2nd Amendment ---- and other superfluous provisions

[wacki]

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Aymette v. State (1840), involved the constitutionality of a Tennessee law against bowie knives. The court said that the only weapons entitled to constitutional protection were those connected with the militia. Bearing arms, the court concluded, referred to an activity that was exclusively military in nature:

"A man in the pursuit of deer, elk, and buffaloes, might carry his rifle every day, for for forty years, and yet, it would never be said of him, that he borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk, or pistol concealed under his clothes, or a spear in a cane."

Although the court acknowledged that militia weapons were constitutionally protected, it accepted that the state could still regulate the manner in which these weapons might be kept or borne. Weapons that had little connection to military prepareedness were not given any constitutional protection. In the view of the Aymette court, the legislature enjoyed the widest possible latitude to regulate pistols or other weapons that had negligible value in promoting the maintenance of a well-regulated militia.
http://www.cs.cmu.edu/afs/cs.cmu.edu...te_v_state.txt

Two years later, in State v. Buzzard, the Arkansas Supreme Court held that the purpose of bearing arms was not to "enable each member of the community to protect and defend by individual force his private rights against every illegal invasion." Protection of this estimable right was intended to "enable the militia to discharge" their important public trust." http://www.guncite.com/court/state/4ar18.html

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Well this is something I haven't seen before. Thanks for taking the time to research this. It looks like I have some law professors to email.

[wacki]

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Grammar and language usage was different then than now. Madison's original proposed amendment, with its semicolons, and the actual amendment, with its--to us--stilted language, is what has made for the debate over the years.

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As I said before you should look at all of the versions of the 2A that were shot down. This argument can easily go both ways.

Also the 14th amendment said: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

Then there is this:

"Alongside ...the Civil Rights Act of 1866 ... Congress passed the Freedman's Bureau Act, a sister statute introduced the same day by the same sponsor. ... The Freedman's Bureau Act affirmed that 'laws ... concerning “personal” liberty, “personal” property, “personal” security, and the acquisition, enjoyment and disposition of estate, real and “personal, including the constitutional right to bear arms”

So even if the 2A wasn't a "personal" right you have a problem because the 14th sure as hell seemed to make it a personal right.

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While I have an opinion on the subject, I am not commenting on the wisdom of people being able to own personal weapons or not. I am saying that interpreting the 2nd amendment as guaranteeing people the right to personal arms is dead wrong.

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Meh, I've def learned a few things from your posts but you really need to watch at least parts of that documentary.

Here is a nice image for you:




[img]/images/graemlins/grin.gif[/img]

[hmkpoker]

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But if there's no well-regulated militia--its duties today being done by the police, the military, the national guard, etc.--what need for the weapon?

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To keep the police, the military and the national guard in check.

Getting rid of citizens' rights to bear arms means that all arms will be held by the government. This creates an imbalance of power in the government's favor. Why do you want to create a police state, Andy?

[wacki]

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But if there's no well-regulated militia--its duties today being done by the police, the military, the national guard, etc.--what need for the weapon?

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To keep the police, the military and the national guard in check.

Getting rid of citizens' rights to bear arms means that all arms will be held by the government. This creates an imbalance of power in the government's favor. Why do you want to create a police state, Andy?

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Also Andyfox's assumption is that the cops are doing their job. Obviously this is not always the case:


(B) Former Florida Attorney General Jim Smith told Florida legislators that police responded to only 200,000 of 700,000 calls for help to Dade County authorities.

(C) The United States Department of Justice found that, in 1989, there were 168,881 crimes of violence for which police had not responded within 1 hour.”

http://thomas.loc.gov/

One of the points of the 14th amendment was to allow black people to protect themselves from the KKK because the police sure weren't going to do it.

[betgo]

The official slave patrols before the Civil War, which were the precursors of the KKK, would search slave quarters for any weapon, not just fire arms, as well as any written material, not just antislavery pamphlets. The would look for any group of slaves congregating. Any slave wandering about without a pass from his master would be whipped.

Therefore the 14th Ammendment might be seen as giving blacks the same 2nd Ammendment rights as the whites had.

[andyfox]

The conclusion I'm drawing is that Jefferson's language was clearly intended to protect the private right to have weapons; the "keep and bear arms" language was clearly intended to refer to militia and other military activity. I'm not saying that had Jefferson's language been more moderate it too would have been rejected; perhaps there would have been an acceptance of an individual right to have weapons for personal usage. But the "keep and bear arms" language, as all the debate about it shows, was not intended to apply to personal weapon possession or usage.

As far as "For the common good" being in the original language of the proposed second amendment: Madison's 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."

Some in Congress wanted to add that the purpose of the militia was to provide for the common defense (not that people could have arms for the common good). For those who feared the new federal power, inclusion of this language would have seemed ominous. They feared it would provide a basis for unscrupulous leaders for prohibiting the miltia from defending the states or localities from external or internal threats. Virginia had two ardents states' rights senators and they would have viewed this as a dangerous concession to the federal government. Virginians were especially worried that federal control of the militia would threaten their state's ability to put down insurrections, since they had such a large slave population. That's why that phrasing was shot down.

[andyfox]

Their gun rights only insofar as those rights were concerned with militia participation. State governments have always had statutes limiting possession and usage of personal weaponry.

[Zeno]

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That's why that phrasing was shot down.

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Interesting way to phase your point. [img]/images/graemlins/smirk.gif[/img]


Madison was verbose to the point of distraction at times and his initial formulations for amendments were worked over and consolidated, for example the first amendment is a consolidation of three separate proposed changes that Madison recomended. For example his initial proposed freedom of the press was:

"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."

Madison had to add an explanation, just as he did for his 'right to bear arms' proposal. It was his initial formulation that was never rewritten wholly, just tweaked about the margins and fondled over some, that has added to the confusion about this amendment. If they had started with Jefferson's statement then the text would have oozed clarity (or as much clarity that language can ooze).

As a side bar it is intersting that Madison also purposed this modification to the constitution that was never adapted -

"Fifthly; That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit:

No state shall violate the equal rights of conscience, or the freedom of the press, or the trail by jury in criminal cases."

One more thing to add that has some bearing on this discussion, just prior to his 'Fifthly' quoted above Madsion has a paragraph [this is taken from his constitutional amendments speech] that is of some interest, to wit:

"The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution."

Wisely put and echoed in the ninth amendment of the Bill of Rights.

-Zeno