In this connection, however, I need to say something about a recent popular misconception concerning Patrick Henry’s legacy and the genesis of the Second Amendment, which states, “A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” Despite efforts of a number of misguided scholars to construe this language as justifying individual, unregulated gun ownership, I am firmly convinced that the Second Amendment is concerned with the state’s power to control its own militia as a civilian alternative to a professional standing army. In raising the issue in the Virginia Convention Patrick Henry several times pointed to Art. I, Section 8, Clause 16, as an example of the potentially threatening effect of dual state and congressional jurisdiction over the militia and the possibly dangerous union of the purse and sword vested in Congress. Yet wielding the scholar’s power of the ellipse several partisans of gun ownership have edited Henry’s remarks about how best to regulate the militia into an inflammatory half-truth “The great object is that every man be armed….Every one who is able may have a gun.” The NRA has blown this up into a poster-sized blurb embossed with Patrick Henry’s image.from A PATRICK HENRY ESSAY(No. 5-98), THE POLITICAL LEGACY OF PATRICK HENRY
This is not, I repeat NOT, part of Patrick Henry’s legacy. Clearly speaking of the problem of militia organization, what he actually said is, “The great object is that every man [of the militia] be armed.–But can the people to afford to pay for double sets of arms &c.? Every one who is able may have a gun. But have we not learned by experience, that necessary as it is to have arms, and though our assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance….”
Not to belabor the argument, but cinch it, I would also remind you that the liberty or death speech itself was in support of a resolution to put the colony in a mode of defense, and the plan proposed by Henry’s committee as a result of its passage included a militia law that described in great detail not only the number of men, but the amount of ammunition to be raised by a collective levy, and a very clear procedure for maintaining county and provincial control over the militia system. If Henry’s remarks were intended to cast doubt upon the adequacy of a hypothetical Congressional militia law, they only affirmed his commitment to the traditional method of state control over a militia that, far from being a privatized collection of gun-toting individuals, was a community temporarily called to arms and always subservient to public authority and law.
Unfortunately, this quotation was once to found on the Patrick Henry homestead website, but it has since vanished. Of course,such censorship if it is not the result of government action is constitutional, but it skews history. That is why I am once again posting this.
I will also post the original quotations made by Henry:
Anyway, if one goes to the primary sources such as Patrick Henry’s comments in regard to the Constitution, one finds a direct reference to the Federal power over the militia in relation to the Second Amendment and the need to preserve state militias from Federal interference.
Patrick Henry, Against the Federal Constitution (June 5, 1788) Argument IV: against the standing army Constitution: Article I Section 8
8.1 You will find all the strength of this country in the hands of your enemies; their garrisons will naturally be the strongest places in the country. Your militia is given up to Congress, also, in another part of this plan: they will therefore act as they think proper: all power will be in their own possession. You cannot force them to receive their punishment: of what service would militia be to you, when, most probably, you will not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish them.
9.1 Let me here call your attention to that part which gives the Congress power “to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States—reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.”
9.2 By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither—this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory. Our situation will be deplorable indeed: nor can we ever expect to get this government amended, since I have already shown that a very small minority may prevent it, and that small minority interested in the continuance of the oppression.
or Patrick Henry’s “That every man be armed” speech found at The Debates in the Several State Conventions on the Adoption of the Federal Constitution (3 Elliot’s Debates 384-7), Virginia, Saturday, June 14, 1788. Page 386-7
As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of “arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States.” To the state legislatures is given the power of “appointing the officers, and training the militia according to the discipline prescribed by Congress.” I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects…May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms &c.? Every one who is able may have a gun. But we have learned, by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavoured to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by a concurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication.
Ah, but unlike our gun loons for the most part, YOU, Laci, engage in reading scholarly materials.
ReplyDeleteOn the opposing side we have people who cherry pick what someone told them was said by an historic figure, or at best they look at a quotation out of context, without any knowledge of either the MORAL PHILOSOPHY of the period, or the political philosophy for that matter either, and without any understanding of factual historic context.
I blame it on a mixture of individual intellectual laziness, and of course, our poor education system which is now apparently is also fielding poorly educated teachers in some instances. If our teachers don't know better, how can our students ever rise to the threshold of an educated electorate?
Not just scholarly material, but reading the primary source material as well.
ReplyDeleteI should add that the militia v.standing army was a significant one in Anfglo-American history with the whigs favouring the militia system. That makes sense that the infant US would have an unrealistic love of the institution since it was founded upon Radical Whig beliefs.
I know only of a very limited discussion of private arms during this period.
The bulk of evidence supports the civic right interpretation of the Second Amendment.
See:
Western, J.R.: English Militia in the Eighteenth Century: The Story of a Political Issue, 1660-1802 (ISBN: 978-0751201406)
Beckett, Ian: Britain's Part-Time Soldiers: The Amateur Military Tradition 1558-1945 (ISBN: 978-1848843950)
Cunliffe, Marcus, Soldiers and Civilians: The Martial Spirit in America, 1775-1865
Denning, Brannon P., Palladium of Liberty? Causes and Consequences of the Federalization of State Militias in the Twentieth Century, 21 Okla. City U. L. Rev. 191-245 (1996)
Mahon, John K, The History of the Militia and the National Guard
Millett, Allan R. & Maslowski, Peter, For The Common Defense: A Military History of the United States of America: Revised Edition
See also Adam Smith's Wealth of Nations, Book V, Chapter I (Of the Expences of the Sovereign or Commonwealth), PART I: 16-27 (Of the Expence of Defence) for a critique of the miltia system from 1775.
Also, David Chandler & Ian Beckett, The Oxford Illustrated History of the British Army (ISBN: 978-0198691785) has a section on the Amateur Military Tradition (I.E., the Militia).
Weatherup, Roy, Standing Armies And Armed Citizens: An Historical Analysis of The Second Amendment, 2 Hastings Const. L.Q. 961-1001 (1975)
Schwoerer, Lois G. "No Standing Armies!" The Antiarmy Ideology in Seventeenth-Century England
Whisker, James Biser The Citizen-Soldier under Federal and State Law, 94 W. Va. L. Rev. 947 (1991-1992)
Cooper, Jerry The Rise of the National Guard: The Evolution of the American Militia, 1865-1920, ISBN: 978-0803264281
Dog Gone, can you be specific? You throw out terms like moral philosophy as though the phrase itself is a magic bullet. What in detail do you mean? If you're referring to an idea of consensus, that's interesting, but it doesn't require us to agree. Nor does the notion of consensus rest on your side in this country.
ReplyDeleteI don't get all that impressed with random quotations from famous figures, especially when no context is given. In the case of Patrick Henry, let's recall that he believed that the U.S. Constitution created too much Federal power. He's hardly an advocate for centralized control.
Greg, I think one point Laci made was that you side throws out "random quotations from famous figures." What he's done again is provided the entire text.
DeleteI can't speak for everyone on this, but while I enjoy the rhetorical effect of a good quotation, I always want to see the context before I use it as a proof text.
DeleteI just have one question: Was Patrick Henry armed or unarmed when he made those statements it? Okay, I lied, I have another question: Were those in attendance armed or unarmed?
ReplyDeleteorlin sellers
Orlin, What I take from Laci's argument is that there is no "individual" aspect to the 2A. That means, not that you have to give up your guns, but simply that you cannot continue to justify having them in this way.
DeleteOnce we get beyond that we can more easily talk about what even Justice Scalia said is acceptable, reasonable restrictions.
Mikeb, common sense says that that is crazy. Ask yourself: What came first, the people or the Constitution? At the time in the colonies, it was essential for the people to have weapons. Not only to hunt but for self-defense against injuns, this was brought up in the Declaration of Independence. Guns were vital to the citizens, a necessity.
DeleteWhy do you think there we so many rifle makers and gun smiths in the colonies? Ever heard of the Pennsylvania Rifle?
http://ourancestry.com/rifle.html
Were they making these rifles to sell to the militias? Hell no, they were sold to individuals. Were frontiersmen militia men? Hell no, they were frontiersmen.
It should be clear to anyone that guns and individuals came before any sort of national Law of the Land. The Constitution would have had to disarm people if the founders didn't want individuals to own guns - which seems highly unlikely, even stupid after having just fought a war against a tyrannical king/government.
As far as militias supplying the weapons, I find that to be hogwash
"When the American Revolution began, many colonial men belonged to local militias, which met once or twice a year to train. Militia regulations required members to own at least one firearm and one bladed weapon such as a sword, hatchet or bayonet. One of the more popular styles was the long rifle used by early frontiersmen in Pennsylvania, Virginia and Kentucky. Invented in Lancaster, Pennsylvania, by Martin Meylin, the long rifle was known for accuracy up to 300 yards. Members of the Continental Army were issued weapons by the government such as the British-made "Brown Bess" musket. Originally manufactured for the British Army, "Brown Bess" was used by both sides during the American Revolution. It could be fitted with a bayonet and used as a spear while its heavy stock made it a useful club in close quarters combat.
Read more: Tools and Weapons of the Colonial Americans | eHow.com http://www.ehow.com/info_7966432_tools-weapons-colonial-americans.html#ixzz1mCjZK8Wj
Again, ask yourself which came first, individuals with rifles or militias?
If individuals were not supposed to have guns, but only militia members, the Constitution would have had to specifically enumerated it - it doesn't, no matter how much Pooch wants to pervert the Bill of rights to deny that the entire BofR is about individual rights. Remember, the entire purpose of the document is to defend the right of the minority against a democracy/majority.
orlin sellers
Re: Moral philosophy, in natural law does not apply. Your life, your liberty, your pursuit of happiness is yours alone, not to be judged on any moral basis. That was the intent of the founding fathers, individual liberty. They were not the puritans.
ReplyDeleteorlin sellers
Hi Lacy the Dog.
ReplyDeleteHave you actually read the primary sources?
Why is it so surprising that that they would be discussing the militia when they are debating the militia clauses? Why not quote the debates on the 2nd Amend in the Virginia Ratifying Convention? Oh wait, there were no debates in the Virginia Ratifying Convention "the right of the people to keep and bear arms". Yet, the language which was to become the 2nd Amend was copied almost verbatim from the amendments proposed by the Virginia Ratifying Convention. Do you know why there was no debate on the 2nd and why there was little debate on other portions of the Bill of Rights?
Laci The Dog wrote: "Clearly speaking of the problem of militia organization, what he actually said is, “The great object is that every man [of the militia] be armed."
What he actually said was “The great object is that every man be armed." Yet you unfairly insert words into the actual quote that are not there... Again the basic difference between our two positions is not whether the militia is an important aspect of 2nd, it is. Where we differ is the methodology employed. The "Great Object" is that all men be armed, not just those who happen to be enrolled members of the militia, because in the event of an emergency, the new conscripts called up would have arms in their hands. This is why Henry continued: "Every one who is able may have a gun."
So let us explore Henry's specific objections to the Constitution which relate to the militia.... and I will do so, but first let us put the Virginia Ratifying Convention in context. Unless otherwise specified all of my quotes are from the Virginia Ratifying Convention held June 2, 1788 through June 27, 1788 as recorded in Elliot's Debates and I shall provide the specific date for each quote.
Henry was probably the most outspoken anti-federalist, at least the most eloquent. The Virginia Ratifying Convention organized the debates so that they took each portion of the Constitution in order, starting with the Preamble and continuing in order, through the entire Constitution:
"Resolved, That no question, general or particular, shall be propounded in this Convention, upon the proposed Constitution of government for the United States, or upon any clause or article thereof, until the said Constitution shall have been discussed, clause by clause, through all its parts." TUESDAY, June 3, 1788.
Henry found fault with almost every section of the Constitution, including the Preamble. Thus Henry objected thusly:
"What right had they to say, We, the people? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of, We, the people, instead of, We, the states?" WEDNESDAY, June 4, 1788.
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ReplyDeleteHenry even went so far as to oppose a Bill of Rights:
"In my weak judgment, a government is strong when it applies to the most important end of all governments — the rights and privileges of the people. In the honorable member's proposal, jury trial, the press and religion, and other essential rights, are not to be given up. Other essential rights — what are they? The world will say that you intended to give them up. When you go into an enumeration of your rights, and stop that enumeration, the inevitable conclusion is, that what is omitted is intended to be surrendered."
Hamilton made a quite similar objection to a Bill of Rights:
"I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?" The Federalist Papers: No. 84.
So what exactly was going on? When you can answer that question, you will understand the historical context of the entire Bill of Rights and how it came to be. This is important, not just for the 2nd. You must be familiar with the political maschinations that occured and why the Constitution was ratified without a Bill of Rights, even when it was clear that a large majority favored a Bill of Rights.
Yes, I have read the entire debates in the Virginia Ratifying Convention, and much more of the primary resources. Virginia has the best record and if you are a history nerd, as I am, it is fascinating. To read the debates between Henry, Madison, Mason, John Marshall (yes that John Marshall), Randolph, Lee...
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ReplyDeleteThe following is for historical context only and has little to do with the 2nd specifically, but it is important to know what was actually going on.
The federal convention was held in Philly during the long hot summer of 1787. Congress, under the Articles of Confederation, had given the convention specific authority to propose amendments to the said Articles of Confederation, but nothing more (thus it was termed the “Federal Convention” rather than the “Constitutional Convention” as it later came to be called). Under the Articles of Confederation, it took the unanimous approval of all of the States to amend the Articles. For this reason, the convention was composed primarily of persons who supported a much stronger federal government. They were the “interested players” and lobbied to be included in the delegations. Those that opposed a strong federal government were not so keen on attending because they knew that they could deep six any proposals when it came to the ratification process.
Very soon into the Federal Convention, the idea of merely amending the Articles Of Confederation was discarded and they set to work on creating an entirely new document to replace the Articles. All of this was done in secret, as each member pledged an oath not to reveal what was going on (not for nefarious reasons, but to insure open and free debate).
The question of a Bill of Rights for the new Constitution was raised very late in the convention by George Mason on September 12, 1787, yet it was voted down. The explanation for this decision agreed upon by most historians is quite simple. It had been a long, hot summer in Philly, the delegates were tired and wanted to go home.
The Convention released its handiwork to the public on September 17, 1787 and those that opposed a strong federal government were in shock. They had been thrown a curveball. Not merely a series of proposed amendment, but an entirely new Constitution which only required the ratification of 9 states to be effective. It was a take it or leave proposition and the opponents could not kill bits and pieces of the Constitution as they could if specific amendments were proffered.
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ReplyDeleteThe country soon split into two political factions, the Federalists, who supported ratifying the Constitution, and the Anti-Federalists who opposed ratification (Patrick Henry did not like this formulation, he opined that those in favor of Ratification should be more properly called the “Rats”, while his faction should be called the “Anti-Rats”, LOL).
The first attempt by the Anti-Rats to deep six the Constitution was in Congress (the one acting under authority of the Articles of Confederation). Their argument was simple, that the convention had exceeded the express grant of authority by proposing a new Constitution, rather than providing a list of proposed amendments and that as a result, the work was a nullity. However, due to some very skillful work by the Rats, Congress agreed to send the proposal to the states without any recommendations on September 28, 1787.
Very quickly and without much debate, Delaware ratified the Constitution by unanimous vote, as the Anti-Rats had not even been able to organize an opposition. Pennsylvania was different. There the Anti-Rats were organized and presented a strong argument, but still they lost. In response thereto, the Anti-Rats of Pennsylvania issued a report on why they opposed ratification. It became the blue print for the Anti-Rats in all subsequent state ratifying conventions.
The single strongest argument that struck a chord with the public at large was the minority reports criticism based upon a lack of a Bill of Rights. It became apparent very quickly that this omission could prove a death knell to the Constitution. As a result, the Rats condemned the minority report and tried to minimize the damage, claiming that a Bill of Rights was unnecessary and even dangerous. It was purely political, as the Rats were not philosophically opposed to a Bill of Rights, nor did the Anti-Rats believe that the omission was a fatal defect. What it was though, was a poison pill to kill the Constitution. They could not amend the proposed constitution before ratifying same, they had to ratify or refuse to ratify. The consequence of not ratifying was that a brand new Convention would have to be called which would then make changes and submit a wholly new document for ratification... but this time the Anti-Rats would not stay home and it was certain that nothing like the proposed Constitution would be the result. In short the objection of the omission of a Bill of Rights would doom the Constitution as we know it today.
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ReplyDeleteThe crucial test was Massachusetts. The ratifying convention there was dominated by the Anti- Rats and it was almost certain that the Constitution would go down in flames. But then a miracle occurred...
The Massachusetts Compromise. A group of moderate Anti-Rats (led by Sam Adams) aligned themselves with the Rats. The proposal was simple, the Constitution would be ratified, but with the express direction to their congress critters which would be elected under the new Constitution, to draft and send to the states proposals for amendment, including a Bill of Rights. This realignment of moderate Anti-Rats and Rats was termed “treacherous” by the Anti-Rats, but Massachusetts voted barely to ratify.
Other states quickly adopted the Massachusetts formula and ratified the Constitution subject to recommendations of amendment to be made by the 1st Congress. The battle then came down to the radical Anti-Rats (including Henry) arguing against post ratification amendment in favor of the much safer pre-ratification amendment, all the while knowing that pre-ratification amendments were impossible from a pragmatic standpoint. Their intent was simply to kill the Constitution.
These radicals did not prevail, the combination of moderate Anti-Rats and Rats were sufficient to assure the adoption of the Constitution. However, the contribution of the Anti-Rats was quite important. It is their proposals and formulations of a Bill of Rights which is the source of the 1st 10 amendments. They were responsible for authoring the substantive provisions which Madison used as a guide to his draft of the Bill of Rights which he introduced to the 1st Congress on June 8, 1789.
And that is why we have the Constitution and that is why we have a Bill of Rights.
Now lets take a look at Henry's articulated exceptions:
ReplyDeletePH: "When this power is given up to Congress without limitation or bounds, how will your militia be armed?"
How will the militia be armed? Under my methodology, the militia would be armed using privately owned firearms. Since not all potential members of the militia would own their own firearms, it is wise to insure a broader right to make up for the shortfall.
Under the individual rights thesis not well articulated by Stevens... "crickets".
PH: "If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it?"
The context of this comment must be understood. Henry was debating Madison (classic). Madison was responding to a suggestion by Mason that an amendment be made to the Constitution which allows the states to arm and provide training for its militia in the event the feds failed to do so. John Marshall also stepped into the debate, backing Madison and asserting that the states already had a concurrent power to do this as the states were not prohibited by the Constitution.... Yet this is clearly not something that gave rise to the 2nd, and we know that for a fact. For now, all that we need to say is that all 9 members of SCOTUS found that the 2nd protects an individual right and it does not protect a state right or a state concurrent power.
The debate on the militia clauses begins on June 14, 1788. Mason raises his first objection to the Militia Clauses... to wit:
"Mr. GEORGE MASON. Mr. Chairman, unless there be some restrictions on the power of calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions, we may very easily see that it will produce dreadful oppressions. It is extremely unsafe, without some alterations. It would be to use the militia to a very bad purpose, if any disturbance happened in New Hampshire, to call them from Georgia."
Query: Does the 2nd Amend prohibit Congress from calling up the militia from Georgia for service in New Hampshire? Answer: Clearly it does not.
Mason, on that same day, raised the objection about arming the militia and he proposed a specific amendment for this purpose: "I wish that, in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the state governments might arm and discipline them. With this single exception, I would agree to this part, as I am conscious the government ought to have the power." Id.
Madison responds to Mason: "I cannot conceive that this Constitution, by giving the general government the power of arming the militia, takes it away from the state governments. The power is concurrent, and not exclusive." Id.
That is when Henry gives his speel.
Marshall responds to Henry in his elegant and legalist form:
"Mr. JOHN MARSHALL asked if gentlemen were serious when they asserted that, if the state governments had power to interfere with the militia, it was by implication. If they were, he asked the committee whether the least attention would not show that they were mistaken. The state governments did not derive their powers from the general government; but each government derived its powers from the people, and each was to act according to the powers given it. Would any gentleman deny this? He demanded if powers not given were retained by implication. Could any man say so? Could any man say that this power was not retained by the states, as they had not given it away? For, says he, does not a power remain till it is given away? The state legislatures had power to command and govern their militia before, and have it still, undeniably, unless there be something in this Constitution that takes it away." MONDAY, June 16, 1788.
Soooo... clearly, they were not talking about the 2nd.
Under your methodology is not the constitutional methodology.
DeleteThe Constitution explicitly gives the power of “arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States” TO CONGRESS.
While they may not have been explicitly discussing the Second Amendment, the Second Amendment was added to the Constitution as a guarantee that Congress would continue their duty to ARM the militia.
I repeat, the Constitution explicitly makes the arming of the militia the duty of CONGRESS and no one else.
LegalEagle, your desired form of reality does not change history or the Constitution.
If you actually understood what you keep posting, then you would realise that you only buttress my explanation of reality.
If anything, your long post is a tale told by an idiot, full of sound and fury, Signifying nothing.
As I said, if you want to change the Constitution, you must amend it.
Reality is your own problem.
You are either insane, an idiot, or totally dishonest--I am ambivalent as to which one you are.
But, the only thing your continued posts demonstrate to me is that you are unclear as to what is happening.
LegalEagle, unless you can demonstrate that you are in the same universe that I am--I will not waste my time with responding to your comments made from a different reality.
DeleteDog Gone says I need to idiot proof this for you, LegalEagle
Delete1) The Constitution specifically gives the power to arm the militia to Congress
2) There was concern that since Congress also had an Army, that they would neglect the militia.
3) The Second Amendment only guarantees that Congress would continue to arm the militia hence the phrase "shall not be infringed"
4) The right to keep and bear arms in no way implies actual ownership--one can keep an item without being an owner of that item.
Furthermore, as I said, if you actually understood everything that I posted, you would realise that it objectively supports my version of reality.
Not yours.
I do not feel that any further explanation is necessary, or that you would understand it.
You are poorly educated in both the law and history, LegalEgale.
And Laci, you'll never change your position till Birnam Wood rises against Dunsinane Hill, but all your posturing has little effect. If you insist that it's Congress's duty to arm the militia, I look forward to receiving my Congressionally supplied M-4 and crate of ammunition. It is the right of the people, after all.
DeleteHi Lacy The Dog.
DeleteMy reality is, and my method is, the constitutional method. Your method is to employ a preamble as a limitation, a reason as a condition precedent... all in direct contradiction to both Blackstone and Story. Then you switch gears and claim obsolence. When that is destroyed, you go back to the assertion that the preamble limits the guarantee, under the guise of claiming "private use of arms" is nowhere mentioned. Well, it is specifically including in the guarantee... The "right of the people to keep and bear arms"... not the right of the militia to keep and bear arms and not the right of the state to keep and bear arms. You engage in grammatical gymnastics in a vain attempt to deny an expressed constitutional right which has its roots in the English Bill of Rights, which was clearly and unequivicollay an individual right to keep arms for individual purposes.
Laci The Dog Wrote: "The Constitution explicitly gives the power of “arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States” TO CONGRESS"
Incorrect. Read it again. It gives Congress the power to PROVIDE for same and specifically reserves to the states "the Authority of training the Militia
according to the discipline prescribed by Congress."
Laci The Dog wrote: "I repeat, the Constitution explicitly makes the arming of the militia the duty of CONGRESS and no one else."
Incorrect, it gives Congress a power, it does not give them an obligation. If your interpretation was correct, then a lawsuit could be brought under said provision forcing Congress to adequately arm and train the militia whenever there was some inadequacy. Further, future Chief Justice Marshall was correct in stating it was a concurrent power and not an exclusive power, however there is something else in the Constitution which confirms this. Do you know where? You might try reading Tucker's Blackstone, because it will tell you.
Laci The Dog wrote: "LegalEagle, your desired form of reality does not change history or the Constitution"
Correct, and neither does your desired reality, no matter how much you wish it to be.
Laci The Dog wrote: "If anything, your long post is a tale told by an idiot, full of sound and fury, Signifying nothing."
That you fail to grasp the significance is not surprising based upon your prior lack of comprehension. It is obvious that you never read Miller and Amyette before I told you to do so. Your grasp of the 2nd Amend is obviously only cursory based upon what other people have told you.
For example, did you know that the language which was to become the 2nd Amend and introduced by Madison to the 1st Congress on June 8, 1789 is almost a verbatim copy of the language contained in the proposals for amendments adopted by the Virginia Ratifying Convention on June 27, 1787? Have you read that? Look at the structure.
Did you know that the proposals contained in the amendments proposed by the Virginia Ratifying Convention on June 27, 1787 are in almost verbatim copy of another document which was created well before there was any debate on the militia clauses at the Virginia Convention? Try comparing those proposals to see some slight differences... one of those differences is of importance to the 2nd Amend debate... and it exactly why all 9 members of SCOTUS had to conclude that the 2nd protects an individual right. They had no choice.
If you do not know the sources of the 2nd Amend, you can neither argue the history or the law...
Yes Laci, if you want to change the Constitution, you must amend it... you can not claim it is obsolete, you can not use grammatical gymnastics to magically transform a preamble into a limitation and you must actually read the cases and understand the history, something which you clearly do not.
Sorry Laci, you are an amateur.
OK, even more importantly--if,as you assert, guns are commonplace items and possessed by everyone, the right isn't attached to the miliitia.
DeleteTHEN WHY ARE THEY HAVING DISCUSSIONS WHERE THEY ASK:
"When this power is given up to Congress without limitation or bounds, how will your militia be armed?"
Why are they even discussing the militia at all if the real subject was personal arms?
So, as I said before: You are either insane, an idiot, or totally dishonest--I am ambivalent as to which one you are.
But, the only thing your continued posts demonstrate to me is that you are unclear as to what is happening in the material you are presenting.
So, I cannot imagine that any law school of any repute would allow you to graduate.
The fact that not only have you graduated from a law school--no matter how poor its reputation, were able to pass a bar exam, and admitted to practise proves that it doesn't take too much to become a lawyer in the USA.
And all you need are two references and to have practised law for three years to be admitted to the SCOTUS bar.
http://www.supremecourt.gov/bar/baradmissions.aspx
It's nice to know that other jurisdictions require some sort of apprenticeship to winnow out legal chaff such as yourself< LegalEagle
Laci The Dog Wrote: "1) The Constitution specifically gives the power to arm the militia to Congress"
DeleteIt gives Congress the power to provide for the arming of the militia, which would include a power to arm the militia. However, there is nothing in the Constitution which prohibits the states from arming the militia and since it was a preexisting power, the states have concurrent power to do so as well. You are familiar with the concept of concurrent powers, right?
Laci wrote: "2) There was concern that since Congress also had an Army, that they would neglect the militia."
Yep, but there is not one word in the 2nd about a standing army, now is there? Did you know that the source employed by Madison did have such a provision?
Laci wrote: "3) The Second Amendment only guarantees that Congress would continue to arm the militia hence the phrase "shall not be infringed"
ROTFLMAO!!! So we have an individual right, which can be enforced by an individual suing the federal government because they failed to properly arm the militia???? Really??? You are a lawyer??? Please provide a single instance where someone brought such a case. You won't, because there is none.
The verbage "shall not be infringed" is in relation to the "the right of the people to keep and bear arms", not the militia. It clearly indicates a preexisting right which shall not be infringed. And we know from Madison's notes to his speech delivering his version of the the Bill of Rights to the 1st Congress on June 8th, 1789, that the preexisting right referred to was the one found in the English Bill of Rights. You have read Madison's notes to that speech, right?
Laci wrote: "4) The right to keep and bear arms in no way implies actual ownership--one can keep an item without being an owner of that item."
Yep, but it certainly includes a right to possesion. You are having trouble with "keep", huh? LOL, good. Dream up something that ignores Amyette and Andrews. Close your eyes and make up history. Continue with circular legal arguments that have all been destroyed.
You are an amatuer.
Again, if you are capable of understanding English, which I am seriously in doubt of, LegalEagle--why are they having these debates over the issue which you claim is a non-issue?
DeleteIf reality were as you present it to be, these discussions would be as nonsensical as your arguments.
If anything,you haven't explained why they are talking about the militia in the first place.
Are you aware of how the right is worded in the English Bill of Rights?
As I said, LegalEagle, until you can prove you are operating in the same universe as I am, I will not bother with your comments.
I am under no obligation to waste my time trying to explain history to someone who is obviously an idiot.
They are having a debate about Article I, Sec 8, Cl 15-16. They are not having a debate about the 2nd Amend.
DeleteLaci The Dog Wrote: "Are you aware of how the right is worded in the English Bill of Rights?"
Yep, I sure am. Which is where Madison's notes come into play. In explaing the provisions in his draft of the Bill of Rights to the 1st Congress he explained that his version was superior to similar provisions in the English Bill of Rights. With respect to the 2nd, this is what the notes provide:
1.) Not subject to a "[m]ere act of parlt."
2.) Not restricted to "arms to Protestts."
James Madison, Notes for Speech on Constitutional Amendments, June 8, 1789,
12 MADISON PAPERS 193–94 (C. Hobson & R. Rutland eds., 1979).
He also had other things to say about the deficiencies in the English version as compared to his version, such as "no freedom of press—Conscience", no [j]ury in Civil Cause—criml.Gl. Warrants—Habs corpus. Attainders." Id.
But what swould Madison know, after all he was the one who was in charge of DRAFTING THE BILL OF RIGHTS pursant to the direction of Congress.
Obviously your understanding of Bill of Rights is quite deficient. Your refusal to respond is an indication of surrender, since you can not logically defeat my points.
No cases ordering congress to provide arms to the militia, huh? There should have been plenty, because Congress was not too kind to the milita at various points in our history. In fact, in April of 1917, the completely eliminated the militia and told the states they were on their own to provide for their own internal protection.
Your silence on concurrent powers speaks volumes. Do you think that because the 16th Amendment gives congress the right to levy an income tax, that states can not also levy an income tax? LOL
And obviously you did not look at Tucker's Blackstone as I directed you to.
As I said, you are an amatuer...
Laurence H. Tribe, the most distinguished and revered Constitutional expert who is most assuredly a liberal (if Gore had been president instead of Bush, he would probably be sitting on SCOTUS right now instead of be THE Con Law Prof at Harvard Law and the author of the most widely written Con Law Text used in law schools in the USA had this to say about the 2nd, 8 years prior to Heller:
Delete"[The Second Amendment's] central purpose is to arm "We the People" so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes--not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons--a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by § 1 of the Fourteenth Amendment against state or local government action." Laurence H. Tribe, 1 American Constitutional Law 902 n.221 [3d ed. 2000]
Tribe got it right.
Laci wrote: "why are they having these debates over the issue which you claim is a non-issue?"
DeleteAt least pay attention. What I said is that they are arguing over something which is a non issue to the 2nd Amend. They are debating the militia clauses and concurrent powers. Does the 2nd have anything to do with concurrent powers? If you say yes, then you are adopting a states right view, specifically rejected by the dissent in Heller and seemingly in opposition to your unexplained civic rights thesis (what would be a violation of your version again? Oh yeah you refuse to tell us).
BTW, I will repeat that I have answered your comments under the heading "Second Amendment History" which you would know if you were intelligent enough to have read them.
ReplyDeleteFurthermore,there are more than enough reference in the debates to the topic of standing armies. I would also add that there were drafts of the Second Amendment and State analogues which specifically mention standing armies.
As I said, the only thing you are demonstrating LegalEagle that you are an idiot who is only interested in wasting my time.
Again, I am under no obligation to have to keep responding to you if you have not demonstrated that you have read what I have already written on the topic.
And that you are capable of understanding the material in general.
However, there is nothing in the Constitution which prohibits the states from arming the militia and since it was a preexisting power, the states have concurrent power to do so as well. You are familiar with the concept of concurrent powers, right?
ReplyDeleteDid you read and understand what Henry was saying the above quotations?
I don't think you did from that comment.
Did you know that the source employed by Madison did have such a provision?
Again, you are unclear off the fact that you are proving my point for me if you were capable of understand the English language.
ROTFLMAO!!! So we have an individual right, which can be enforced by an individual suing the federal government because they failed to properly arm the militia???? Really??? You are a lawyer??? Please provide a single instance where someone brought such a case. You won't, because there is none.
No, it's because people like you who misunderstand the Second Amendment and try to place it in the realm of private ownership of arms and have finally found five intellectually dishonest justice who have sort of reaffirmed that fallacy.
Again, if the term militia is insignificant, why is it even mentioned at all?
Much less mentioned in a prominent position?
LegalEagle,not only am I in disagreement with what you are trying to say, but if you understood the original post, so is Patrick Henry.
DeleteAnd are a lot of other people past and present.
Only five justices in History have followed your world view.
And saying that a right is an individual one does not give any idea of the scope of that right.
That five justices have chosen to reinterpret the constitution to something which seems to appear to support your world view does not make it the correct decision.
BTW, The use of the Individual right terminology is an odd decoy, constructed of something distinctly resembling dried grass. Sure, the dissenting opinion concurred that the Second Amendment applies to individuals – but within the context of a “well-regulated militia”. The real issue is whether the presumed “rights” of individuals to keep and bear arms transcend the government’s right to regulate firearms. If you do bother to read the decision, you will see that Justice Stevens says:
DeleteThe opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. [He also notes that "a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses."] Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment’s text. [Translation: they rewrote the goddamn thing.]… When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated by its drafters or is encompassed within its terms. Even if the meaning of the text were genuinely susceptible to more than one interpretation, the burden would remain on those advocating a departure from the purpose identified in the preamble and from settled law to come forward with persuasive new arguments or evidence. The textual analysis offered by respondent and embraced by the Court falls far short of sustaining that heavy burden.
Furthermoremore,in reference to your comment that:
DeleteROTFLMAO!!! So we have an individual right, which can be enforced by an individual suing the federal government because they failed to properly arm the militia???? Really??? You are a lawyer??? Please provide a single instance where someone brought such a case. You won't, because there is none.
You are aware that the Civic Right interpretation of the Second Amendment was the only accepted one for nearly 70 years. It was only after the appearance of revisionist Second Amendment history that it was challenged based upon that false history.
As I pointed out, even the dissent in Heller has kept alive the Civic right interpretation of the Second Amendment.
Call me what you will, but you will never brow beat me to change my opinion based upon your inaccurate representation of the facts, LegalEagle.
My silence does not mean that you have "won" the argument, only that I find you tedious and I tactfully have other things far more important than wasting my time on you.
BTW, based upon the fact that you are refusing to answer Dog Gone's question about where you went to law school, where you practise, and which brief you submitted--I can only assume that you are a cart00ney.
DeleteI should also add once more, LegalEagle, that you have conceded that there was discussion of standing armies, you cannot deny they are also discussing the militia.
DeleteFurthermore, Henry addresses your the concurrent powers comment in the above quotations.
Despite what you believe,nothing you have said has contradicted my point of view. If anything, it only reinforces my version of reality, not yours.
I hardly think that I am an amateur given your poor ability to argue by supporting your argument with material which proves your side, not the opponents. and the lack of understanding of what is being said.
As I have said many times before, it is painfully obvious to me that you have not read my writings on this topic, or you wouldn't be committing serious errors in advocacy.
BTW, LegalEagle, you can call me what you like--I know my reputation and I have been outed on the internet. My education is pretty damned exceptional: JD University of Maryland, LL.M University of Exeter.
DeleteA couple of the best law schools with Exeter falling slightly below Oxbridge (in my field it was above Oxbridge).
I am comfortable enough that you can call me an amateur whilst backing up my arguments through your ignorance.
Laci wrote: "Did you read and understand what Henry was saying the above quotations?"
DeleteYep, Henry was claiming it was an exclusive power.
Did you read what future Supreme Court Chief Justice John Marshall said in response:
"Mr. JOHN MARSHALL asked if gentlemen were serious when they asserted that, if the state governments had power to interfere with the militia, it was by implication. If they were, he asked the committee whether the least attention would not show that they were mistaken. The state governments did not derive their powers from the general government; but each government derived its powers from the people, and each was to act according to the powers given it. Would any gentleman deny this? He demanded if powers not given were retained by implication. Could any man say so? Could any man say that this power was not retained by the states, as they had not given it away? For, says he, does not a power remain till it is given away? The state legislatures had power to command and govern their militia before, and have it still, undeniably, unless there be something in this Constitution that takes it away." MONDAY, June 16, 1788."
So Marshall disagreed with Henry, as did Madison (one of the primary drafters of the Constitution and it was he who was instructed by the 1st Congress to provide a Bill of Rights).
Madison "I cannot conceive that this Constitution, by giving the general government the power of arming the militia, takes it away from the state governments. The power is concurrent, and not exclusive."
So who was right? I personally believe Madison and Marshall were right, but that is irrelvant because that matter was clarified elsewhere.... not in the 2nd. The funny thing is, you do not have a clue as to where or how this was clarified, do you?
Laci wrote: "Only five justices in History have followed your world view."
Well, there are plenty of cases which have supported my world view.
Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, 13 Am. Dec. 251 (1822); State v. Reid, 1 Ala. 612, 35 Am. Dec. 44 (1840); Nunn v. State, 1 Ga. (1 Kel.) 243 (1846); Andrews v. State, 50 Tenn. (3 Heisk.) 165, 8 Am. Rep. 8 (1871); State v. Wilforth, 74 Mo. 528, 41 Am. Rep. 330 (1881);State v. Johnson, 16 N.C. 187 (1881);State v. Hogan, 63 Ohio 202, 58 N.E. 572, 52 L.R.A. 863, 81 Am. St. 626 (1900); In re Brickey, 8 Idaho 597, 70 P. 609, 101 Am. St. Rep. 215, 1 Ann. Cas. 55 (1902); State v. Rosenthal, 75 Vt. 295, 55 A. 610 (1903); Ex parte Thomas, 21 Okla. 770, 1 Okla. Cr. 210, 97 P. 260, 20 L.R.A. (N. S.) 1007, 17 Am. & Eng. Ann. Cas. 566 (1908)...
I can go on, but what’s the point, you are completely unaware of any of these case, let alone having read them. Did you know that the very first case to declare the right to arm to be a pure collective right and not an individual right did not come down until 116 years after the 2nd was approved by Congress. That being the case of Salina v. Blaksley, 72 Kan. 230, 83 P. 619, 3 L.R.A. (N.S.) 168, 115 Am. St. Rep. 196, 7 Am. & Eng. Ann. Cas. 925 (1905)?
No you haven’t...as I said, you are an amateur
Laci wrote: "BTW, The use of the Individual right terminology is an odd decoy, constructed of something distinctly resembling dried grass. Sure, the dissenting opinion concurred that the Second Amendment applies to individuals – but within the context of a “well-regulated militia”."
DeleteYou may think so because you are an amateur, however the question is that since it is an individual right, albeit limited in scope, that, in the words of Breyer:
"The Amendment protects an “individual” right—i.e.,
one that is separately possessed, and may be separately enforced, by each person on whom it is conferred." DC v Heller, pg 3 of slip opinion (Breyer, J., dissenting).
Just what would amount to a violation of the 2nd in the view of the dissent?
I keep asking that queston, and you keep avoiding that question. Breyer has publically claimed that one of the fears prompting the 2nd was that the militia would be called into federal service and sent outside the state, leaving the state defenseless. While that is true (see debates quoted above), how does the dissents version of the 2nd resolve that fear? Does it prevent the feds from sending the militia out of the state? If it does, it sure has not been enforced. In fact the militia has oft times been sent out of its home state. Breyers version is totally illusory, your version is yet to be stated. My version provides protection, because even if the militia is sent out of state, the people have their own private arms and a new well regulated militia may be assembled from their ranks... which is EXACTLY what occured in April of 1917.
Laci wrote: "JD University of Maryland, LL.M University of Exeter."
DeletePretty good, my law school is ranked a little higher than yours, however I turned down an acceptance to NYU for a LL.M because I did not get the full ride scholarship I was hoping for and I had incurred to much in student loans already. So I started teaching Jurisprudence at law School until I went into private practice.
When I say you are an amateur, what I am referring to is 2nd Amend. Someone who never actually read Miller until I prodded you, is in fact an amateur when it comes to the 2nd Amend. Your ignorance is appalling, I had hoped for better.
Laci wrote: "You are aware that the Civic Right interpretation of the Second Amendment was the only accepted one for nearly 70 years."
Delete1st you are incorrect, as the courts were all over the place in interpreting Miller. Hickman v Block (9th circ) adopeted a pure states right approach (citing Miller as upholding a conviction--- just like Stevens, LOL). See also, Love v. Pepersack, 47 F.3d 120, 123–24 (4th Cir. 1995); United States v. Warin, 530 F.2d 103, 106 (6th Cir.) (“It is clear that the Second Amendment guarantees a collective rather than an individual right.”). Then there are the two variant interpretations of what you seem to call the civic right model (obviously, you are not using Cornell's version thereof--- you are probably not even aware of it...). The first relates to individuals and their private weapons so long as the private use of those weapons involves training for and with the intention of joining a well regulated militia (I call it the Sgt York wannabes version). See U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942); Cases v. U.S., 131 F.2d 916 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943).. (Cases is quite interesting as it correctly identifies the ruling in Miller (weapon centric), but goes on to say Miller was not exhaustive, then made up its own rule--- However, we do not feel that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go. At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities,--almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,--is in effect to hold that the limitation of the Second Amendment is absolute.) The view that it protects members of the militia arose out of,United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996) (military nature of
arm insufficient to establish Second Amendment claim; its use must also relate to a well regulated
militia); United States v. Hale, 978 F.2d 1016 (8th Cir. 1992).
You are aware that seperate but equal was the law for almost 60 years?
I am comfortable enough that your demonstrated knowledge of 2nd Amend issues barely qualifies you as an amateur.
Lacey wrote: "BTW, based upon the fact that you are refusing to answer Dog Gone's question about where you went to law school, where you practise, and which brief you submitted--I can only assume that you are a cart00ney."
DeleteAs I told dog gone, you are free to believe anything you wish.... at least I knew what the ruling in Miller was, LOL
They are having a debate about Article I, Sec 8, Cl 15-16. They are not having a debate about the 2nd Amend.
ReplyDeleteWhat is the common thread between these passages in the Constitution?
I know you're an idiot, LegalEagle,so I'll answer it for you.
The Militia.
history is stupid and point less y do we need to know what happen in the past
ReplyDelete