what the amendment was about. That's why it talks about a well-regulated militia.

If one is an originalist, one cannot say that this amendment should confer individuals the right to own guns for personal usage. That's not what it says nor what was intended.