Supreme Court to Overturn DC Gun Ban once and for all

[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.

[andyfox]

He's flat out wrong.

There never was any "absolute" right to gun ownership. And nobody's saying that "people shouldn't have the right to bear arms in today's world." (Well, at least I'm not.) What I'm saying is that the 2nd amendment does not address the individual right to have arms outside of a militia context.

He's wrong about "the people." The people were the miltia. Elbridge Gerry said "whenever government means to invade the rights and liberties of the people, they always attempt to destroy the militia." That's why the 2nd amendment addressed people's concerns about the militia. That's why the preamble refers to a militia, to explain what the main clause it talking about. Nobody who reads the debates about the Constitution can come to any other conclusion.

[jogsxyz]

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Better question, isnt there a pretty big difference between "a state" and "DC?" I'm embarrassed to say that I live in DC and I dont know the answer.

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What happens when you vote for the president? What happens to the votes of the DC voters?

[wacki]

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"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.

[John Kilduff]

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He's flat out wrong.

There never was any "absolute" right to gun ownership. And nobody's saying that "people shouldn't have the right to bear arms in today's world." (Well, at least I'm not.) What I'm saying is that the 2nd amendment does not address the individual right to have arms outside of a militia context.

He's wrong about "the people." The people were the miltia. Elbridge Gerry said "whenever government means to invade the rights and liberties of the people, they always attempt to destroy the militia." That's why the 2nd amendment addressed people's concerns about the militia. That's why the preamble refers to a militia, to explain what the main clause it talking about. Nobody who reads the debates about the Constitution can come to any other conclusion.

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First off, everywhere else in the Constitution, where it says "the People", it means the people, not "the militia". It would have been easy enough for the founders to have written "the right of militia members to keep and bear arms shall not be infringed" -- but they didn't, they wrote, "the right of the People to keep and bear arms shall not be infringed". Same exact number of words, no reason in the world they couldn't have written "the right of the militia" instead of "the right of the People" if indeed that was what they meant.

You are also twisting the English language and straining logic beyond any reasonable bounds by elsewhere concluding that giving a reason for an Amendment means also that absent that reason, the Amendment is not to apply. You might just as well commit the obvious logical fallacy of claiming that "A, therefore B" also implies "If not A, then not B". Well I sincerely hope you don't think that "A, therefore B" implies "if not A, then not B". Argumentation in this fallacious form is called

Denying The Antecedent

"Definition:

Any argument of the following form is invalid:

If A then B
Not A
Therefore, Not B"

EDIT: Maybe I am remembering incorrectly and you did not elsewhere make the second fallacious argument above. If not, then it is addressed to whomever may have made it instead of being addressed to you [img]/images/graemlins/smile.gif[/img]

[andyfox]

"everywhere else in the Constitution, where it says 'the People', it means the people, not "the militia"."

That's because everywhere else it's not necessarily referring to the militia. All able-bodied adult males were required to muster; the militia was a very important part of everyday life. The framers didn't say "able-bodied white males" either, but that's what they meant.

And everywhere else "people" does not mean all the people. Many people were excluded from "we the people."

As for your A and B argument: nobody is saying that there might not be a right of people to have arms for personal use. But that's clearly not what the second amendment is talking about. Nobody at the time was worried that the government was going to take away people's hunting arms. They were worried about the militia either being disarmed or made impotent by a strong federal government with either a national militia, or control over the state militias, or a standing army. The clear intent of the second amendment, as evidenced by its preamble referring to the militia, and by the discussion and debates that occurred at the time, shows that it was clearly intended not to refer to a personal right, but rather in a military sense.

Now it so happens, I believe in a living Constitution. So if you were to argue to me that the words can be applied today so that they can be interpreted as a personal right, I might be more amenable to that argument A(although I believe I would reject it because the clause is not deliberately vague). But to tell me that the original intent of the amendment had a personal rights meaning because clause B does not need clause A to stand alone is erroneous as a study of the context in which the debates about it were discussed.

[Metric]

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They were worried about the militia either being disarmed or made impotent by a strong federal government with either a national militia, or control over the state militias, or a standing army. The clear intent of the second amendment, as evidenced by its preamble referring to the militia, and by the discussion and debates that occurred at the time, shows that it was clearly intended not to refer to a personal right, but rather in a military sense.

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As has been pointed out by others, they may indeed have been "worried" about this possibility (and I think you are probably right that it was foremost in their minds), but that doesn't mean that "the people" = "militia members only". They might have been worried about any number of things, and the preamble could have been about anything at all ("George Washington having false teeth, the right of the people to keep and bear arms shall not be infringed.") -- but it is still the right of the people that is being reaffirmed, not the right of any collective organization. The preamble is more of an assumption or justification -- i.e. we assume that this right is going to strengthen non-federal militias, and is necessary for the security of a free state, therefore...

[John Kilduff]

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"everywhere else in the Constitution, where it says 'the People', it means the people, not "the militia"."

That's because everywhere else it's not necessarily referring to the militia. All able-bodied adult males were required to muster; the militia was a very important part of everyday life. The framers didn't say "able-bodied white males" either, but that's what they meant.

And everywhere else "people" does not mean all the people. Many people were excluded from "we the people."

As for your A and B argument: nobody is saying that there might not be a right of people to have arms for personal use. But that's clearly not what the second amendment is talking about. Nobody at the time was worried that the government was going to take away people's hunting arms. They were worried about the militia either being disarmed or made impotent by a strong federal government with either a national militia, or control over the state militias, or a standing army. The clear intent of the second amendment, as evidenced by its preamble referring to the militia, and by the discussion and debates that occurred at the time, shows that it was clearly intended not to refer to a personal right, but rather in a military sense.

Now it so happens, I believe in a living Constitution. So if you were to argue to me that the words can be applied today so that they can be interpreted as a personal right, I might be more amenable to that argument A(although I believe I would reject it because the clause is not deliberately vague). But to tell me that the original intent of the amendment had a personal rights meaning because clause B does not need clause A to stand alone is erroneous as a study of the context in which the debates about it were discussed.

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Even if the rightful focus was, and should be, on the preamble (which I doubt, but let's for the sake of argument grant this), the plain words of the 2nd Amendment assert that the right of the People (not the right of the Militia) to keep and bear arms shall not be infringed.

The founders used the word "people" not the word "militia" in the clause that speaks of rights: if they had meant "militia" there, why would they not have used "militia" there???

Moreover it doesn't change things, even if their intent was as you suggest: in the right-to-keep-and-bear clause, they used the word "People" not "Militia", so that's what the clause clearly states. Therefore, the right is assigned to the People, period.

Your argument is like saying, "Well, they wrote "house" but they meant "stable": so, we will replace "house" with "stable" in the second clause, even though in the first clause they did use "stable" where they meant "stable".

I don't believe the founders were such poor writers as to have been incapable of choosing the word that best fit their intended meaning. In the 2nd Amendment, they used "militia" where they meant "militia", and they used "people" where they meant "people". It really isn't more complicated than that. If they had meant "militia" through and through, they would have used that word alone, instead of confounding the issue.

Example again: even if they erred, and really meant "stable" where they wrote "house", they wrote "house: so, house it is. They wrote that the right of the People shall not be infringed. Maybe they meant Militia but they wrote People. It really can't get much clearer than that.

Thanks for your responses, and for reading.

[andyfox]

That's not what preambles were in the 19th century. They were specifically recognized as germane to the meaning of the subsequent clause or sentence. Tosay the preamble could have said anything and it doesn't effect the meaning of the subsequent clause is simply wrong.

There was no concern that the newly organized federal government was going to disabuse citizens of their hunting rifles. Thus there was no reason for the Bill of Rights to address the issue.