Quote of the Day

Or further proof that the Second Amendment is about the militia: not private arms.

In the Virginia Constitutional  Ratification debates (MONDAY, June 16, 1788.) Right after Patrick Henry makes a comment about:

the clause which gives Congress the power of raising armies, and proceeded as follows: To me this appears a very alarming power, when unlimited. They are not only to raise, but to support, armies; and this support is to go to the utmost abilities of the United States. If Congress shall say that the general welfare requires it, they may keep armies continually on foot. There is no control on Congress in raising or stationing them. They may billet them on the people at pleasure. This unlimited authority is a most dangerous power: its principles are despotic. If it be unbounded, it must lead to despotism; for the power of a people in a free government is supposed to be paramount to the existing power.

We shall be told that, in England, the king, lords, and commons, have this power; that armies can be raised by the prince alone, without the consent of the people. How does this apply here? Is this government to place us in the situation of the English? Should we suppose this government to resemble king, lords, and commons, we of this state {411} should be like an English county. An English county Cannot control the government. Virginia cannot control the government of Congress any more than the county of Kent can control that of England. Advert to the power thoroughly. One of our first complaints, under the former government, was the quartering of troops upon us. This was one of the principal reasons for dissolving the connection with Great Britain. Here we may have troops in time of peace. They may be billeted in any manner — to tyrannize, oppress, and crush us.

James Madison says:

 "There never was a government without force. What is the meaning of government? An institution to make people do their duty. A government leaving it to a man to do his duty, or not, as he pleases, would be a new species of government, or rather no government at all."

Or in more detail:

He says that one ground of complaint, at the beginning of the revolution, was, that a standing army was quartered upon us. This was not the whole complaint. We complained because it was done without the local authority of this country — without the consent of the people of America. As to the exclusion of standing armies in the bill of rights of the states, we shall find that though, in one or two of them, there is something like a prohibition, yet, in most of them, it is only provided that no armies shall be kept without the legislative authority; that is, without the consent of the community itself. Where is the impropriety of saying that we shall have all army, if necessary? Does not the notoriety of this constitute security? If inimical nations were to fall upon us when defenceless, what would be the consequence? Would it be wise to say, that we should have no defence? Give me leave to say, that the only possible way to provide against standing armies is to make them unnecessary.
The way to do this is to organize and discipline our militia, so as to render them capable of defending the country against external invasions and internal insurrections. But it is urged that abuses may happen. How is it possible to answer objections against the possibility of abuses? It must strike every logical reasoner, that these cannot be entirely provided against. I really thought that the objection in the militia was at an end. Was there ever a constitution, in which if authority was vested, it must not have been executed by force, if resisted? Was it not in the contemplation of this state, when contemptuous proceedings were expected, to recur to something of this kind? How is it possible to have a more proper resource than this? That the laws of every country ought to be executed, cannot be denied. That force must be used if necessary, cannot be denied. Can any government be established, that will answer any put, pose whatever, unless force be provided for executing its {414} laws? The Constitution does not say that a standing army shall be called out to execute the laws. Is not this a more proper way? The militia ought to be called forth to suppress smugglers. Will this be denied? The case actually happened at Alexandria. There were a number of smugglers, who were too formidable for the civil power to overcome. The military quelled the sailors, who otherwise would have perpetrated their intentions. Should a number of smugglers have a number of ships, the militia ought to be called forth to quell them. We do not know but what there may be a combination of smugglers in Virginia hereafter. We all know the use made of the Isle of Man. It was a general depository of contraband goods. The Parliament found the evil so great, as to render it necessary to wrest it out of the hands of its possessor.
The honorable gentleman says that it is a government of force. If he means military force, the clause under consideration proves the contrary. There never was a government without force. What is the meaning of government? An institution to make people do their duty. A government leaving it to a man to do his duty or not, as he pleases, would be a new species of government, or rather no government at all. The ingenuity of the gentleman is remarkable in introducing the riot act of Great Britain. That act has no connection, or analogy, to any regulation of the militia; nor is there any thing in the Constitution to warrant the general government to make such an act. It never was a complaint, in Great Britain, that the militia could be called forth. If riots should happen, the militia are proper to quell it, to prevent a resort to another mode. As to the infliction of ignominious punishments, we have no ground of alarm, if we consider the circumstances of the people at large. There will be no punishments so ignominious as have been inflicted already. The militia law of every state to the north of Maryland is less rigorous than the particular law of this state. If a change be necessary to be made by the general government, it will be in our favor. I think that the people of those states would not agree to be subjected to a more harsh punishment than their own militia laws inflict. An observation fell from a gentleman, on the same side with myself, which deserves to be attended to. If we be dissatisfied with the national government, if we should choose to renounce {415} it, this is an additional safeguard to our defence. I conceive that we are peculiarly interested in giving the general government as extensive means as possible to protect us. If there be a particular discrimination between places in America, the Southern States are, from their situation and circumstances, most interested in giving the national government the power of protecting its members.

This can be found here:
http://www.constitution.org/rc/rat_va_13.htm

My point is the usual one I make that if one actually goes to the effort of reading the primary sources, they will find that the Second Amendment has been taken completely out of context.  There is far more evidence out there that the issue is civilian control of the military, rather than private ownership of firearms.

And the proposition that the Second Amendment in anyway sanctions rebellion is risable.

Militias, Tyrants and Ancient History

I thought I would repost and elaborate on a comment I made:

A well-regulated militia was seen as a bullwark against the establishment of a standing army (large military apparatus).

The founders were well aware of ancient history (Roman and Greek) and knew that tyrants wanted a large military.

In the exact sense, a tyrant is an individual who arrogates to himself the royal authority without having a right to it. This is how the Greeks understood the word 'tyrant': they applied it indifferently to good and bad princes whose authority was not legitimate. [Rousseau, "The Social Contract"]

IOW, if "Chief" Kessler wants to kill tyrants, then the next time he needs to make sure it's lethal shoots himself.

You have to remember the Tory quip about the War for Independence that they would rather be ruled by "one tyrant who was 3000 miles away than 3000 tyrants a mile away".

Also, don't forget that tyrrants can usurp power, which is why the militia is "well-regulated"--that is under civilian control (and the Domestic Violence Clause exists).  The entire standing  army v. militia debate was about how much control would there be over the military.  And makes it far more likely that the Second Amendment was intended on addressing the militia, not private arms, since the US Constitution says it is intended to address the common defence.

Let's put it this way, there is far more evidence that the Second Amendment was intended to protect the "Well-regulated Militia" than private arms.

Repost: Second Amendment Fallacies from the Federalist blog

Second Amendment Fallacies from the Federalist blog

This came from an experiment I did to see if I received different results from the google search "Second Amendment standing armies" performed outside the USA. It came as no surprise that the non-US results provided more scholarly articles than the gun right related results one received in the US.
Of course, Nothing I haven't been saying here before, but I still want to repeat this since it neds to be said:

Second Amendment Fallacies
By P.A. Madison on September 28, 2010
I wanted to take the opportunity today to add some late commentary over the court recent ruling in McDonald v. Chicago that extended the protection of an “individual right to possess a firearm unconnected with service in a militia” against state infringement which had been an open question since the earlier gun case of District of Columbia v. Heller. Specifically, I want to address obvious errors in the courts reasoning in supporting an “individual right to possess a firearm unconnected with service in a militia” under the Second Amendment.
Before I do, I want to add the disclaimer that I am not arguing for or against particular gun laws but only arguing gun laws, no matter how wise or foolish, are not in any way applicable to the Second Amendment. Owning a gun for personal defense is a far different principle from the keeping and bearing of arms as part of the military power of a State through a well-regulated militia that had always been compelled by State law.
The first error I’ll address is the one that treats the Second Amendment as though it confers a right directly to people of the States. The federal Constitution, and specifically the Second Amendment, did not confer anything to the people in terms of individual rights and freedoms for the simple reason they already possessed such rights through their own sovereignty under their own constitutions. It was the States with the approval of the people who gave to the new federal government and not the other way around.
Amendments were asked for and offered only to calm anti-federalists fears over future claims of power of national government to do such things as establish and compel worship to a national religion, enact laws of seditious libel, or disarm and replace state militias with a standing army, etc. The Second Amendment’s purpose was declaratory much like the Tenth Amendment. The principle it declares is that the security of a free people (State) is through a well-regulated militia for which the reason of keeping and bearing arms shall not be infringed because there can be no security in a standing army during times of peace.
Perhaps no one explained the principle behind the Second Amendment better than Tench Coxe when he wrote in the Pennsylvania Gazette, 1788:

The powers of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for the powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths entitled and accustomed to their arms, when compared with any possible [standing] army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared then, that we shall turn our arms each man against his own bosom? Congress have no right to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American.

James Madison said standing armies during peace were “the greatest danger to liberty.”
One might argue the Second Amendment says nothing about standing armies but neither does the Third Amendment and historians agree it is rooted in the practice of maintaining a standing army during times of peace where law required people to quarter those troops on their property.[1] One of the things that made standing armies so odious was they lived among the people.
When early American patriots spoke of bearing arms they were talking about the safeguards of liberty through security of an armed and well organized citizenry in contrast to safeguarding their homes and families through a standing army and not any private right to own and use a gun. New Hampshire Governor John Page in June of 1841 explains these safeguards through an armed citizenry require efficiency through laws and organization:

The “right of the people to keep and bear arms,” is a right dear to every freeman; arms should be in the hands of every citizen of the Republic, who is able to wield them, and it is the duty of Government to prescribe such rules of organization and discipline, as will give those arms the greatest possible efficiency.

Pennsylvania Governor John Andrew Shulze said in 1829, “The right to bear arms is another important right guaranteed to all our citizens by the [Pennsylvania] constitution.” This right says he, imposes on the “legislature the duty of so organizing and disciplining the whole body of the citizens, that they shall be able, not only to bear arms, but to use them with confidence and skill, ‘in defense of themselves and the States, ’ if such a necessity shall arise.”
History shows all the States required by law those capable of bearing arms to do so, whether they were required by law to supply their own private arms or given public arms to use. Eventually all the States did away with compelling citizens to provide their own arms and instead armed their militias with public arms. When Tench Coxe once spoke of “private arms” he was referring to his own State of Pennsylvania law that militia members provide themselves with their own musket, else the fines for missing muster days would be used to purchase a musket for those unable to provide their own.
Armed militias of the citizens served as a vital function of providing a community with an armed police force when needed since there were no established police forces in early America that could respond to such events as rioting mobs. Framer James Wilson’s home was surrounded by an angry mob of 200 (some armed) in 1779 that required the calling out of the militia the following morning to disperse.
The bearing of arms was never considered a fundamental right of individuals to personally keep and use firearms but rather viewed as a civic duty, an obligation of citizenship in the same breath as casting a ballot or jury duty. One of the early arguments against granting suffrage to woman was it could lead to the obligation of them bearing arms. Proof of the civic function of bearing arms can be found in the denial of citizenship under former naturalization laws when potential new citizens refused to take an oath to bear arms.
The United States in July of 1863 issued orders forbidding citizens of the city of Baltimore and County to keep arms except those with the constitutional right to keep arms being members of a militia.
The court calls “explicit evidence” the words “constitutional right to bear arms” under §14 of the Freedmen’s Bureau Act that the 39th Congress viewed the right to keep and bear arms as a “fundamental right.” However, the insertion of these words was in response to the arming of all white militias within former Mississippi that excluded blacks. In other words, §14 of the Freedmen’s Bureau Act actually supports arms of the citizenry under a well-regulated militia rather than an individual right to arms outside of the service of a militia.
It is important to note the Freedmen’s Bureau Act was limited only to former rebel States that were then under United States military jurisdiction which in return made the Second Amendment applicable under any laws made by Congress while administering law within these former States.
This fact became very apparent with an act of Congress on March 2, 1867 that disbanded all the armed militias within former rebel States, leading to the charge Congress was infringing citizen’s right to keep and bear arms. President Johnson called the disbanding of the militias as “contrary to the express declaration of the Constitution, that ‘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.’” In other words, it was the people who bear arms that were the well-regulated militias that provided for the security of a free State.
The majority makes a bizarre claim that the Civil Rights Act of 1866 “similarly sought to protect the right of all citizens to keep and bear arms” as the Freedmen’s Bureau Act did, even though the Civil Rights Act made no mention about bearing arms. The majority tries to slink around this inconvenience by suggesting the words “the right … to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal” was understood by some to include bearing arms.
How did the majority come to this wild conclusion?
They think Sen. Lyman Trumbull suggested the Freedmen’s Bureau Act would have protected the right to bear arms without the words “constitutional right to bear arms” inserted. In reality, all he said was the insertion of “constitutional right to bear arms” under the Freedmen’s Bureau Act had no “material effect” to the already existing section.
The Civil Rights Act of 1866 is a bad act to cite since its author, Sen. Trumbull, said it was only intended to enforce the privileges and immunities of citizens in the several States under §2 of Article IV, so “that a citizen of Massachusetts” could seek vindication or enforcement of a right in South Carolina courts. In other words, it isn’t horribly relevant since it was never viewed as advancing any personal rights under federal amendments to citizens under their own State.
Conclusion
Because all States compelled by law individual males of a certain age to keep arms (or arms were required to be stored in public armories) to bear when called upon to do so, dispels the idea of bearing arms was seen as a fundamental right for individual’s to own and use firearms outside of militia service. Instead, bearing arms was viewed as an obligation of citizenship in the service of the militia for both State and community defense and not anything to do with private firearms for personal use.
The declaratory principal found under the Second Amendment lies today in a dormant state due to the fact States no longer maintain and compel their citizens to serve in armed State militias as part of the security of a free State.
[1] Editorial comment: Not really true, There are drafts of the Second Amendment and other contemporary documents which make it quite clear that the existance of the militia was to prevent the establishment of a standing army. For Example:

XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

Vermont: [T]he people have a right to bear arms for the defence of themselves and the State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power (1777).
Virginia: That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

See also:

• Amendment II
• Amendment III
• First Congress Debate On Arms And Militia

Classic Post: The best question for "Individual Rights Scholars"

What about the issue of standing armies? Wasn't that a significant aspect of the debates surrounding the adoption of the Constitution?

The Anti-Federalist who called himself "Centinel" wrote a series of letters that appeared in the Philadelphia Independent Gazetteer in late 1787 and early 1788. He referred to standing armies in his second letter as "that grand engine of oppression."

The "Federal Farmer" wrote a series of letters that were published in the Poughkeepsie Country Journal in late 1787 and early 1788. In his third letter, he lamented that under the new Constitution Congress "will have unlimited power to raise armies, and to engage officers and men for any number of years." He then voiced his objection to standing armies:

I see so many men in American fond of a standing army, and especially among those who probably will have a large share in administering the federal system; it is very evident to me, that we shall have a large standing army as soon as the monies to support them can be possibly found. An army is not a very agreeable place of employment for the young gentlemen of many families.

He also stated in his thirteenth letter that "we all agree, that a large standing army has a strong tendency to depress and inslave the people."

Those in the Pennsylvania ratification convention who objected to the proposed Constitution published their views in the Pennsylvania Packet and Daily Advertiser on December 18, 1787, as The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to Their Constituents. In their address, these Pennsylvania delegates remarked that one of the helps to Congress completing "the system of despotism" is "when a numerous standing army shall render opposition vain." The delegates in the minority also stated that in case the new government "must be executed by force," the framers of the Constitution "have therefore made a provision for this purpose in a permanent STANDING ARMY, and a MILITIA that may be subjected to as strict discipline and government." They objected to a standing army because:

A standing army in the hands of a government placed so independent of the people, may be made a fatal instrument to overturn the public liberties; it may be employed to enforce the collection of the most oppressive taxes, and to carry into execution the most arbitrary measures. An ambitious man who may have the army at his devotion, may step up into the throne, and seize upon absolute power.

The Anti-Federalist who signed his 1788 essays in the Baltimore Maryland Gazette "A Farmer" gave historical examples in his second essay to show that "both political and civil liberty have long since ceased to exist in almost all the countries that now employ standing troops, and that their slavery has in every instance been effected and maintained by the instrumentality and invariable obedience of these living machines to their chief." He mentions not only that in England "a standing army is declared to be contrary to their constitution, and a militia the only natural and safe defense of a free people," but also that in America "the constitutions of all the States positively forbid any standing troops at all, much less laws for them." For example:

Massachusetts: "And as in times of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature."

Pennsylvania & North Carolina: "And as standing armies in the time of peace, are dangerous to liberty, they ought not to be kept up."

Maryland & Delaware: "That standing armies are dangerous to liberty, and ought not to be raised or kept without consent of the legislature."

"A Farmer" also mused in this essay: "I was persuaded that the grave would have closed on my bones, before this question would be publicly proposed in America. — Are we then to look up to a standing army for the defence of this soil from foreign invasion?" In his sixth essay, he included as a "great and manifest" defect in the proposed government "the manifest danger to public liberty from a standing army, without limitation of number, in time of peace."

If you read the literature, you find the issue was standing armies: in particular, a Federal Standing Army--not personal weapons.

The best question for "Individual Rights Scholars"

What about the issue of standing armies? Wasn't that a significant aspect of the debates surrounding the adoption of the Constitution?

The Anti-Federalist who called himself "Centinel" wrote a series of letters that appeared in the Philadelphia Independent Gazetteer in late 1787 and early 1788. He referred to standing armies in his second letter as "that grand engine of oppression."

The "Federal Farmer" wrote a series of letters that were published in the Poughkeepsie Country Journal in late 1787 and early 1788. In his third letter, he lamented that under the new Constitution Congress "will have unlimited power to raise armies, and to engage officers and men for any number of years." He then voiced his objection to standing armies:

I see so many men in American fond of a standing army, and especially among those who probably will have a large share in administering the federal system; it is very evident to me, that we shall have a large standing army as soon as the monies to support them can be possibly found. An army is not a very agreeable place of employment for the young gentlemen of many families.

He also stated in his thirteenth letter that "we all agree, that a large standing army has a strong tendency to depress and inslave the people."

Those in the Pennsylvania ratification convention who objected to the proposed Constitution published their views in the Pennsylvania Packet and Daily Advertiser on December 18, 1787, as The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to Their Constituents. In their address, these Pennsylvania delegates remarked that one of the helps to Congress completing "the system of despotism" is "when a numerous standing army shall render opposition vain." The delegates in the minority also stated that in case the new government "must be executed by force," the framers of the Constitution "have therefore made a provision for this purpose in a permanent STANDING ARMY, and a MILITIA that may be subjected to as strict discipline and government." They objected to a standing army because:

A standing army in the hands of a government placed so independent of the people, may be made a fatal instrument to overturn the public liberties; it may be employed to enforce the collection of the most oppressive taxes, and to carry into execution the most arbitrary measures. An ambitious man who may have the army at his devotion, may step up into the throne, and seize upon absolute power.

The Anti-Federalist who signed his 1788 essays in the Baltimore Maryland Gazette "A Farmer" gave historical examples in his second essay to show that "both political and civil liberty have long since ceased to exist in almost all the countries that now employ standing troops, and that their slavery has in every instance been effected and maintained by the instrumentality and invariable obedience of these living machines to their chief." He mentions not only that in England "a standing army is declared to be contrary to their constitution, and a militia the only natural and safe defense of a free people," but also that in America "the constitutions of all the States positively forbid any standing troops at all, much less laws for them." For example:

Massachusetts: "And as in times of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature."

Pennsylvania & North Carolina: "And as standing armies in the time of peace, are dangerous to liberty, they ought not to be kept up."

Maryland & Delaware: "That standing armies are dangerous to liberty, and ought not to be raised or kept without consent of the legislature."

"A Farmer" also mused in this essay: "I was persuaded that the grave would have closed on my bones, before this question would be publicly proposed in America. — Are we then to look up to a standing army for the defence of this soil from foreign invasion?" In his sixth essay, he included as a "great and manifest" defect in the proposed government "the manifest danger to public liberty from a standing army, without limitation of number, in time of peace."

If you read the literature, you find the issue was standing armies: in particular, a Federal Standing Army--not personal weapons.

A Second Amendment Reading List (Bibliography)

Here is a list of sources I found useful in understanding the Second Amendment and Militia History:

• Tom W. Bell, The Third Amendment: Forgotten but Not Gone, 2 William & Mary Bill of Rights J. 117 (1993).
• Willaim S. Fields and David T. Hardy, The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History, 35 Am. J. Legal Hist. 393 (1991).
• 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)
• Cress, Lawrence Delbert Cress. Citizens in Arms: The Army and the Militia in American Society to the War of 1812
• 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
• Riker, William H, Soldiers of the States
• One of the few Law Review articles discussing the historical militia is "The Militia Clause of the Constitution" by Frederick Wiener 54 Harvard Law Review 181(1940).
• 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
• Bogus, Carl T. THE HISTORY AND POLITICS OF SECOND AMENDMENT SCHOLARSHIP: A PRIMER, Chicago-Kent Law Review, Symposium on the Second Amendment, vol. 76, 2000: 3S
• Spitzer, Robert J. LOST AND FOUND: RESEARCHING THE SECOND AMENDMENT, Chicago-Kent Law Review,Symposium on the Second Amendment vol. 76, 2000: 349
• Don Higginbotham, The Federalized Militia Debate: A Neglected Aspect of Sec. ond Amendment Scholarship, 55 Wm. & Mary 0. 39.58 (1998)
• Don Higginbotham, "The Second Amendment in Historical Context", Constitutional Commentary, October, 1999.
• Cornell, Saul, A Well Regulated Militia The Founding Fathers and the Origins of Gun Control in America, ISBN: 978-0195147865 
• Saul Cornell, Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory, 16 Const. Comm. 221 (1999).
• John C. Davenport, The Second Amendment, Original Intent, and Firearms Acquisition in Colonial America, Unpublished Paper Given at the Omohundro Institute of Early American History and Culture’s Annual Colonial Conference, Boulder, Co. (June, 1996). 

Bibliography bibliography Schwoerer

Peace is Patriotic

This is a follow on to my The Second Amendment and the Military Industrial Complex post, which managed to jump to the top post on this blog in a little over two days, which beat the previous "number one" that had made it to its position in 8 Months!

The problem is that only two comments came in, one of which demonstrated that the commenter totally missed the point of the post.

The issue is not civic right v. individual right, but that the Constitution demonstrated the Anglo-American dislike of standing armies from the 17th and 18th Centuries. I also noted that there seemed to be an interesting correspondence to President Eisenhower's Military-Industrial Complex Speech and the appearance of the "individual right" (non-militia related) interpretationof the Second Amendment

The purpose of the Second and Third Amendments was to prevent the establishment of a Standing Army. That is there was the belief that it was against sound policy for a free people to keep up large military establishments and standing armies in time of peace. The warnigns expressed by the founders echoed that made by Eisenhower.

I have long said that the invasions of Iraq and Afghanistan were violations of my Second Amendment right, not gun control:

§ 1197. Notwithstanding the reasonableness of these suggestions, the power was made the subject of the most warm appeals to the people, to alarm their fears, and surprise their judgment. At one time it was said, that the militia under the command of the national government might be dangerous to the public liberty; at another, that they might be ordered to the most distant places, and burthened with the most oppressive services; and at another, that the states might thus be robbed of their immediate means of defence. Joseph Story, Commentaries on the Constitution 3:§§ 1195–97

There you go! Story backs me up aren’t Iraq and Afghanistan “the most distant places”? Aren’t these long tours of duty “burthened with the most oppressive services”?

Although, the military bodies seeing this service tends to be the professional standing army, but that was part of the founders' fear. The Second Amendment served the purpose of a security against standing armies by declaring security of a Free State is through an armed citizenry bearing their own kept arms as part of a well-regulated militia for which is the reason that it shall not be infringed. Disarming the citizens military force for that of a standing army was a well known fear.

Thus, the Second Amendment can simply be reduced to this principle: The right for persons to keep and bear arms as part of the military power of their State in order to make a national standing army within their midst unnecessary.

Unfortunately, we now live in a time where the Standing army is not only necessary, but the real form of national defence.

If anything, the Constitution is a more appropriate justification for the peace protesters than those who advocate "gun rights". There is more than enough Constitutional history and text to provide ammunition to shoot down the notion that the US Constitution in any way supports the "gun rights" concept.

The Concept of gun rights does not withstand scrutiny. On the other hand, there is more than enough evidence of an Anglo-American dislike for standing armies and that the Constitution intended to address that dislike.

When early American patriots spoke of bearing arms they were talking about the safeguards of liberty through security of an armed and well organized citizenry in contrast to safeguarding their homes and families through a standing army and not any constitutional right to privately own and use a gun outside of local restrictions.

See also:

• Military-Industrial Complex Speech, Dwight D. Eisenhower, 1961
• Documents on the First Congress Debate on Arms and Militia.
• Amendment II
• Amendment III
• Tom W. Bell, The Third Amendment: Forgotten but Not Gone, 2 William & Mary Bill of Rights J. 117 (1993).
• Willaim S. Fields and David T. Hardy, The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History, 35 Am. J. Legal Hist. 393 (1991).
• Cress, Lawrence Delbert Cress. Citizens in Arms: The Army and the Militia in American Society to the War of 1812
• Cunliffe, Marcus, Soldiers and Civilians: The Martial Spirit in America, 1775-1865
  
• 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 American: Revised Edition
• Riker, William H, Soldiers of the States
  
• One of the few Law Review articles discussing the historical militia is "The Militia Clause of the Constitution" by Frederick Wiener 54 Harvard Law Review 181(1940).
• 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

Second Amendment Fallacies from the Federalist blog

This came from an experiment I did to see if I received different results from the google search "Second Amendment standing armies" performed outside the USA. It came as no surprise that the non-US results provided more scholarly articles than the gun right related results one received in the US.

Of course, Nothing I haven't been saying here before, but I still want to repeat this since it neds to be said:

Second Amendment Fallacies
By P.A. Madison on September 28, 2010

I wanted to take the opportunity today to add some late commentary over the court recent ruling in McDonald v. Chicago that extended the protection of an “individual right to possess a firearm unconnected with service in a militia” against state infringement which had been an open question since the earlier gun case of District of Columbia v. Heller. Specifically, I want to address obvious errors in the courts reasoning in supporting an “individual right to possess a firearm unconnected with service in a militia” under the Second Amendment.

Before I do, I want to add the disclaimer that I am not arguing for or against particular gun laws but only arguing gun laws, no matter how wise or foolish, are not in any way applicable to the Second Amendment. Owning a gun for personal defense is a far different principle from the keeping and bearing of arms as part of the military power of a State through a well-regulated militia that had always been compelled by State law.

The first error I’ll address is the one that treats the Second Amendment as though it confers a right directly to people of the States. The federal Constitution, and specifically the Second Amendment, did not confer anything to the people in terms of individual rights and freedoms for the simple reason they already possessed such rights through their own sovereignty under their own constitutions. It was the States with the approval of the people who gave to the new federal government and not the other way around.

Amendments were asked for and offered only to calm anti-federalists fears over future claims of power of national government to do such things as establish and compel worship to a national religion, enact laws of seditious libel, or disarm and replace state militias with a standing army, etc. The Second Amendment’s purpose was declaratory much like the Tenth Amendment. The principle it declares is that the security of a free people (State) is through a well-regulated militia for which the reason of keeping and bearing arms shall not be infringed because there can be no security in a standing army during times of peace.

Perhaps no one explained the principle behind the Second Amendment better than Tench Coxe when he wrote in the Pennsylvania Gazette, 1788:

The powers of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for the powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths entitled and accustomed to their arms, when compared with any possible [standing] army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared then, that we shall turn our arms each man against his own bosom? Congress have no right to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American.

James Madison said standing armies during peace were “the greatest danger to liberty.”

One might argue the Second Amendment says nothing about standing armies but neither does the Third Amendment and historians agree it is rooted in the practice of maintaining a standing army during times of peace where law required people to quarter those troops on their property.[1] One of the things that made standing armies so odious was they lived among the people.

When early American patriots spoke of bearing arms they were talking about the safeguards of liberty through security of an armed and well organized citizenry in contrast to safeguarding their homes and families through a standing army and not any private right to own and use a gun. New Hampshire Governor John Page in June of 1841 explains these safeguards through an armed citizenry require efficiency through laws and organization:

The “right of the people to keep and bear arms,” is a right dear to every freeman; arms should be in the hands of every citizen of the Republic, who is able to wield them, and it is the duty of Government to prescribe such rules of organization and discipline, as will give those arms the greatest possible efficiency.

Pennsylvania Governor John Andrew Shulze said in 1829, “The right to bear arms is another important right guaranteed to all our citizens by the [Pennsylvania] constitution.” This right says he, imposes on the “legislature the duty of so organizing and disciplining the whole body of the citizens, that they shall be able, not only to bear arms, but to use them with confidence and skill, ‘in defense of themselves and the States, ’ if such a necessity shall arise.”

History shows all the States required by law those capable of bearing arms to do so, whether they were required by law to supply their own private arms or given public arms to use. Eventually all the States did away with compelling citizens to provide their own arms and instead armed their militias with public arms. When Tench Coxe once spoke of “private arms” he was referring to his own State of Pennsylvania law that militia members provide themselves with their own musket, else the fines for missing muster days would be used to purchase a musket for those unable to provide their own.

Armed militias of the citizens served as a vital function of providing a community with an armed police force when needed since there were no established police forces in early America that could respond to such events as rioting mobs. Framer James Wilson’s home was surrounded by an angry mob of 200 (some armed) in 1779 that required the calling out of the militia the following morning to disperse.

The bearing of arms was never considered a fundamental right of individuals to personally keep and use firearms but rather viewed as a civic duty, an obligation of citizenship in the same breath as casting a ballot or jury duty. One of the early arguments against granting suffrage to woman was it could lead to the obligation of them bearing arms. Proof of the civic function of bearing arms can be found in the denial of citizenship under former naturalization laws when potential new citizens refused to take an oath to bear arms.

The United States in July of 1863 issued orders forbidding citizens of the city of Baltimore and County to keep arms except those with the constitutional right to keep arms being members of a militia.

The court calls “explicit evidence” the words “constitutional right to bear arms” under §14 of the Freedmen’s Bureau Act that the 39th Congress viewed the right to keep and bear arms as a “fundamental right.” However, the insertion of these words was in response to the arming of all white militias within former Mississippi that excluded blacks. In other words, §14 of the Freedmen’s Bureau Act actually supports arms of the citizenry under a well-regulated militia rather than an individual right to arms outside of the service of a militia.

It is important to note the Freedmen’s Bureau Act was limited only to former rebel States that were then under United States military jurisdiction which in return made the Second Amendment applicable under any laws made by Congress while administering law within these former States.

This fact became very apparent with an act of Congress on March 2, 1867 that disbanded all the armed militias within former rebel States, leading to the charge Congress was infringing citizen’s right to keep and bear arms. President Johnson called the disbanding of the militias as “contrary to the express declaration of the Constitution, that ‘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.’” In other words, it was the people who bear arms that were the well-regulated militias that provided for the security of a free State.

The majority makes a bizarre claim that the Civil Rights Act of 1866 “similarly sought to protect the right of all citizens to keep and bear arms” as the Freedmen’s Bureau Act did, even though the Civil Rights Act made no mention about bearing arms. The majority tries to slink around this inconvenience by suggesting the words “the right … to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal” was understood by some to include bearing arms.

How did the majority come to this wild conclusion?

They think Sen. Lyman Trumbull suggested the Freedmen’s Bureau Act would have protected the right to bear arms without the words “constitutional right to bear arms” inserted. In reality, all he said was the insertion of “constitutional right to bear arms” under the Freedmen’s Bureau Act had no “material effect” to the already existing section.

The Civil Rights Act of 1866 is a bad act to cite since its author, Sen. Trumbull, said it was only intended to enforce the privileges and immunities of citizens in the several States under §2 of Article IV, so “that a citizen of Massachusetts” could seek vindication or enforcement of a right in South Carolina courts. In other words, it isn’t horribly relevant since it was never viewed as advancing any personal rights under federal amendments to citizens under their own State.

Conclusion

Because all States compelled by law individual males of a certain age to keep arms (or arms were required to be stored in public armories) to bear when called upon to do so, dispels the idea of bearing arms was seen as a fundamental right for individual’s to own and use firearms outside of militia service. Instead, bearing arms was viewed as an obligation of citizenship in the service of the militia for both State and community defense and not anything to do with private firearms for personal use.

The declaratory principal found under the Second Amendment lies today in a dormant state due to the fact States no longer maintain and compel their citizens to serve in armed State militias as part of the security of a free State.

[1] Editorial comment: Not really true, There are drafts of the Second Amendment and other contemporary documents which make it quite clear that the existance of the militia was to prevent the establishment of a standing army. For Example:

XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

Vermont: [T]he people have a right to bear arms for the defence of themselves and the State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power (1777).

Virginia: That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

See also:

• Amendment II
• Amendment III
• First Congress Debate On Arms And Militia

My Third Amendment rights have been violated!

One of the dumber arguments about the Second Amendment's importance is that it is Second. Using that logic, shouldn't the Third Amendment be pretty significant?

OK, quick, tell me what does the Third Amendment say? It was one of the Complaints that was mentioned in the Declaration of Independence. That should make it significant: shouldn't it???

And back to the "It's third in line" argument. Third place will get you a bronze medal in the Olympics as well as other awards. You can collect if your horse comes in third if you place a "show" bet, but you get paid the "show payoff" even if your horse comes in First.

Well, here it is:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

You can find out how important the founders thought this Amendment was by going here.

They even have where this was mentioned in the Declaration of Independence, which also mentioned the issue of "Standing Armies".

So, the Third Amendment is not unrelated the Second Amendment which was intended to prevent a Federal Standing Army. I guess that means "the Third Amendment protects the Second" to rip off another stupid "gun rights" comment.

And Sorry, Gun Cretins or Gun Loons, but I HAVE read the history of the Second Amendment and related PRIMARY SOURCES to come to the conclusion that the Civic right interpretation is the correct one for the Second Amendment. But that's not my point here.

My point is that up until the 1930s, the Second and Third Amendments had the least Supreme Court Jurisprudence. Screw that, they HAVE the least Supreme Court Jurisprudence with 6 cases for the Second Amendment and NONE for the Third. Mostly because it's hard as heck to misinterpret the Third Amendment (unlike the Second).

Although, it provides a great justification for the "Castle Doctrine" using Story:

§ 1893. This provision speaks for itself. Its plain object is to secure the perfect enjoyment of that great right of the common law, that a man's house shall be his own castle, privileged against all civil and military intrusion. The billetting of soldiers in time of peace upon the people has been a common resort of arbitrary princes, and is full of inconvenience and peril. In the petition of right (3 Charles I.), it was declared by parliament to be a great grievance.
Joseph Story, Commentaries on the Constitution 3:§ 1893

Actually, it's funny to read the primary sources on the Third Amendment, which really shouldn't be neglected: especially if you are going to argue the Civic Right Interpretation of the Second. This is because there IS a reason this is third, and it is related to the Second Amendment in that they both relate to the issue of standing armies and civilian control over the military, which was far more important that personal firearm ownership to the founders.

For more information on the History of the Third Amendment, try visiting:

* Tom W. Bell, The Third Amendment: Forgotten but Not Gone, 2 William & Mary Bill of Rights J. 117 (1993).
* Willaim S. Fields and David T. Hardy, The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History, 35 Am. J. Legal Hist. 393 (1991).

I think you will find an aversion to the maintenance of Standing Armies and civilian control over the military are common threads in Anglo-American history along with the history of other British Colonies. As other former British Colonies show, there was no common law concept of "gun rights" outside of militia duty.

Actually, it has been pointed out to me that the Soldiers and Sailors Civil Relief Act (SSCRA) gives service members certain special rights to terminate leases without penalty as well as to avoid eviction. Qualifying service members can also have their mortgages modified to cap the interest at 6%. The SSCRA makes no provision for just compensation to be made to the private parties who suffer the costs of its provisions; effectively, the owners of the affected properties have to bear all the costs.

So, join in the efforts of the Third Amendment Center in protecting this most important of rights! Fight the Soldiers and Sailors Civil Relief Act (SSCRA)!