Wednesday, April 17, 2013

The Meaning of the 2nd Amendment


 This is an interesting article in which the author discusses standing armies and the early rebellions, Shay's and The Whiskey. His conclusion:


And, finally, let us be reminded that the militias of Washington's time no longer exist. The Dick Act of 1903 and the National Defense Act (1916) redefined the system into what we now call the National Guard. Consequently, there is no place in our constitutional life for individual citizens arming themselves with military style weapons like the AR-15.

You may ask how we as a nation and the Supreme Court, as the final arbiter of constitutionality, got it so wrong for so long? Just reflect on how long we embraced the notion that a "black man" was property, or that a woman lacked the right to vote.


In all the twisting and turning that the pro-gun folks do they never seem to answer this.  Why did the sacred and beatific founding fathers include the first four words if the right was not to be limited to the militia?

They wouldn't have.

What's your opinion?  Please leave a comment.

26 comments:

  1. Wow, Mike! Could Laci not be bothered and had to outsource this drivel to you?

    You keep saying that we never seem to answer your question, but we answer it every time. Usually it's Laci who poses it, and he never returns to defend his position.

    As we've told you time and again, there's nothing in that first clause that says that the right is limited to the militia. Laci tries to make fancy sounding arguments that the clause limits the scope of the right, but his drivel doesn't stand up to scrutiny.

    As we've said before, the clause says Why the right is important--because of the necessity of a militia--a militia being, in the parlance of the time, the body of the people. The next phrase, which, despite your attempts to rewrite the rules of grammar, is the operative part of the sentence, says that the right is a right of the PEOPLE--a term used very specifically in the other amendments.

    This is important, because despite whatever changing form the organized militia has taken since the founding (and it's been tortured to the point of lacking all resemblance of its original design), this is irrelevant to the right guaranteed by the amendment. If it said "the right of the militia to keep and bear arms," you might have something in trying to limit its application to the National Guard and State Guard units, but the term used is "right of the people."

    When you combine this language with the long English Commonlaw right of free men to own weapons--weapons they could use to defend themselves and which they were expected to bring along when called to serve in either the militia or the posse comitatus, it's pretty clear that the founders intended to enshrine the long standing right to arms that the people already enjoyed.

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    1. You are passionate, Mozart, but you do not persuade.

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    4. There is no English "Commonlaw" right to weapons outside of the National Defence context:

      Blackstone said that the right of individuals to own arms only went as far as was "allowed by law":

      "The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. st. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."

      "And, lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next to the right of petitioning the king and parliament for redress of grievances; and lastly to the right of having and using arms for self-preservation and defense. And all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints."

      And, here's what the act from 1 W. & M. referenced by Blackstone said:

      "That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law." Blackstone said that the right of individuals to own arms only went as far as was "allowed by law":

      If there were a commonlaw right to arms, then Australia would still be suffering from mass shooting. IOW, you would expect to see that "right" manifested in some manner in other commonlaw jurisdictions.

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    5. It is rather unfortunate to our Laci, that he is the object of much bemusement at his difficulty in understanding the full ramifications of our Norman legal heritage, and is thusly incapable of understanding how a fundamental right to arms is implicit in common law.

      Like most of his kind, he seems bewildered by the gradual decay of Feudal nobility, and the progressive theme of equality among members of our species, regardless of sex, faith -or lack thereof-, or primeval heritage, and asserts the elitist notion that, had Britannia's courts felt bound to the rigors of law and precedent and served as the riotous bulwark of liberty, the Bill of Rights of 1689 would have been interpreted to apply to all persons equally. Common Law also provides certain absolute defenses to prosecution, which taken as a whole, are indicative of an individual right to posses and proliferate arms suitable for the defense of ones person, dwelling, and community. However, this seems lost on our canine friend as he appears to be mired in the simian (and somewhat racist perhaps) belief that humans are to be judged by ones caste, as opposed to individual merit.

      In accordance with his marked contempt for the truth (possibly spurred by his own ignorance), Laci asserts that the Australian constitution provided no legal protection for an individual right to keep and bear firearms. However, like many of Laci's irreverences, this is far from the truth. The Constitution of the Commonwealth of Australia barred the Federal government from infringing on the right to arms, by precluding the National Government from regulating firearms. The Howard Government, in a historically asinine move, decided to coerce and blackmail the States into a National Firearms Agreement, which enacted the prohibitive measures which are the scourge of an entire continent.

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    6. And unlike Britain or Australia, two nations that have lost contact with their traditions, we have a constitution that explicitly defines a number of rights to be protected. Laci, you keep dragging in things that aren't relevant to the discussion. Yes, you've read a lot. So have I. One important aspect of good reasoning is being able to determine when something belongs in an argument and when it doesn't.

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    7. Laci,

      You keep citing Blackstone, but I do no think it means what you think it means.

      You keep latching on to that “allowed by law” phrase, but it follows a statement that the people have a right to have arms. I find it hilarious that you would argue that the people have no right to arms, and try to prove that postulation using a passage that says that they do have such a right.

      Yes, it is true that there were legal restrictions laid on that right—as you note, Catholics couldn’t have arms. Catholics also had significantly restricted rights to the press, to free exercise of religion, etc. According to your logic, we should find that there was no common law right to any of these things as well.

      The founders had seen legal restrictions laid on the various “rights of Englishmen” and sought to cast off those restriction. They did away with religious tests, national churches, restrictions of arms to protestants, restrictions on publishing, etc. Therefore, while Blackstone notes that there were various limitations laid on the right to arms in his day and system, the founders created a system where far fewer limitations are justified.

      Toward the end of your missive, you cite Australia’s gun ban as proof that the right to arms does not exist. However, your own passages from Blackstone list it as a right. A limited one, but a right nonetheless. The fact that it has not been preserved in many common law jurisdictions does not disprove its existence in the past—only that those jurisdictions have abdicated that right in recent times.

      Finally, I’ll note that you love, in your hit and run entries on this blog, to call us insurrectionists and pontificate about how the founders never would have intended us to overthrow a tyrannical iteration of the U.S. Government. You also love to point to the militia language that prefaces the Second Amendment to say that it has no bearing on self defense. And yet, interestingly, your passages about the right to arms under English Common Law state that the right to arms is part of “the natural right of resistance and self-preservation,” and that they are allowed to use these arms as part of the last line of defense of their rights against their government after they have sought justice in the courts and by petitioning the king.

      That’s right—the idea that arms were for militia service, AND self defense, AND as a last line of defense against Tyranny predates the American Revolution, and this can be shown by simply reading, in more detail, your citations of Blackstone which you attempted to use to say that the right was merely a part of National Defense.

      You object to my calling your positions drivel, and you say that better examination of history and the source documents will prove your position, but it’s your analysis of Blackstone that doesn’t stand under the slightest critical evaluation. You attempted to tell us that Blackstone described no right to arms, but in his words, he Clearly refers to one. You attempted to tell us that any use of arms was limited to the context of national defense, yet the passages you cite speak of resistance and self-preservation when societal rules and laws do not protect us from the actions of criminals.

      You accuse me of telling fairy tales and repeating lies, but after reading your arguments and the passages from Blackstone that you used to back yourself up, I believe that a fair minded reader would agree that you should look in a mirror and stop projecting.

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    8. The corpse of John Harvey Kellogg rises again to satisfy his sexual repression by spewing nonsense.

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  2. I'm going to add that what you call drivel will probably be more common as people take the time to examine history and the primary source documents.

    Unfortunately, for your lot and your fairy tales, the stuff just doesn't stand scrutiny.

    Repeating lies will not make them true.

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  3. Laci - According to Congress, the President, and the Supreme Court, does the Constitution grant an individual right to own guns? Can you think of anything recently decided that would shed light on this?

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  4. Why do we have to explain this to you time after time after time? The introductory clause is why the Founders felt it necessary to write the amendment, but the right is identified as belonging to the people. I'm dismayed daily at how little your side understands grammar.

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    1. They don't care about grammar, or a textual interpretation based in plain fact.

      This isn't about grammatical correctness. It's about controlling YOU.

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  5. Hey Pooch,
    What is the palladium of liberty?

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  6. In the 18th century the concern was to make sure a militia fighting against the ruling powers (King George) could acquire arms. Neither the British, or the Americans were concerned that individuals would not have arms to put food on their tables, or protect their property from Indians, bears, or other dangers of 18th century life. The 2nd amendment is one sentence separated by a coma, which in English means one part defines the other part of the sentence. Nor did the young government have the funds to pay for arms and if you served in the militia you had to bring your own weapon, thus you had a right to own a weapon only if you were serving in the militia. They did not consider the right for non militia people since that was not a concern. So today that right would go to those serving in the armed government forces, but today our government supplies those members with weapons and the 2nd amendment does not apply. Just because the court got it wrong doesn't mean the right exists, and its only been since the mid 20th century that the court, or Americans applied an individual right from the 2nd amendment, for 200 years the courts and Americans did not interpret the 2nd amendment as an individual right. The court used to sanction discrimination (Jim Crow laws) and other wrong interpretations.

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    1. You mean those Jim Crow laws that barred black folk from owning guns?

      You get it right that nobody was concerned with whether or not they would be allowed weapons to put food on the table or to protect themselves--nobody ever thought the government would try to take those weapons away from people unless it had already become a tyranny.

      Where can you show me that they didn't consider the right to apply to "non-militia people"? Are you going to point to laws barring members of disfavored sects or oppressed races? Those show more about their flawed understanding of the concept of all men being equal than about the applicability of the right.

      Heck, if you look at Laci's Blackstone quotes above, they even show that before the US government, people were considered to have a right to own arms (yes, Laci denies this, but look at what Blackstone says).

      Finally, you try to make an argument based on grammar, but it falls apart when you read the whole sentence. The introductory phrase tells us why the right is important and ensconced in the Bill of Rights--Because the militia is needed. It then goes on to say that the right of the PEOPLE, not the state, not the government or the military, not the MILITIA, but the right of the PEOPLE to keep and bear arms shall not be infringed.

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    2. It's hard to tell from the comment which side Anonymous is on.

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    3. It's like Laci citing Blackstone--this Anonymous describes history that supports our side, and then makes an unfounded leap to saying that it supports gun control.

      I feel like Professor Diggory. Goodness Gracious! What Do they teach in schools these days!

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    4. That's because I'm not taking "sides" a simple minded response to any issue, or the idea that we can live under 18th century laws in the 21st century and on going. The founding fathers understood laws would have to change as society changed, if not, they would not have included an amendment process.

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    5. Now we've had references to C.S. Lewis and Eric Hofer on these pages in only a couple of days. Throw in Jefferson, and these post-modernists will suffer an apoplexy.

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    6. Anonymous,

      If I oversimplified your position, I apologize. You do seem to be in favor of more gun control and in favor of a slightly different understanding of the Second Amendment which puts you on the other side of the immediate issue at hand, but I can understand if you are not in exactly the same camp as Mike, or of Laci, or of, God forbid, Jadegold. Similarly, on this side of this debate, I suspect that Greg, Orlin, Kurt, Mustang, and I fall into different camps on various issues, and perhaps even on various nuances regarding guns.

      I'll agree with you that 18th Century laws do not translate directly to the modern day and that that is why we have the Amendment process.

      However, the founders did a pretty good job of writing the Constitution and the Bill of Rights in such a manner as to base them on principles rather than highly detailed specifics, so they have stood the test of time pretty well. We have taken the principles in the 4th Amendment and applied them to protect ourselves from unreasonable intrusion in the realm of phones, the Internet, etc. We didn't do a perfect job, and the last several Administrations have been eroding those protections at an accelerating rate, but that's our fault, not the Constitution's.

      On the topic of the militia, I think the system still has merits. Some other countries such as Switzerland, Finland, and Israel use their own variations on the concept, with Switzerland probably being the closest modern iteration.

      A return to reliance on a Militia could help us cut expenses as each person of serving age could be required to provide themselves with at least a minimum amount of gear, leaving the state or national governments to only need to foot the bill for extra ammo and for heavy equipment, vehicles, and things too dangerous for individuals to utilize, such as maintaining the nuclear arsenal. The planes and Nukes are things the founders couldn't anticipate, but looking at the framework they came up with, we could build on or modify it by amendment in such a way as to properly structure the system and clear up the gray areas that have developed over the past century.

      Before Mike and Laci get too excited about what I've said, as other gun controllers have when I have talked about this, "assault weapons" don't fit into the extra dangerous category. They are the standard infantry gear of our time, and therefore are the weapons most intended to be protected by the principle behind the Second Amendment.

      Anonymous, if I misjudged your position, I again apologize, and I stand ready and interested to hear your thoughts in reply to the above. It may be that we can come to a better understanding of each other and sharpen each other's ideas about how to apply the principles our government was built on in the modern age, and into the future.

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  7. When the state militias confronted the legally armed rebels, did the government seek taxes or to infringe on the right of the rebels to own and keep weapons?
    Nope, the government didn't seek to disarm the rebels, but merely to collect taxes.
    Guess the rebels weren't in the militia, but were legally armed as was their right.
    Got any more silly opinion writers you care to expose as idiots?

    orlin sellers

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  8. One more time. Laci, you didn’t get a chance to answer my question from a few weeks ago, so I’ll ask again while you are here:

    Under your interpretation of the Second Amendment, please explain why the Miller decision examined the gun Miller possessed and determined that a sawed-off shotgun is not suitable for militia purposes, instead of examining the man (Miller) and determining that he has no right to keep and bear any arms because he was not actively involved in a militia. Why would the gun matter under your interpretation? It shouldn’t matter if it was a sawed-off shotgun, a full length shotgun, a machine gun suitable for militia purposes, or a musket suitable for militia purposes in the 18th century- Miller had no right to keep and bear any arms because he was a part of the “people” and not part of the “militia”. That is what you say, but it is not consistent with Miller. So what would the decision have been if the gun Miller possessed had been determined by the courts to be suitable for militia purposes? The decision infers that it would be protected for individuals to keep and bear, yes?


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    1. Methinks Laci doesn't WANT to answer you.

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    2. I'll keep hounding him.

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