Up till now I've mainly asked questions. It's time I stated what my theory is and why.
I'd first like to point out that I've read thousands of posts and comments, for the most part from pro-gun writers, numerous articles and several books including ones by Professors Lott and Kleck. Although I don't think of myself as an expert by any stretch, this is what I've concluded, at least this is my opinion at this point. Feel free to consider it a work in progress.
In the late 18th century the 2nd Amendment was understood to guarantee the right to bear arms in order for small communities of men to band together, forming a militia, in order to protect themselves from standing armies, invading forces or federal government oppression. There was no such thing as the right to bear arms in order to protect oneself or one's home. The purpose was a collective one.
It's difficult to compare that society with today's. The factors at work back then have no relevance today except for extreme Libertarians and those referred to as "threepers." These are folks who really believe in protecting themselves from the federal government. Even they are wrong, however, they're really operating out of paranoia, grandiosity and fantasy, but at least for them it makes some sense. For the rest, the 90+% of gun owners, claiming the 2nd Amendment right to bear arms is nothing more than a manipulation, a wilful distortion in order to enjoy their "defense of last resort," as Denis Henigan calls it.
What's your opinion? Am I on the right track? Please leave a comment.
There was no such thing as the right to bear arms in order to protect oneself or one's home.
ReplyDeleteReally? Says who?
If you don't have the right to bear arms in defense of your own life and home how could you have the right to do so in defense of your State or Country?
You're claiming that if a British soldier came to kick in the door of the home of an American colonist he had no right to use his own flintlock or musket to defend himself, his life, and his family?
You've got to be joking MikeB.
BTW MikeB, I don't see much of a "theory" espoused in this post. The lack of substance is appalling.
ReplyDeleteIs this really the best you can do?
Mike W. asked, "You're claiming that if a British soldier came to kick in the door of the home of an American colonist he had no right to use his own flintlock or musket to defend himself, his life, and his family?"
ReplyDeleteI'm not claiming that at all. I'm saying the 2nd Amendment did not guarantee the right to individual ownership in and of itself, divorced from the militia idea, until more recent spinning and manipulating.
Alright Mike, they were granted the right to bear arms for protection. Yes the times have changed, and the reasons are different, but the principle is still the same. Protection. And I will add one thing you neglected.
ReplyDeleteNo, at this time I do not need protection from the native Americans, an invading army, or good ole Uncle Sam oppressing me. I do however need protection from different types wildlife, and or people meaning to do harm.
Mike where I work, you can wait up to an hour for the meat wagon to pick you up for another hour and a half ride to the hospital. We just had one guard mauled by coyotes. Another guard shot both coyotes, because one guard broke the rules about firearms on the job, they were able to start treatment on him quickly, rather than treating him for something he didn't have. On top of coyotes, we have bear and poisonous snakes to contend with.
The same goes with those who intend to do harm, to property or yourself as a person. I have been threatened before while at work, guards have been beaten and stabbed where I work. Other guards have been threatened, and face it mike, what is try for an ambulance is true for the police.
I understand full well that what I deal with on a daily basis is not what everyone deals with. Just the same, it is what it is. I carry to protect myself.
Of course one common thread between the late 18th century and today is hunting. We hunt now, we hunted then, and lets face it, the gun is the best weapon for it. We hunt for food, we hunt for game, and some of us whose state has issues with predators can make some money with it.
YEah by definition a theory must be supported.
ReplyDeleteCare to give you support of this theory? or shall it remain wild speculation?
MikeB302000,
ReplyDeleteIf the individuals didn't have a right to defend themselves, how could they band together to form a militia?
Pretty simple idea. Much like the instructions on an airplane in case of depressurization. See to yourself first, then your children/spouses or others, right?
In order to form a militia, each person had the right to keep and bear arms. In order to form a militia, each person had the right to defend themselves.
Even someone like you should be able to understand that!
I'm saying the 2nd Amendment did not guarantee the right to individual ownership in and of itself, divorced from the militia idea, until more recent spinning and manipulating.
ReplyDelete"This may be considered as the true palladium of liberty... The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible."
-St. George Tucker 1803
"s 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."
-Trench Coxe 1789
"The whole of the Bill (of Rights) is a declaration of the right of the people at large or considered as individuals.... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." - Albert Gallatin 1789
"No Free man shall ever be debarred the use of arms." - Thomas Jefferson
"Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms." James Madison, The Federalist Papers #46
"The Constitution shall never be construed....to prevent the people of the United States who are peaceable citizens from keeping their own arms" - Samuel Adams
"To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike especially when young, how to use them." - Richard Henry Lee 1788
"The great object is that every man be armed" and "everyone who is able may have a gun." Patrick Henry
"The people are not to be disarmed of their weapons. They are left in full possession of them." Zachariah Johnson
"Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?" Patrick Henry
_______________
Want more Mikey? There's literally thousands of them.
You have it sort of right, but you're misunderstanding a lot. The fact that a person had a right to own a gun for self-protection was utterly uncontroversial in 18th Century America, so during the constitutional debates, there wasn't much talk about it, because it wasn't an issue of contention. The Second Amendment was originally meant to address anti-federalist concerns that the federal government was being given plenary powers over the state militias. Many anti-federalists were concerned that since Congress was in charge of providing for, and disciplining the militia, they could use that power to neglect or disarm it. The Second Amendment was meant to deal with the latter concern. And as it is, Congress actually did end up neglecting the militia.
ReplyDeleteBut what the federalists did not do was assuage the anti-federalist concerns by removing Congress's powers over the militia, they assuaged it by guaranteeing the right to keep and bears arms for all citizens. Understand that at the time, the militia were civic organizations, rather than military organizations. Well, really, they were a hybrid of the two. We still have that militia today as a matter of statute, but we don't have it as a matter of culture. The law says I'm in the militia, but I've never been called to muster, nor been called to duty.
As the militia system slowly died out or was pushed aside in the 19th century, the guarantee of the Second Amendment became more focused on personal protection rather than preservation of the militia. By the time the 14th Amendment was ratified, this was the primary concern. As the debate shifted toward civil rights for blacks, personal protection became more paramount in the guarantee than militias, and you see that shift in the debates regarding the ratification of the 14th amendment. Read the McDonald briefs to see what I mean.
The guarantee for the purpose of self-defense was always there, it's just that wasn't the controversy in the 18th century and early 19th. By the time you get around to reconstruction, it does become the controversy, as the federal government wants to ensure that blacks are afforded the same rights as white Americans, especially the right to keep and bear arms, which southern governments were fond of denying blacks.
That's really just the very tip of the iceberg. There are entire books written on the subject.
And yet the founders were VERY clear that the militia was comprised of the whole body of citizens I.E. Americans (albeit only white, male, land-owning Americans)
ReplyDeleteFurthermore the Militia Acts of the time required INDIVIDUALS to bring their own PERSONALLY OWNED flintlocks, muskets, and ammunition.
If they had no individual right to own the weapons how in the hell were they expected to appear bearing them?
And Mike, that is exactly what you claimed by saying,
There was no such thing as the right to bear arms in order to protect oneself or one's home.
No right to bear arms to protect oneself or one's home is a pretty straightforward, declarative statement.
If they had no such right then clearly they had no right to defend themselves should a British soldier kick in their door.
You still haven't answered me as to how citizens could effectively defend their state and / or country if they had no right to do so with regards to their own lives and their own homes.
How can the people collectively defend against tyranny and or outside invasion with arms if they cannot, as individuals, defend themselves and their homes?
It's a simple question, try and come up with a substantive response.
My take, based upon what I have read:
ReplyDeleteYes, militias were the primary purpose of the RKBA (but not necessarily the only one) since that's the one mentioned in the Constitution.
So why grant the RKBA to the people and not to militias? First, people who joined a militia (when they were temporarily needed) often had to bring their own guns. Second, the Founders wanted a "well-regulated" milita. Look up the 18th Century definition of "regulated": and you find it synonymous with "practiced." Who is more likely to be well-practiced with guns -- those who already have owned guns because of the RKBA or those who have been prohibited to own private guns?
(As it turns out, the RKBA of the people was in itself inadequate to provide a sufficient pool of well-regulated people for armed forces. The NRA was founded in 1871 mainly to help rectify that.)
Some argue that the 2nd A is now obsolete, but of course many gunowners and Constitutional scholars disagree. Even so, obsolescence does not mean invalidation -- the 3rd A may be obsolete, but it remains in force. If government ever did wish for some reason to forcibly quarter soldiers in private homes it could not do so without repeal of the 3rd A.
As as the SC ruled in Heller (correctly, in my opinion and that of many Constitutional scholars) the prefatory militia clause does not limit the RKBA of the people in the operative clause to be restricted to that purpose only. If militias no longer require the RKBA of the people or if the RKBA of the people has become a liability, removal of the RKBA of the people would require a Constitutional Amendment. You may of course try -- as you may expect many gunowners and Constitutional scholars to argue against repeal.
You will find language regarding personal and self-defence in State Consitutional provisions.
ReplyDeleteThe Constitution regards Federal power and provides for the Common defense.
Self-Defence is a common law concept, hence a "pre-existing right". The commonly accepted concept of self-defence at the time of the Constitution had deadly force as a last resort such that there was a "duty to retreat".
If you consider that the "Right to Keep and bear arms" via the British Bill of Rights is common heritage to the US, Great Britain, Canada, NZ, and Australia, compare how those jurisdictions have handled "gun rights".
I'm not claiming that at all. I'm saying the 2nd Amendment did not guarantee the right to individual ownership in and of itself, divorced from the militia idea, until more recent spinning and manipulating.
ReplyDeleteThat is your major error. It has always guaranteed a right for individuals to own a firearm. That is plain in the language. It's just the drafters of the Second Amendment were more concerned about the distribution of military power, and the drafters of the 14th amendment were more concerned about freed blacks being able to defend themselves.
Mikeb...
ReplyDeleteSelf defense is a natural Right.
Do roses have the Right to have thorns?
Do venemous snakes have the Right to poison glands?
Do birds have the Right to build sturdy nests?
Do turtles have a Right to retreat into their shells?
The 2A is an affirmation that self defense is an intrinsic and inherint Right for all things on God's green earth.
Defense can occur collectively or individually.
The thorns of my neighbor will prick you just as bad, but if I am found all alone, I have thorns of my own.
I agree with your conclusion, Mike. That amendment was specifically for arming militias, not ordinary citizens in their houses.
ReplyDeleteRight on with this one!
Your collectivist theory fails to take into account "the people", which is understood as the individual throughout the constitution. Your theory is revisionist.
ReplyDeleteEnough said.
"In the late 18th century the 2nd Amendment was understood to guarantee the right to bear arms in order for small communities of men to band together, forming a militia, in order to protect themselves from standing armies, invading forces or federal government oppression."
ReplyDeleteOr do you mean,
In the late 18th century the 2nd Amendment was understood to guarantee the right to bear arms in order for small communities of men to band together with firearms issued by the british empire, forming a militia, in order to protect themselves from standing armies, invading forces or federal government oppression."
Just wondering.
Laci,
ReplyDeleteThe duty to retreat was part of common law self-defense, but there was more to it than that. If you read Blackstone's commentary on the subject, there was also a common law justification for homicide for killing someone in the commission of a felony. Duty to retreat only tended to come into play "upon sudden affray" as Blackstone said. Someone who, for instance, would shoot a home invader, or who would shoot a robber, was generally justified under common law without having to retreat.
Weer'D said, "Care to give you support of this theory? or shall it remain wild speculation?"
ReplyDeleteDo you mean like links and quotes and references? You know I don't go in for that sort of thing. Mine is just "wild speculation." You figured me out.
John, Thank you very much for the comment including this sentence, "I do however need protection from different types wildlife, and or people meaning to do harm."
ReplyDeleteI'm sure that's true and I'm sure that was true for some individuals in the 1790s. But that's not what the 2nd Amendment is about. At least it wasn't until recently.
kaveman, What does the addition of "with firearms issued by the british empire" have to do with it? You know you have to spell things out for me.
ReplyDelete"kaveman, What does the addition of "with firearms issued by the british empire" have to do with it? You know you have to spell things out for me."
ReplyDeletePrior to our Declaration of Independence, the colonists were largely British subjects.
If you believe that the right to self defense, either collectively or individually, is dependent upon government approval and government resources, then the colonists should have been equiped by the British crown in order to fight the British Redcoats.
Right?
kaveman, I think you're out on one of those tangents again.
ReplyDeleteDo I say the "right to self defense, either collectively or individually, is dependent upon government approval and government resources?"
I agree with your conclusion, Mike. That amendment was specifically for arming militias, not ordinary citizens in their houses.
ReplyDeleteThe people ARE the militia. Per the Militia Acts they were expected to appear bearing their own personal arms and ammunition.
I ask again, a simple question. If they had no right to keep arms in their own homes how were they going to appear adequately armed for militia service?
And how do you appear for militia service if you're murdered by the redcoats in your home because "There was no such thing as the right to bear arms in order to protect oneself or one's home?"
They didn't specifically codify a right to self-defense in the 2nd Amendment because it was common-sense. They never thought people would be stupid enough to claim there was no right to self-defense with a firearm.
"kaveman, I think you're out on one of those tangents again."
ReplyDeleteMy wording was not clear, and not directed squarly at you.
I was trying to illuminate the absurdity of a situation in which a government which has devolved into tyranny would be the same government required to supply the militia with weapons to fight tyranny.
Even that's not worded the way I want but I'm heading home on a friday and that will have to suffice.
MikeB - does it ever get old being flat out wrong on the time and unable to admit it?
ReplyDelete2nd Amendment was understood to guarantee the right to bear arms in order for small communities of men to band together, forming a militia, in order to protect themselves...
ReplyDeleteBased on your interpretation, how would the rights of the second amendment be exercised in a way that the government would not be allowed to infringe?
from standing armies,
We are supposed to fight the army?
invading forces
I can't imagine a government that would object to this part.
or federal government oppression.
When did we lose this right? Or do we still have it, subject to the oppressive government's determination of what arms and what circumstances are appropriate, and what actually constitutes a militia?