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You always lose a defensive battle in the end
- Thread Starter jjackffrost
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Original Intent and Purpose of the Second Amendment
Introduction
The Second Amendment:
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.
The original intent and purpose of the Second Amendment was to preserve and guarantee, not grant, the pre-existing right of individuals to keep and bear arms. Although the amendment emphasizes the need for a militia, membership in any militia, let alone a well-regulated one, was not intended to serve as a prerequisite for exercising the right to keep arms.
The Second Amendment preserves and guarantees an individual right for a collective purpose. That does not transform the right into a "collective right." The militia clause was a declaration of purpose, and preserving the people's right to keep and bear arms was the method the framers chose to, in-part, ensure the continuation of a well-regulated militia.
There is no contrary evidence from the writings of the Founding Fathers, early American legal commentators, or pre-twentieth century Supreme Court decisions, indicating that the Second Amendment was intended to apply solely to active militia members.
Evidence of an Individual Right
In his popular edition of Blackstone's Commentaries on the Laws of England (1803), St. George Tucker (see also), a lawyer, Revolutionary War militia officer, legal scholar, and later a U.S. District Court judge (appointed by James Madison in 1813), wrote of the Second Amendment:
The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government.
In the appendix to the Commentaries, Tucker elaborates further:
This may be considered as the true palladium of liberty... The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.
Not only are Tucker's remarks solid evidence that the militia clause was not intended to restrict the right to keep arms to active militia members, but he speaks of a broad right – Tucker specifically mentions self-defense.
"Because '[g]reat weight has always been attached, and very rightly attached, to contemporaneous exposition,' the Supreme Court has cited Tucker in over forty cases. One can find Tucker in the major cases of virtually every Supreme Court era." (Source: The Second Amendment in the Nineteenth Century)
(William Blackstone was an English jurist who published Commentaries on the Laws of England, in four volumes between 1765 and 1769. Blackstone is credited with laying the foundation of modern English law and certainly influenced the thinking of the American Founders.)
Another jurist contemporaneous to the Founders, William Rawle, authored "A View of the Constitution of the United States of America" (1829). His work was adopted as a constitutional law textbook at West Point and other institutions. In Chapter 10 he describes the scope of the Second Amendment's right to keep and bear arms:
The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.
This is another quote where it is obvious that "the people" refers to individuals since Rawle writes neither the states nor the national government has legitimate authority to disarm its citizens. This passage also makes it clear ("the prohibition is general") that the militia clause was not intended to restrict the scope of the right.
(In 1791 William Rawle was appointed United States Attorney for Pennsylvania by President George Washington, a post he held for more than eight years.)
Yet another jurist, Justice Story (appointed to the Supreme Court as an Associate Justice by James Madison in 1811), wrote a constitutional commentary in 1833 ("Commentaries on the Constitution of the United States"). Regarding the Second Amendment, he wrote (source):
The next amendment is: "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."
The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
As the Tennessee Supreme Court in Andrews v. State (1871) explains, this "passage from Story, shows clearly that this right was intended, as we have maintained in this opinion, and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights."
Story adds:
And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.
Story laments the people's lack of enthusiasm for maintaining a well-regulated militia. However, some anti-gun rights advocates misinterpret this entire passage as being "consistent with the theory that the Second Amendment guarantees a right of the people to be armed only when in service of an organized militia." (See Arms, Anarchy and the Second Amendment for an example of reaching that conclusion by committing a non-sequitur.)
The need for a well-regulated militia and an armed citizenry are not mutually exclusive, nor was the right to have arms considered dependent on membership in an active militia (more on that later). Rather, as illustrated by Tucker, Rawle, and Story, the militia clause and the right to arms were intended to be complementary.
More Evidence Supporting an Individual Right
After James Madison's Bill of Rights was submitted to Congress, Tench Coxe (see also: Tench Coxe and the Right to Keep and Bear Arms, 1787-1823) published his "Remarks on the First Part of the Amendments to the Federal Constitution," in the Federal Gazette, June 18, 1789 He asserts that it's the people (as individuals) with arms, who serve as the ultimate check on government:
As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.
"A search of the literature of the time reveals that no writer disputed or contradicted Coxe's analysis that what became the Second Amendment protected the right of the people to keep and bear 'their private arms.' The only dispute was over whether a bill of rights was even necessary to protect such fundamental rights." (Halbrook, Stephen P. "The Right of the People or the Power of the State Bearing Arms, Arming Militias, and the Second Amendment". Originally published as 26 Val. U. L.Rev. 131-207, 1991).
Earlier, in The Pennsylvania Gazette, Feb. 20, 1788, while the states were considering ratification of the Constitution, Tench Coxe wrote:
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 power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American...The unlimited power of the sword is not in the hands of either the federal or state governments but, where I trust in God it will ever remain, in the hands of the people.
The Federalist Papers
Alexander Hamilton in Federalist, No. 29, did not view the right to keep arms as being confined to active militia members:
What plan for the regulation of the militia may be pursued by the national government is impossible to be foreseen...The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution... Little more can reasonably be aimed at with the respect to the people at large than to have them properly armed and equipped ; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
James Madison in Federalist No. 46 wrote:
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments,to which the people are attached, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.
Here, like Story, Madison is expressing the idea that additional advantages accrue to the people when the citizens' right to arms is enhanced by having an organized and properly directed militia.
The Federalist Papers Continued – "The Original Right of Self-Defense"
The Founders realized insurrections may occur from time to time and it is the militia's duty to suppress them. They also realized that however remote the possibility of usurpation was, the people with their arms, had the right to restore their republican form of government by force, if necessary, as an extreme last resort.
"The original right of self-defense" is not a modern-day concoction. We now examine Hamilton's Federalist No. 28. Hamilton begins:
That there may happen cases in which the national government may be necessitated to resort to force cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes exist in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government) has no place but in the reveries of these political doctors whose sagacity disdains the admonitions of experimental instruction.
Hamilton explains that the national government may occasionally need to quell insurrections and it is certainly justified in doing so.
Hamilton continues:
If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.
Hamilton clearly states there exists a right of self-defense against a tyrannical government, and it includes the people with their own arms and adds:
[T]he people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!
Thus the militia is the ultimate check against a state or the national government. That is why the founders guaranteed the right to the people as opposed to only active militia members or a state's militia. But of course, via the militia clause, the Second Amendment acknowledges, as well, the right of a state to maintain a militia. (For more on militia see: Meaning of the words in the Second Amendment.)
Hamilton concludes, telling us the above scenario is extremely unlikely to occur:
When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning.
Again, it is the recurring theme of the people's right to keep and bear arms as individuals, enhanced by a militia system, that (in part) provides for the "security of a free state."
Connecting the Dots...
"The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution, and is appealed to by all parties in the questions to which that instrument has given birth. . . . "
--- The U.S. Supreme Court in Cohens v. Virginia (1821)
Although the Federalist Papers were written prior to the drafting of the Bill of Rights (but after the Constitution was sent to the states for ratification), the passages quoted, above, help explain the relationships that were understood between a well-regulated militia, the people, their governments, and the right to keep and bear arms. The Second Amendment did not declare or establish any new rights or novel principles.
The Purpose of the Militia Clause
"Collective rights theorists argue that addition of the subordinate clause qualifies the rest of the amendment by placing a limitation on the people's right to bear arms. However, if the amendment truly meant what collective rights advocates propose, then the text would read "[a] well regulated Militia, being necessary to the security of a free State, the right of the States to keep and bear Arms, shall not be infringed." However, that is not what the framers of the amendment drafted. The plain language of the amendment, without attenuate inferences therefrom, shows that the function of the subordinate clause was not to qualify the right, but instead to show why it must be protected. The right exists independent of the existence of the militia. If this right were not protected, the existence of the militia, and consequently the security of the state, would be jeopardized." (U.S. v. Emerson, 46 F.Supp.2d 598 (N.D.Tex. 1999))
For more information about justification clauses see: Volokh, Eugene, The Commonplace Second Amendment, (73 NYU L. Rev. 793 (1998)). (See also, Kopel, David, Words of Freedom, National Review Online, May 16, 2001.)
Parting Shots
There are 3 ways the Second Amendment is usually interpreted to deny it was intended to protect an individual right to keep and bear arms:
It protects a state's right to keep and bear arms.
The right is individual, but limited to active militia members because the militia clause narrows the right's scope.
The term "people" refers to the people collectively, rather than the people as individuals.
Yet, three jurists, who were contemporaries of the Founders, and wrote constitutional commentaries, read the Second Amendment as protecting a private, individual right to keep arms. There is no contrary evidence from that period (see Guncite's Is there contrary evidence? and Second Amendment challenge).
Instead of the "right of the people," the Amendment's drafters could have referred to the militia or active militia members, as they did in the Fifth Amendment, had they meant to restrict the right. (Additionally, see GunCite's page here showing evidence that the term, "people," as used in the Bill of Rights, referred to people as individuals.)
It strains credulity to believe the aforementioned three jurists misconstrued the meaning of the Second Amendment.
The only model that comports with all of the evidence from the Founding period is the one interpreting the Second Amendment as protecting an individual right for a collective purpose. The militia clause and the right to keep and bear arms were intended to be complementary.
Perversely, gun rights defenders are accused of creating a Second Amendment myth, when it is some present-day jurists and historians who have failed to give a full account of the historical record.
(The assertion that the Second Amendment was intended to protect an individual right should not be confused with the claim that all gun control is un-constitutional. However, to read why many gun rights advocates oppose most gun controls, today, please see GunCite's, Misrepresenting the Gun Control Debate.)
Introduction
The Second Amendment:
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.
The original intent and purpose of the Second Amendment was to preserve and guarantee, not grant, the pre-existing right of individuals to keep and bear arms. Although the amendment emphasizes the need for a militia, membership in any militia, let alone a well-regulated one, was not intended to serve as a prerequisite for exercising the right to keep arms.
The Second Amendment preserves and guarantees an individual right for a collective purpose. That does not transform the right into a "collective right." The militia clause was a declaration of purpose, and preserving the people's right to keep and bear arms was the method the framers chose to, in-part, ensure the continuation of a well-regulated militia.
There is no contrary evidence from the writings of the Founding Fathers, early American legal commentators, or pre-twentieth century Supreme Court decisions, indicating that the Second Amendment was intended to apply solely to active militia members.
Evidence of an Individual Right
In his popular edition of Blackstone's Commentaries on the Laws of England (1803), St. George Tucker (see also), a lawyer, Revolutionary War militia officer, legal scholar, and later a U.S. District Court judge (appointed by James Madison in 1813), wrote of the Second Amendment:
The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government.
In the appendix to the Commentaries, Tucker elaborates further:
This may be considered as the true palladium of liberty... The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.
Not only are Tucker's remarks solid evidence that the militia clause was not intended to restrict the right to keep arms to active militia members, but he speaks of a broad right – Tucker specifically mentions self-defense.
"Because '[g]reat weight has always been attached, and very rightly attached, to contemporaneous exposition,' the Supreme Court has cited Tucker in over forty cases. One can find Tucker in the major cases of virtually every Supreme Court era." (Source: The Second Amendment in the Nineteenth Century)
(William Blackstone was an English jurist who published Commentaries on the Laws of England, in four volumes between 1765 and 1769. Blackstone is credited with laying the foundation of modern English law and certainly influenced the thinking of the American Founders.)
Another jurist contemporaneous to the Founders, William Rawle, authored "A View of the Constitution of the United States of America" (1829). His work was adopted as a constitutional law textbook at West Point and other institutions. In Chapter 10 he describes the scope of the Second Amendment's right to keep and bear arms:
The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.
This is another quote where it is obvious that "the people" refers to individuals since Rawle writes neither the states nor the national government has legitimate authority to disarm its citizens. This passage also makes it clear ("the prohibition is general") that the militia clause was not intended to restrict the scope of the right.
(In 1791 William Rawle was appointed United States Attorney for Pennsylvania by President George Washington, a post he held for more than eight years.)
Yet another jurist, Justice Story (appointed to the Supreme Court as an Associate Justice by James Madison in 1811), wrote a constitutional commentary in 1833 ("Commentaries on the Constitution of the United States"). Regarding the Second Amendment, he wrote (source):
The next amendment is: "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."
The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
As the Tennessee Supreme Court in Andrews v. State (1871) explains, this "passage from Story, shows clearly that this right was intended, as we have maintained in this opinion, and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights."
Story adds:
And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.
Story laments the people's lack of enthusiasm for maintaining a well-regulated militia. However, some anti-gun rights advocates misinterpret this entire passage as being "consistent with the theory that the Second Amendment guarantees a right of the people to be armed only when in service of an organized militia." (See Arms, Anarchy and the Second Amendment for an example of reaching that conclusion by committing a non-sequitur.)
The need for a well-regulated militia and an armed citizenry are not mutually exclusive, nor was the right to have arms considered dependent on membership in an active militia (more on that later). Rather, as illustrated by Tucker, Rawle, and Story, the militia clause and the right to arms were intended to be complementary.
More Evidence Supporting an Individual Right
After James Madison's Bill of Rights was submitted to Congress, Tench Coxe (see also: Tench Coxe and the Right to Keep and Bear Arms, 1787-1823) published his "Remarks on the First Part of the Amendments to the Federal Constitution," in the Federal Gazette, June 18, 1789 He asserts that it's the people (as individuals) with arms, who serve as the ultimate check on government:
As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.
"A search of the literature of the time reveals that no writer disputed or contradicted Coxe's analysis that what became the Second Amendment protected the right of the people to keep and bear 'their private arms.' The only dispute was over whether a bill of rights was even necessary to protect such fundamental rights." (Halbrook, Stephen P. "The Right of the People or the Power of the State Bearing Arms, Arming Militias, and the Second Amendment". Originally published as 26 Val. U. L.Rev. 131-207, 1991).
Earlier, in The Pennsylvania Gazette, Feb. 20, 1788, while the states were considering ratification of the Constitution, Tench Coxe wrote:
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 power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American...The unlimited power of the sword is not in the hands of either the federal or state governments but, where I trust in God it will ever remain, in the hands of the people.
The Federalist Papers
Alexander Hamilton in Federalist, No. 29, did not view the right to keep arms as being confined to active militia members:
What plan for the regulation of the militia may be pursued by the national government is impossible to be foreseen...The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution... Little more can reasonably be aimed at with the respect to the people at large than to have them properly armed and equipped ; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
James Madison in Federalist No. 46 wrote:
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments,to which the people are attached, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.
Here, like Story, Madison is expressing the idea that additional advantages accrue to the people when the citizens' right to arms is enhanced by having an organized and properly directed militia.
The Federalist Papers Continued – "The Original Right of Self-Defense"
The Founders realized insurrections may occur from time to time and it is the militia's duty to suppress them. They also realized that however remote the possibility of usurpation was, the people with their arms, had the right to restore their republican form of government by force, if necessary, as an extreme last resort.
"The original right of self-defense" is not a modern-day concoction. We now examine Hamilton's Federalist No. 28. Hamilton begins:
That there may happen cases in which the national government may be necessitated to resort to force cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes exist in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government) has no place but in the reveries of these political doctors whose sagacity disdains the admonitions of experimental instruction.
Hamilton explains that the national government may occasionally need to quell insurrections and it is certainly justified in doing so.
Hamilton continues:
If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.
Hamilton clearly states there exists a right of self-defense against a tyrannical government, and it includes the people with their own arms and adds:
[T]he people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!
Thus the militia is the ultimate check against a state or the national government. That is why the founders guaranteed the right to the people as opposed to only active militia members or a state's militia. But of course, via the militia clause, the Second Amendment acknowledges, as well, the right of a state to maintain a militia. (For more on militia see: Meaning of the words in the Second Amendment.)
Hamilton concludes, telling us the above scenario is extremely unlikely to occur:
When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning.
Again, it is the recurring theme of the people's right to keep and bear arms as individuals, enhanced by a militia system, that (in part) provides for the "security of a free state."
Connecting the Dots...
"The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution, and is appealed to by all parties in the questions to which that instrument has given birth. . . . "
--- The U.S. Supreme Court in Cohens v. Virginia (1821)
Although the Federalist Papers were written prior to the drafting of the Bill of Rights (but after the Constitution was sent to the states for ratification), the passages quoted, above, help explain the relationships that were understood between a well-regulated militia, the people, their governments, and the right to keep and bear arms. The Second Amendment did not declare or establish any new rights or novel principles.
The Purpose of the Militia Clause
"Collective rights theorists argue that addition of the subordinate clause qualifies the rest of the amendment by placing a limitation on the people's right to bear arms. However, if the amendment truly meant what collective rights advocates propose, then the text would read "[a] well regulated Militia, being necessary to the security of a free State, the right of the States to keep and bear Arms, shall not be infringed." However, that is not what the framers of the amendment drafted. The plain language of the amendment, without attenuate inferences therefrom, shows that the function of the subordinate clause was not to qualify the right, but instead to show why it must be protected. The right exists independent of the existence of the militia. If this right were not protected, the existence of the militia, and consequently the security of the state, would be jeopardized." (U.S. v. Emerson, 46 F.Supp.2d 598 (N.D.Tex. 1999))
For more information about justification clauses see: Volokh, Eugene, The Commonplace Second Amendment, (73 NYU L. Rev. 793 (1998)). (See also, Kopel, David, Words of Freedom, National Review Online, May 16, 2001.)
Parting Shots
There are 3 ways the Second Amendment is usually interpreted to deny it was intended to protect an individual right to keep and bear arms:
It protects a state's right to keep and bear arms.
The right is individual, but limited to active militia members because the militia clause narrows the right's scope.
The term "people" refers to the people collectively, rather than the people as individuals.
Yet, three jurists, who were contemporaries of the Founders, and wrote constitutional commentaries, read the Second Amendment as protecting a private, individual right to keep arms. There is no contrary evidence from that period (see Guncite's Is there contrary evidence? and Second Amendment challenge).
Instead of the "right of the people," the Amendment's drafters could have referred to the militia or active militia members, as they did in the Fifth Amendment, had they meant to restrict the right. (Additionally, see GunCite's page here showing evidence that the term, "people," as used in the Bill of Rights, referred to people as individuals.)
It strains credulity to believe the aforementioned three jurists misconstrued the meaning of the Second Amendment.
The only model that comports with all of the evidence from the Founding period is the one interpreting the Second Amendment as protecting an individual right for a collective purpose. The militia clause and the right to keep and bear arms were intended to be complementary.
Perversely, gun rights defenders are accused of creating a Second Amendment myth, when it is some present-day jurists and historians who have failed to give a full account of the historical record.
(The assertion that the Second Amendment was intended to protect an individual right should not be confused with the claim that all gun control is un-constitutional. However, to read why many gun rights advocates oppose most gun controls, today, please see GunCite's, Misrepresenting the Gun Control Debate.)
- Messages
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- Thread Starter
- #3
"Nobody Wants to Take Your Guns."
Introduction
Gun rights organizations are often criticized for not "compromising" or not agreeing to "reasonable" gun controls. Gun owners are chided for being paranoid, after all nobody wants to take away their guns.
First, the word compromise in this context is a misnomer. The term "give-back" or surrender is more appropriate because no guarantee against further erosion of gun owners' rights is ever put into law. The anti-control groups never receive concessions in return for any new gun control law.
Gun owners do have legitimate cause for concern. Although a majority of Americans do not want handguns outlawed, a significant minority does. In nation-wide polls taken over the last twenty-five years around 40% are in favor of banning the civilian possession of handguns. Almost 20% are in favor of banning the civilian possession of any kind of firearm. (Source: Kleck, Gary, Targeting Guns: Firearms and Their Control, p 105, 345-46. Walter de Gruyter, Inc., New York 1997) (Civilian handgun possession is outlawed in Washington D.C., Chicago, and in several Chicago suburbs [source].)
It is this significant minority which often makes it difficult for gun rights organizations to put their faith in what may seem like "reasonable solutions". For example, many have suggested firearms be controlled by the same consumer agencies that regulate other products. However the following quotes don't exactly engender trust in such an arrangement:
My general counsel tells me that while firearms are exempted from our jurisdiction under the Consumer Product Safety Act, we could possibly ban bullets under the Hazardous Substances Act.
--- Richard O. Simpson, Chairman, U.S. Consumer Product Safety Commission. 1973.
Firearms are currently exempt from the health and safety laws that apply to every other consumer product in America, from toasters to teddy bears. Applying those same standards to guns is the real key to reducing firearm death and injury in America. Under these standards, handguns would be banned because of their high risk and low utility.
--- "The False Hope of the Smart Gun," Violence Policy Center (cited March 16, 1999).
"Reasonable" Gun Control
[Emphasis original]
Handgun Control, Inc., and the Center to Prevent Handgun Violence represent the moderate position on gun safety. The misrepresentations of the gun lobby aside, Handgun Control,Inc., seeks common-sense gun policies that encourage responsible gun ownership. --- "For Gun Owners Only," Handgun Control Inc. (cited March 16, 1999) [Source URL, <broken link removed>, was removed. Copy of original available at http://www.guncite.com/gun_control_hci_forgunownersonly.html
We Are NOT "Gun Banners"-and never have been... Handgun Control, Inc., has never advocated banning firearms used for legitimate purposes such as hunting and recreation.
--- "Gun Measures We Don't Support," Handgun Control Inc. (cited March 16, 1999) [Source URL, <broken link removed>, was removed. Copy of original available at http://www.guncite.com/gun_control_hci_measureswedontsupport.html
Hopefully you noticed Handgun Control, Inc. (HCI) doesn't include self-defense as a "legitimate purpose" for owning a firearm.
Though they claim to not be gun banners, they did file a friend of the court brief in the appeal of the Morton Grove case. (In 1981, Morton Grove, Illinois was the first U.S. city to ban civilian possession of handguns. Source: Halbrook, Stephen P., What the Framers Intended: A Linguistic Analysis of the Right to "Bear Arms". Originally published as 49 Law & Contemp. Probs. 151-162, 1986.)
Further, HCI petitioned (in 1974) the Consumer Product Safety Commission (CPSC) to ban, not handguns (since Congress specifically exempted firearms from CPSC jurisdiction to avoid the potential of a few regulators banning firearms manufacture), but handgun ammunition in "interstate commerce with the exception of use by the military, police, security guards, and gun clubs." (388 F.Supp 216 [1975]. Committee for Hand Gun Control, Inc. v Consumer Product Safety Commission, et al; D.C. Dist. Ct. Dec. 19, 1974. See also Petition On Hand Gun Ammunition Published In Federal Register)
Here is an example of what some congressional representatives consider to be reasonable gun control:
Mr. Speaker, I rise to introduce the Public Health and Safety Act of 1993 on behalf of myself and nine of my colleagues: Mel Reynolds, Bill Clay, Jerry Nadler, Eleanor Holmes Norton, John Lewis, Nydia Velazquez, Ron Dellums, Carrie Meek, and Alcee Hastings. This legislation, first introduced in the Senate by Senator John Chafee, would prohibit the transfer or possession of handguns and handgun ammunition, except in limited circumstances. It would go a long way toward protecting our citizens from violent crime.
The need for a ban on handguns cannot be overstated. Unlike rifles and shotguns, handguns are easily concealable. Consequently, they are the weapons of choice in most murders, accounting for the deaths of 25,000 Americans in 1991.
A 6-month grace period would be established during which time handguns could be turned in to any law enforcement agency with impunity and for reimbursement at the greater of $25 or the fair market value of the handgun . After the grace period's expiration, handguns could be turned in voluntarily with impunity from criminal prosecution, but a civil fine of $500 would be imposed.
Exemptions from the handgun ban would be permitted for Federal, State, or local government agencies, including military and law enforcement; collectors of antique firearms; federally licensed handgun sporting clubs; federally licensed professional security guard services; and federally licensed dealers, importers, or manufacturers.
The Public Health and Safety Act of 1993 represents a moderate, middle-of-the-road approach to handgun control which deserves the support of all members of Congress who want to stop gun murders now.
--- Hon. Major R. Owens (Rep. NY, Introduction of the Public Health and Safety Act of 1993, Extension of Remarks - September 23, 1993. Congressional Record, 103rd Congress, 1993-1994)
More Quotes from Politicians, Periodicals, and Prominent Persons
Mr. President, what is going on in this country? Does going to school mean exposure to handguns and to death? As you know, my position is we should ban all handguns, get rid of them, no manufacture, no sale, no importation, no transportation, no possession of a handgun . There are 66 million handguns in the United States of America today, with 2 million being added every year.
--- Senator John H. Chafee, Rhode Island (June 11, 1992, Congressional Record, 102nd Congress, 1991-1992)
Mr. speaker, we must take swift and strong action if we are to rescue the next generation from the rising of tide armed violence. That is why today I am introducing the Handgun Control Act of 1992. This legislation would outlaw the possession, importation, transfer or manufacture of a handgun except for use by public agencies, individuals who can demonstrate to their local police chief that they need a gun because of threat to their life or the life of a family member, licensed guard services, licensed pistol clubs which keep the weapons securely on premises, licensed manufacturers and licensed gun dealers.
--- Rep. Stephen J. Solarz, New York (August 12, 1992, Congressional Record, 102nd Congress, 1991-1992, Daily Edition E2492-2493.)
Twenty years ago, I asked Richard Nixon what he thought of gun control. His on-the-record reply: 'Guns are an abomination.' Free from fear of gun owners' retaliation at the polls, he favored making handguns illegal and requiring licenses for hunting rifles.
--- William Safire (originally from a New York Times column), Los Angeles Daily News, June 15, 1999, P. 15.
The only way to discourage the gun culture is to remove the guns from the hands and shoulders of people who are not in the law enforcement business.
--- New York Times, September 24, 1975
There is no reason for anyone in this country, for anyone except a police officer or a military person, to buy, to own, to have, to use, a handgun. The only way to control handgun use in this country is to prohibit the guns. And the only way to do that is to change the Constitution.
--- Michael Gartner, former NBC News President, USA Today, January 16, 1992
The goal is an ultimate ban on all guns, but we also have to take step at a time and go for limited access first.
--- Joyner Sims, Florida State Health Dept., Deputy Commissioner, Chicago Tribune, November 7, 1993
Gun violence won't be cured by one set of laws. It will require years of partial measures that will gradually tighten the requirements for gun ownership, and incrementally change expectations about the firepower that should be available to ordinary citizens.
--- New York Times, December 21, 1993
We are inclined to think that every firearm in the hands of anyone who is not a law enforcement officer constitutes an incitement to violence. Let's come to our senses before the whole country starts shooting itself up on all its Main Streets in a delirious kind of High Noon.
--- Washington Post, August 19, 1965
By a curiosity of evolution, every human skull harbors a prehistoric vestige: a reptilian brain. This atavism, like a hand grenade cushioned in the more civilized surrounding cortex, is the dark hive where many of mankind's primitive impulses originate. To go partners with that throwback, Americans have carried out of their own history another curiosity that evolution forgot to discard as the country changed from a sparsely populated, underpoliced agrarian society to a modern industrial civilization. That vestige is the gun -- most notoriously the handgun, an anachronistic tool still much in use.
--- Time, April 13, 1981
We are beyond the stage of restrictive licensing and uniform laws. We are at the point in time and terror when nothing short of a strong uniform policy of domestic disarmament will alleviate the danger which is crystal clear and perilously present. Let us take the guns away from the people. Exemptions should be limited to the military, the police and those licensed for good and sufficient reasons.
--- Patrick V. Murphy, New York City Police Commissioner, December 7, 1970
As you probably know by now, Time's editors, in the April 13 issue, took a strong position in support of an outright ban on handguns for private use.
--- Time Magazine, Letter to NRA, April 24, 1981
If it was up to me, no one but law enforcement officers would own hand guns...
--- Chicago Mayor Richard Daley Federal Gun Legislation Press Conference in Washington, D.C., November 13, 1998. (Cited 3/05/2000)
The League, therefore, supports a ban on the further manufacture, sale, transportation and importation for private ownership of handguns and their parts.
--- League of Women Voters of Illinois Gun Control Position-in-Brief (cited 3/05/2000). [The League of Illinois subsequently truncated their statement on the Web to the first paragraph of the just cited Web page: "The League supports legislative controls to stop the proliferation of private ownership of handguns and their irresponsible use. The League advocates restricting access to semi-automatic assault type weapons." (League of Women Voters of Illinois: 2001-2003 Positions in Brief (PDF) (cited 9/10/2002)]
No presidential candidate has yet come out for the most effective proposal to check the terror of gunfire: a ban on the general sale, manufacture and ownership of handguns as well as assault-style weapons.
--- Guns Along the Campaign Trail, Washington Post, Monday, July 19, 1999, Page A18.
Straight from the Mouth of a U.S. Government Attorney
The U.S. government argues in federal court (U.S. v. Emerson information page) that there is absolutely no right of an individual to own firearms!
Judge Garwood: "You are saying that the Second Amendment is consistent with a position that you can take guns away from the public? You can restrict ownership of rifles, pistols and shotguns from all people? Is that the position of the United States?"
Meteja (attorney for the government): "Yes"
Garwood: "Is it the position of the United States that persons who are not in the National Guard are afforded no protections under the Second Amendment?"
Meteja: "Exactly."
Meteja then said that even membership in the National Guard isn't enough to protect the private ownership of a firearm. It wouldn't protect the guns owned at the home of someone in the National Guard.
Garwood: "Membership in the National Guard isn't enough? What else is needed?"
Meteja: "The weapon in question must be used IN the National Guard."
(Excerpt of oral arguments in U.S. v. Emerson, 5th Circuit Court of Appeals, June 13, 2000)
Recognized Public Health Professionals and Sociologists
The United States should follow the example of every other industrialized country by placing substantial restrictions on the manufacture, sale, and possession of handguns. Semiautomatic weapons that have the capacity to fire dozens of bullets in a manner of seconds should be banned for sale to private citizens. Permits for the possession of handguns for sporting purposes should require that the guns be kept at a licensed firing range. Other than that, laws should limit handgun possession to police officers and licensed private security guards.
--- Webster, Daniel W., C. Patrick Chaulk, Stephen P. Teret, and Garen J. Wintemute, "Reducing Firearm Injuries," Issues in Science and Technology, Spring 1991, p.78.
"The last doubt as to the real intentions of at least certain influential members of the Commission, with regard to privately-owned firearms, was dispelled by our Research Director of the 'task force on gun control,' Mr. Zimring. While we were discussing the polls which ask people about their weapons, and the 'downard bias' so invariably encountered, we asked Mr. Zimring why people were so suspicious.
"He replied quite promptly, and with a frankness he will no doubt be made to regret: 'It's because we're coming to get their guns.'"
--- Huck, Susan L. M., "The Gun Grab: Watching The New Violence Commission," American Opinion, October 1968, p. 24.
More Zimring:
[T]he choice in handgun control is between two unpalatable alternatives. Gun Control in the twenty-first century will either be an expensive, unpopular, and untested attempt at bringing the U.S. handgun policy to the standard of the rest of the developed world, or it will consist of minor adjustments to current regulations that will all but guarantee persisting high rates of death. It is likely that this hard choice will amount to the definitive referendum on lethal violence in the United States.
--- Zimring, Franklin E., and Gordon Hawkings, Crime is Not the Problem: Lethal Violence in America, Oxford University Press, 1997, p.201.
More Quotes
The following quotes are excerpted from, "Under Fire: The New Consensus on the Second Amendment", by Randy E. Barnett and Don B. Kates (Originally published as 45 Emory L.J. 1139-1259, 1996).
Recommending that federal law limit ordinary citizens to "ownership [only] of sporting and hunting weapons,"
--- Taming the Gun Monster: How Far to Go, L.A. Times, Oct. 22 (editorial)
Under our plan individuals could own sporting weapons only if they had submitted to a background check and passed a firearms safety course. Other special, closely monitored exceptions could be made, such as for serious collectors.
--- Taming the Monster: The Guns Among Us, L.A. Times, Dec. 10, 1993 (editorial).
My own view on gun control is simple. I hate guns and I cannot imagine why anyone would want to own one. If I had my way, guns for sport would be registered, and all other guns, would be banned.
--- Deborah Prothrow-Stith, Dean of the Harvard School of Public Health
Mutual protection should be the aim of citizens, not individual self-protection. Until we are willing to outlaw, the very existence or manufacture of civilian handguns we have no right to call ourselves citizens or consider our behavior even minimally civil.
--- Garry Wills [historian/writer], John Lennon's war, Chi. Sun-times, Dec. 12, 1980.
Wills has also written "Every civilized society must disarm its citizens against each other. Those who do not trust their own people become predators upon their own people. The sick thing is that haters of fellow Americans often think of themselves as patriots."...
--- Or Worldwide Gun Control?,Phila. Inquirer, May 17, 1981.
The only reason for guns in civilian hands is for sporting purposes.
--- Sarah Brady, Jackson, Keeping the Battle Alive, Tampa Trib., Oct. 21, 1993 (interview with Sarah Brady).
Denouncing defensive gun ownership as "anarchy, not order under law--a jungle where each relies on himself for survival," and an insult to government, for "[a] state in which a citizen needs a gun to protect himself from crime has failed to perform its first purpose.
--- Ramsey Clark, former U.S. Attorney General, Crime in America 107 (1970)
Introduction
Gun rights organizations are often criticized for not "compromising" or not agreeing to "reasonable" gun controls. Gun owners are chided for being paranoid, after all nobody wants to take away their guns.
First, the word compromise in this context is a misnomer. The term "give-back" or surrender is more appropriate because no guarantee against further erosion of gun owners' rights is ever put into law. The anti-control groups never receive concessions in return for any new gun control law.
Gun owners do have legitimate cause for concern. Although a majority of Americans do not want handguns outlawed, a significant minority does. In nation-wide polls taken over the last twenty-five years around 40% are in favor of banning the civilian possession of handguns. Almost 20% are in favor of banning the civilian possession of any kind of firearm. (Source: Kleck, Gary, Targeting Guns: Firearms and Their Control, p 105, 345-46. Walter de Gruyter, Inc., New York 1997) (Civilian handgun possession is outlawed in Washington D.C., Chicago, and in several Chicago suburbs [source].)
It is this significant minority which often makes it difficult for gun rights organizations to put their faith in what may seem like "reasonable solutions". For example, many have suggested firearms be controlled by the same consumer agencies that regulate other products. However the following quotes don't exactly engender trust in such an arrangement:
My general counsel tells me that while firearms are exempted from our jurisdiction under the Consumer Product Safety Act, we could possibly ban bullets under the Hazardous Substances Act.
--- Richard O. Simpson, Chairman, U.S. Consumer Product Safety Commission. 1973.
Firearms are currently exempt from the health and safety laws that apply to every other consumer product in America, from toasters to teddy bears. Applying those same standards to guns is the real key to reducing firearm death and injury in America. Under these standards, handguns would be banned because of their high risk and low utility.
--- "The False Hope of the Smart Gun," Violence Policy Center (cited March 16, 1999).
"Reasonable" Gun Control
[Emphasis original]
Handgun Control, Inc., and the Center to Prevent Handgun Violence represent the moderate position on gun safety. The misrepresentations of the gun lobby aside, Handgun Control,Inc., seeks common-sense gun policies that encourage responsible gun ownership. --- "For Gun Owners Only," Handgun Control Inc. (cited March 16, 1999) [Source URL, <broken link removed>, was removed. Copy of original available at http://www.guncite.com/gun_control_hci_forgunownersonly.html
We Are NOT "Gun Banners"-and never have been... Handgun Control, Inc., has never advocated banning firearms used for legitimate purposes such as hunting and recreation.
--- "Gun Measures We Don't Support," Handgun Control Inc. (cited March 16, 1999) [Source URL, <broken link removed>, was removed. Copy of original available at http://www.guncite.com/gun_control_hci_measureswedontsupport.html
Hopefully you noticed Handgun Control, Inc. (HCI) doesn't include self-defense as a "legitimate purpose" for owning a firearm.
Though they claim to not be gun banners, they did file a friend of the court brief in the appeal of the Morton Grove case. (In 1981, Morton Grove, Illinois was the first U.S. city to ban civilian possession of handguns. Source: Halbrook, Stephen P., What the Framers Intended: A Linguistic Analysis of the Right to "Bear Arms". Originally published as 49 Law & Contemp. Probs. 151-162, 1986.)
Further, HCI petitioned (in 1974) the Consumer Product Safety Commission (CPSC) to ban, not handguns (since Congress specifically exempted firearms from CPSC jurisdiction to avoid the potential of a few regulators banning firearms manufacture), but handgun ammunition in "interstate commerce with the exception of use by the military, police, security guards, and gun clubs." (388 F.Supp 216 [1975]. Committee for Hand Gun Control, Inc. v Consumer Product Safety Commission, et al; D.C. Dist. Ct. Dec. 19, 1974. See also Petition On Hand Gun Ammunition Published In Federal Register)
Here is an example of what some congressional representatives consider to be reasonable gun control:
Mr. Speaker, I rise to introduce the Public Health and Safety Act of 1993 on behalf of myself and nine of my colleagues: Mel Reynolds, Bill Clay, Jerry Nadler, Eleanor Holmes Norton, John Lewis, Nydia Velazquez, Ron Dellums, Carrie Meek, and Alcee Hastings. This legislation, first introduced in the Senate by Senator John Chafee, would prohibit the transfer or possession of handguns and handgun ammunition, except in limited circumstances. It would go a long way toward protecting our citizens from violent crime.
The need for a ban on handguns cannot be overstated. Unlike rifles and shotguns, handguns are easily concealable. Consequently, they are the weapons of choice in most murders, accounting for the deaths of 25,000 Americans in 1991.
A 6-month grace period would be established during which time handguns could be turned in to any law enforcement agency with impunity and for reimbursement at the greater of $25 or the fair market value of the handgun . After the grace period's expiration, handguns could be turned in voluntarily with impunity from criminal prosecution, but a civil fine of $500 would be imposed.
Exemptions from the handgun ban would be permitted for Federal, State, or local government agencies, including military and law enforcement; collectors of antique firearms; federally licensed handgun sporting clubs; federally licensed professional security guard services; and federally licensed dealers, importers, or manufacturers.
The Public Health and Safety Act of 1993 represents a moderate, middle-of-the-road approach to handgun control which deserves the support of all members of Congress who want to stop gun murders now.
--- Hon. Major R. Owens (Rep. NY, Introduction of the Public Health and Safety Act of 1993, Extension of Remarks - September 23, 1993. Congressional Record, 103rd Congress, 1993-1994)
More Quotes from Politicians, Periodicals, and Prominent Persons
Mr. President, what is going on in this country? Does going to school mean exposure to handguns and to death? As you know, my position is we should ban all handguns, get rid of them, no manufacture, no sale, no importation, no transportation, no possession of a handgun . There are 66 million handguns in the United States of America today, with 2 million being added every year.
--- Senator John H. Chafee, Rhode Island (June 11, 1992, Congressional Record, 102nd Congress, 1991-1992)
Mr. speaker, we must take swift and strong action if we are to rescue the next generation from the rising of tide armed violence. That is why today I am introducing the Handgun Control Act of 1992. This legislation would outlaw the possession, importation, transfer or manufacture of a handgun except for use by public agencies, individuals who can demonstrate to their local police chief that they need a gun because of threat to their life or the life of a family member, licensed guard services, licensed pistol clubs which keep the weapons securely on premises, licensed manufacturers and licensed gun dealers.
--- Rep. Stephen J. Solarz, New York (August 12, 1992, Congressional Record, 102nd Congress, 1991-1992, Daily Edition E2492-2493.)
Twenty years ago, I asked Richard Nixon what he thought of gun control. His on-the-record reply: 'Guns are an abomination.' Free from fear of gun owners' retaliation at the polls, he favored making handguns illegal and requiring licenses for hunting rifles.
--- William Safire (originally from a New York Times column), Los Angeles Daily News, June 15, 1999, P. 15.
The only way to discourage the gun culture is to remove the guns from the hands and shoulders of people who are not in the law enforcement business.
--- New York Times, September 24, 1975
There is no reason for anyone in this country, for anyone except a police officer or a military person, to buy, to own, to have, to use, a handgun. The only way to control handgun use in this country is to prohibit the guns. And the only way to do that is to change the Constitution.
--- Michael Gartner, former NBC News President, USA Today, January 16, 1992
The goal is an ultimate ban on all guns, but we also have to take step at a time and go for limited access first.
--- Joyner Sims, Florida State Health Dept., Deputy Commissioner, Chicago Tribune, November 7, 1993
Gun violence won't be cured by one set of laws. It will require years of partial measures that will gradually tighten the requirements for gun ownership, and incrementally change expectations about the firepower that should be available to ordinary citizens.
--- New York Times, December 21, 1993
We are inclined to think that every firearm in the hands of anyone who is not a law enforcement officer constitutes an incitement to violence. Let's come to our senses before the whole country starts shooting itself up on all its Main Streets in a delirious kind of High Noon.
--- Washington Post, August 19, 1965
By a curiosity of evolution, every human skull harbors a prehistoric vestige: a reptilian brain. This atavism, like a hand grenade cushioned in the more civilized surrounding cortex, is the dark hive where many of mankind's primitive impulses originate. To go partners with that throwback, Americans have carried out of their own history another curiosity that evolution forgot to discard as the country changed from a sparsely populated, underpoliced agrarian society to a modern industrial civilization. That vestige is the gun -- most notoriously the handgun, an anachronistic tool still much in use.
--- Time, April 13, 1981
We are beyond the stage of restrictive licensing and uniform laws. We are at the point in time and terror when nothing short of a strong uniform policy of domestic disarmament will alleviate the danger which is crystal clear and perilously present. Let us take the guns away from the people. Exemptions should be limited to the military, the police and those licensed for good and sufficient reasons.
--- Patrick V. Murphy, New York City Police Commissioner, December 7, 1970
As you probably know by now, Time's editors, in the April 13 issue, took a strong position in support of an outright ban on handguns for private use.
--- Time Magazine, Letter to NRA, April 24, 1981
If it was up to me, no one but law enforcement officers would own hand guns...
--- Chicago Mayor Richard Daley Federal Gun Legislation Press Conference in Washington, D.C., November 13, 1998. (Cited 3/05/2000)
The League, therefore, supports a ban on the further manufacture, sale, transportation and importation for private ownership of handguns and their parts.
--- League of Women Voters of Illinois Gun Control Position-in-Brief (cited 3/05/2000). [The League of Illinois subsequently truncated their statement on the Web to the first paragraph of the just cited Web page: "The League supports legislative controls to stop the proliferation of private ownership of handguns and their irresponsible use. The League advocates restricting access to semi-automatic assault type weapons." (League of Women Voters of Illinois: 2001-2003 Positions in Brief (PDF) (cited 9/10/2002)]
No presidential candidate has yet come out for the most effective proposal to check the terror of gunfire: a ban on the general sale, manufacture and ownership of handguns as well as assault-style weapons.
--- Guns Along the Campaign Trail, Washington Post, Monday, July 19, 1999, Page A18.
Straight from the Mouth of a U.S. Government Attorney
The U.S. government argues in federal court (U.S. v. Emerson information page) that there is absolutely no right of an individual to own firearms!
Judge Garwood: "You are saying that the Second Amendment is consistent with a position that you can take guns away from the public? You can restrict ownership of rifles, pistols and shotguns from all people? Is that the position of the United States?"
Meteja (attorney for the government): "Yes"
Garwood: "Is it the position of the United States that persons who are not in the National Guard are afforded no protections under the Second Amendment?"
Meteja: "Exactly."
Meteja then said that even membership in the National Guard isn't enough to protect the private ownership of a firearm. It wouldn't protect the guns owned at the home of someone in the National Guard.
Garwood: "Membership in the National Guard isn't enough? What else is needed?"
Meteja: "The weapon in question must be used IN the National Guard."
(Excerpt of oral arguments in U.S. v. Emerson, 5th Circuit Court of Appeals, June 13, 2000)
Recognized Public Health Professionals and Sociologists
The United States should follow the example of every other industrialized country by placing substantial restrictions on the manufacture, sale, and possession of handguns. Semiautomatic weapons that have the capacity to fire dozens of bullets in a manner of seconds should be banned for sale to private citizens. Permits for the possession of handguns for sporting purposes should require that the guns be kept at a licensed firing range. Other than that, laws should limit handgun possession to police officers and licensed private security guards.
--- Webster, Daniel W., C. Patrick Chaulk, Stephen P. Teret, and Garen J. Wintemute, "Reducing Firearm Injuries," Issues in Science and Technology, Spring 1991, p.78.
"The last doubt as to the real intentions of at least certain influential members of the Commission, with regard to privately-owned firearms, was dispelled by our Research Director of the 'task force on gun control,' Mr. Zimring. While we were discussing the polls which ask people about their weapons, and the 'downard bias' so invariably encountered, we asked Mr. Zimring why people were so suspicious.
"He replied quite promptly, and with a frankness he will no doubt be made to regret: 'It's because we're coming to get their guns.'"
--- Huck, Susan L. M., "The Gun Grab: Watching The New Violence Commission," American Opinion, October 1968, p. 24.
More Zimring:
[T]he choice in handgun control is between two unpalatable alternatives. Gun Control in the twenty-first century will either be an expensive, unpopular, and untested attempt at bringing the U.S. handgun policy to the standard of the rest of the developed world, or it will consist of minor adjustments to current regulations that will all but guarantee persisting high rates of death. It is likely that this hard choice will amount to the definitive referendum on lethal violence in the United States.
--- Zimring, Franklin E., and Gordon Hawkings, Crime is Not the Problem: Lethal Violence in America, Oxford University Press, 1997, p.201.
More Quotes
The following quotes are excerpted from, "Under Fire: The New Consensus on the Second Amendment", by Randy E. Barnett and Don B. Kates (Originally published as 45 Emory L.J. 1139-1259, 1996).
Recommending that federal law limit ordinary citizens to "ownership [only] of sporting and hunting weapons,"
--- Taming the Gun Monster: How Far to Go, L.A. Times, Oct. 22 (editorial)
Under our plan individuals could own sporting weapons only if they had submitted to a background check and passed a firearms safety course. Other special, closely monitored exceptions could be made, such as for serious collectors.
--- Taming the Monster: The Guns Among Us, L.A. Times, Dec. 10, 1993 (editorial).
My own view on gun control is simple. I hate guns and I cannot imagine why anyone would want to own one. If I had my way, guns for sport would be registered, and all other guns, would be banned.
--- Deborah Prothrow-Stith, Dean of the Harvard School of Public Health
Mutual protection should be the aim of citizens, not individual self-protection. Until we are willing to outlaw, the very existence or manufacture of civilian handguns we have no right to call ourselves citizens or consider our behavior even minimally civil.
--- Garry Wills [historian/writer], John Lennon's war, Chi. Sun-times, Dec. 12, 1980.
Wills has also written "Every civilized society must disarm its citizens against each other. Those who do not trust their own people become predators upon their own people. The sick thing is that haters of fellow Americans often think of themselves as patriots."...
--- Or Worldwide Gun Control?,Phila. Inquirer, May 17, 1981.
The only reason for guns in civilian hands is for sporting purposes.
--- Sarah Brady, Jackson, Keeping the Battle Alive, Tampa Trib., Oct. 21, 1993 (interview with Sarah Brady).
Denouncing defensive gun ownership as "anarchy, not order under law--a jungle where each relies on himself for survival," and an insult to government, for "[a] state in which a citizen needs a gun to protect himself from crime has failed to perform its first purpose.
--- Ramsey Clark, former U.S. Attorney General, Crime in America 107 (1970)
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- Thread Starter
- #4
be happy
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The Second Amendment was part of the Constitution in 1794 when the Whiskey Rebellion broke out in western Pennsylvania.[102] As Saul Cornell has shown, even leading Antifederalists supported suppressing this threat to internal security.[103] With congressional support, President Washington moved quickly to exercise his constitutional authority to call out the militia to put down a domestic insurrection.[104] In the process, Washington became more convinced than ever that little or no reliance was to be placed on the militia.[105]
Washington issued a call for 13,000 militiamen from Penn-sylvania, Maryland, Virginia, and New Jersey.[106] Ironically, one of the prime demands of the Whiskey Rebels was a stronger standing army.[107] While Pennsylvania's Governor Thomas Mifflin successfully kept firearms out of the hands of the western militia, Washington opened the federal repositories to arm the troops he led into the field against the Whiskey Rebels.[108] The rebellion simply evaporated before Washington's show of force; the only deaths came from a [Page 76] pistol going off accidentally and a drunken brawl that ended with a fatal bayonet wound.[109] One can only speculate whether the Whiskey Rebels would have behaved differently had they known that Washington's troops were so ignorant of firearm use. Hardly a disciplined force, the militia looted, drank heavily, and beat civilians randomly.[110] It was neither well trained nor well armed. General Samuel Smith, commander of the Maryland militia, reported to the House of Representatives that the majority of the Virginia and Maryland troops was ignorant of the use of arms.[111] Many did not know how to load a musket.[112] Even young gentlemen like Meriwether Lewis reported for duty without a gun.[113] Secretary of War Henry Knox reported that only one-third of the militia called up to respond to the Whiskey Rebellion bore arms.[114] The rest had to be supplied from federal stockpiles.[115]
Such reports on the inadequacies of the militia in the Whiskey Rebellion led to renewed calls for a select militia and a stronger standing army. Lawrence Delbert Cress has written, "The militia had only reluctantly taken up arms, and then only after the infusion of a large number of substitutes and volunteers."[116] Even many of the administration's opponents, soon to be known as Democratic Republicans, now doubted the worth of the militia; and former Antifederalists joined in supporting the disarming of the Whiskey Rebels, despite the Second Amendment.[117] One of these men, William Findley, who had sympathized with the rebels, was appalled by the militia's conduct.[118] The first necessity of any republic had to be public order; if the militia could not handle it, Findley stated, then a standing army would.[119] Federalists and Republicans agreed that the task of the militia was to enforce social order; they also agreed [Page 77] that there was a great deal of room for improvement.[120]
Washington and Knox used the Whiskey Rebellion to keep the army fully supplied.[121] The army, however, had to content itself with weapons from the American Revolution cleaned and repaired at West Point, an inadequate situation in Washington's eyes.[122] Two problems therefore faced the American defensive establishment in the 1790s: the unorganized and untrained condition of the militia, and the impending shortage of usable firearms. The Federalists proposed two obvious solutions: a select militia, and federal support for a domestic firearms industry.[123]
Debates over the militia dominated the first federal Congress.[124] These carefully considered discussions even addressed the exact bore of the muskets to be used by the militia.[125] The representatives returned repeatedly to just how much authority the federal government should have in exercising its constitutional mandate of regulating the militia.[126] Several representatives noted that every increase in federal power came at the expense of the states while others doubted the value of the militia.[127] Thomas Fitzsimmons rejected the need for militia training as "a great tax on the community, productive of little instruction or edification, either in regard to military tactics, or the morals of a civilized nation."[128] Most members, however, agreed with Roger Sherman of Connecticut that "the different states had certainly an inherent right to arm and protect the lives and property of the citizens."[129] But to "more effectively . . . exercise this right . . . [the states needed] to give up to the general government the power of fixing what arms the militia should use, by what discipline they should be regulated,"[130] and [Page 78] various other forms of ordering the nature of the militia. The only power left to the states in this formulation was "the right to say what descriptions of persons should compose the militia, and to appoint the officers that were to command it."[131] Joshua Seney of Maryland thought even this latter qualification granted the states power that they could easily abuse.[132]
While Congress was quite willing to grant the president control over the militia, it did not support his pet plan for a select militia. Washington agreed completely with Baron De Steuben's dismissal of the "flattering but . . . mistaken ideathat every Citizen should be a Soldier."[133] The Revolution had made clear that "the use of arms is as [much] a trade as shoe or boot making."[134] Every year, Secretary of War Knox proposed to Congress that they create an active, highly trained (ten to thirty days per year), and well-armed reserve that could be called into service by a state or the federal government.[135] As in all of the militia proposals of the antebellum years, the federal government would supply guns to those serving in the select militia.[136] The "universal militia" would become nothing more than a way of registering all those eligible to carry arms in time of war.[137]
Knox's proposal was logical, legal, and necessary, and would have aided the nation enormously in a range of future crises. Congress, however, would have nothing to do with it. The people's representatives may have shared the view of former Antifederalist John Smilie of Pennsylvania, who warned that "[w]hen a select militia is formed; the people in general may be disarmed."[138] But Smilie, like most Antifederalists, had no problem granting the state the authority to decide who should be allowed to serve in the militia, or to limit [Page 79] those ineligible from owning guns.[139] Nor did most Antifederalists want to see the propertyless carrying arms in or out of the militia.[140]
The debate over the future of the militia demonstrated an ideological fissure in America. Federalists looked to Europe and saw that warfare was changing fast, with massive armies and well-trained corps of light infantry sweeping away the last remnants of medieval warfare. Harrison Gray Otis insisted that at least a few men must be trained in modern methods of warfare, if only to advise the militia when war came.[141] To prevent disaster, the country needed a larger army staffed by professional soldiers and a centralized select militia subject to extended training. Federalist support for volunteer militia companies appeared to republicans an obvious assault on the ideal of a universal militia.[142] The fact that the universal militia had never existed and that the current militia showed no signs of life remained irrelevant to this ideological absolute.[143]
A curious side effect of these heated debates over the militia was a brief militia revivala resurgence born of political fears. In 1798 and 1799, faced with the threat of war with France, Federalists called for a stronger army and more centralized militia. Wild rumors circulated widely, including that Republicans were hoarding arms and that Hamilton was going to lead the army against domestic opponents.[144] Federalist John Nicholas published a letter accusing the Virginia legislature of storing arms in the capitol for use in a rebellion against the federal government.[145] He found evidence in the legislature's recent reorganization of the militia and its appropriation of funds to buy arms for the militia and to build an armory in Richmond.[146] Federalists in Richmond and Petersburg responded by organizing the first private militia companies.[147] Shortly thereafter, [Page 80] republicans in Philadelphia organized their first private militia company, the Republican Blues, "in order to defend the country against foreign and domestic enemies and [to] support the laws."[148] Pressured by the states, Congress passed a new militia act, but Maryland's Governor Stone refused to cooperate until the federal government reimbursed the state for the arms it lost during the Whiskey Rebellion.[149] Along with the threat, Stone sent a request for new arms for the militia, reporting that the state was dangerously under-equipped.[150] The next governor repeated these entreaties and was also ignored.[151]
The private, volunteer companies were generally better armed and far more enthusiastic than their state-sponsored counterparts. For instance, the Washington artillery of Washington, D.C., which started during this crisis, maintained its exclusivity by requiring the election of new members.[152] Recruits were expected to supply their complete uniform as a sign of seriousness, but guns came from the company's private supply, which was sufficient for the entire troop.[153] A new member of the company did not have to own a gun, but he did need a tailor. In comparison, during the war scare of 1798, the nearby Alexandria militia regiment frantically turned to the Virginia government for additional muskets.[154] The governor offered 250 muskets, noting that requests for arms were coming in from militia companies all over Virginia.[155] The Fairfax County militia was in slightly better shape, needing only 250 guns to finish arming their 563 militiamen.[156] The regular militia seemed a lost cause to many. In 1800, Secretary of War James McHenry wrote the chair of the House Committee on Defense that "even in times of the greatest danger, we cannot give to our militia that degree of discipline . . . upon which a nation may safely hazard its fate."[157] [Page 81]
In the midst of these military preparations, the Fries Rebellion temporarily disrupted southeast Pennsylvania.[158] Outraged by the new direct federal tax on houses, lands, and slaves, as well as by the Alien and Sedition Acts, groups of citizens defied federal authority.[159] In the first months of 1799, the rebelsmost members of the militia threatened tax assessors, forcing one to "dance around" a liberty pole, while another was "committed to an old stable and . . . fed rotten corn."[160] But the insurgents' greatest crime came when John Fries, a local militia commander, led men armed with swords, clubs, and muskets to free some prisoners.[161] No shots were fired in this traditional effort to protest corrupt authority in what Fries's attorney Alexander Dallas called a "system of intimidation."[162] To President John Adams, this system was treasonous, and he ordered five hundred federal troops under General William MacPherson to put down the uprising.[163] There was no resistance and no violence as this little army disarmed the rebels and rounded up their leaders.[164] Fries and two others were arrested, tried, convicted, and pardoned, and that was the end of it.[165] As with the Whiskey Rebellion, the insurgents found little support once the government acted. Even ardent Jeffersonians, while objecting to the use of federal troops instead of the state militia, agreed that anyone challenging federal authority should be brought to justice.[166] There was no reference to the Second Amendment when Fries's supporters were disarmed by the state.
Following on the heels of the war scare and "rebellion" in Pennsylvania came the closely contested national election of 1800.[167] It briefly looked as though the "Revolution of 1800" would be just that. But the poorly prepared state of the participants suggests that it would have been a relatively bloodless affair.[168] As rumors spread that the Federalists might prevent Thomas Jefferson from taking [Page 82] office in 1801, republican John Beckley of Pennsylvania charged that Federalists had removed "several hundred stand of arms and 18 pieces of cannon, heretofore in the hands of the Militia, . . . into the public arsenals of the U.S."[169] Fearing a showdown, Governor Monroe of Virginia planned for the Virginia militia to block any effort by federal troops to remove the federal arms stored in Virginia by seizing them for state use.[170] Monroe even sent a spy to check the quality of these arms.[171] Major T.M. Randolph reported that these "4000 excellent muskets and bayonets" had been captured from the British at Yorktown.[172] Governor Thomas McKean of Pennsylvania was even more emphatic in his preparations, informing Jefferson that "arms for upwards to twenty thousand were secured" by his government for the militia in case their service was required.[173] He did not expect them to bring their own arms, but planned to supply the militia with state and federal arms.[174] But as the crisis passed with the temporary resolution of the conflict with France and the peaceful inauguration of Thomas Jefferson, military enthusiasm waned, and militia companies throughout the country died a peaceful death.[175]
Washington issued a call for 13,000 militiamen from Penn-sylvania, Maryland, Virginia, and New Jersey.[106] Ironically, one of the prime demands of the Whiskey Rebels was a stronger standing army.[107] While Pennsylvania's Governor Thomas Mifflin successfully kept firearms out of the hands of the western militia, Washington opened the federal repositories to arm the troops he led into the field against the Whiskey Rebels.[108] The rebellion simply evaporated before Washington's show of force; the only deaths came from a [Page 76] pistol going off accidentally and a drunken brawl that ended with a fatal bayonet wound.[109] One can only speculate whether the Whiskey Rebels would have behaved differently had they known that Washington's troops were so ignorant of firearm use. Hardly a disciplined force, the militia looted, drank heavily, and beat civilians randomly.[110] It was neither well trained nor well armed. General Samuel Smith, commander of the Maryland militia, reported to the House of Representatives that the majority of the Virginia and Maryland troops was ignorant of the use of arms.[111] Many did not know how to load a musket.[112] Even young gentlemen like Meriwether Lewis reported for duty without a gun.[113] Secretary of War Henry Knox reported that only one-third of the militia called up to respond to the Whiskey Rebellion bore arms.[114] The rest had to be supplied from federal stockpiles.[115]
Such reports on the inadequacies of the militia in the Whiskey Rebellion led to renewed calls for a select militia and a stronger standing army. Lawrence Delbert Cress has written, "The militia had only reluctantly taken up arms, and then only after the infusion of a large number of substitutes and volunteers."[116] Even many of the administration's opponents, soon to be known as Democratic Republicans, now doubted the worth of the militia; and former Antifederalists joined in supporting the disarming of the Whiskey Rebels, despite the Second Amendment.[117] One of these men, William Findley, who had sympathized with the rebels, was appalled by the militia's conduct.[118] The first necessity of any republic had to be public order; if the militia could not handle it, Findley stated, then a standing army would.[119] Federalists and Republicans agreed that the task of the militia was to enforce social order; they also agreed [Page 77] that there was a great deal of room for improvement.[120]
Washington and Knox used the Whiskey Rebellion to keep the army fully supplied.[121] The army, however, had to content itself with weapons from the American Revolution cleaned and repaired at West Point, an inadequate situation in Washington's eyes.[122] Two problems therefore faced the American defensive establishment in the 1790s: the unorganized and untrained condition of the militia, and the impending shortage of usable firearms. The Federalists proposed two obvious solutions: a select militia, and federal support for a domestic firearms industry.[123]
Debates over the militia dominated the first federal Congress.[124] These carefully considered discussions even addressed the exact bore of the muskets to be used by the militia.[125] The representatives returned repeatedly to just how much authority the federal government should have in exercising its constitutional mandate of regulating the militia.[126] Several representatives noted that every increase in federal power came at the expense of the states while others doubted the value of the militia.[127] Thomas Fitzsimmons rejected the need for militia training as "a great tax on the community, productive of little instruction or edification, either in regard to military tactics, or the morals of a civilized nation."[128] Most members, however, agreed with Roger Sherman of Connecticut that "the different states had certainly an inherent right to arm and protect the lives and property of the citizens."[129] But to "more effectively . . . exercise this right . . . [the states needed] to give up to the general government the power of fixing what arms the militia should use, by what discipline they should be regulated,"[130] and [Page 78] various other forms of ordering the nature of the militia. The only power left to the states in this formulation was "the right to say what descriptions of persons should compose the militia, and to appoint the officers that were to command it."[131] Joshua Seney of Maryland thought even this latter qualification granted the states power that they could easily abuse.[132]
While Congress was quite willing to grant the president control over the militia, it did not support his pet plan for a select militia. Washington agreed completely with Baron De Steuben's dismissal of the "flattering but . . . mistaken ideathat every Citizen should be a Soldier."[133] The Revolution had made clear that "the use of arms is as [much] a trade as shoe or boot making."[134] Every year, Secretary of War Knox proposed to Congress that they create an active, highly trained (ten to thirty days per year), and well-armed reserve that could be called into service by a state or the federal government.[135] As in all of the militia proposals of the antebellum years, the federal government would supply guns to those serving in the select militia.[136] The "universal militia" would become nothing more than a way of registering all those eligible to carry arms in time of war.[137]
Knox's proposal was logical, legal, and necessary, and would have aided the nation enormously in a range of future crises. Congress, however, would have nothing to do with it. The people's representatives may have shared the view of former Antifederalist John Smilie of Pennsylvania, who warned that "[w]hen a select militia is formed; the people in general may be disarmed."[138] But Smilie, like most Antifederalists, had no problem granting the state the authority to decide who should be allowed to serve in the militia, or to limit [Page 79] those ineligible from owning guns.[139] Nor did most Antifederalists want to see the propertyless carrying arms in or out of the militia.[140]
The debate over the future of the militia demonstrated an ideological fissure in America. Federalists looked to Europe and saw that warfare was changing fast, with massive armies and well-trained corps of light infantry sweeping away the last remnants of medieval warfare. Harrison Gray Otis insisted that at least a few men must be trained in modern methods of warfare, if only to advise the militia when war came.[141] To prevent disaster, the country needed a larger army staffed by professional soldiers and a centralized select militia subject to extended training. Federalist support for volunteer militia companies appeared to republicans an obvious assault on the ideal of a universal militia.[142] The fact that the universal militia had never existed and that the current militia showed no signs of life remained irrelevant to this ideological absolute.[143]
A curious side effect of these heated debates over the militia was a brief militia revivala resurgence born of political fears. In 1798 and 1799, faced with the threat of war with France, Federalists called for a stronger army and more centralized militia. Wild rumors circulated widely, including that Republicans were hoarding arms and that Hamilton was going to lead the army against domestic opponents.[144] Federalist John Nicholas published a letter accusing the Virginia legislature of storing arms in the capitol for use in a rebellion against the federal government.[145] He found evidence in the legislature's recent reorganization of the militia and its appropriation of funds to buy arms for the militia and to build an armory in Richmond.[146] Federalists in Richmond and Petersburg responded by organizing the first private militia companies.[147] Shortly thereafter, [Page 80] republicans in Philadelphia organized their first private militia company, the Republican Blues, "in order to defend the country against foreign and domestic enemies and [to] support the laws."[148] Pressured by the states, Congress passed a new militia act, but Maryland's Governor Stone refused to cooperate until the federal government reimbursed the state for the arms it lost during the Whiskey Rebellion.[149] Along with the threat, Stone sent a request for new arms for the militia, reporting that the state was dangerously under-equipped.[150] The next governor repeated these entreaties and was also ignored.[151]
The private, volunteer companies were generally better armed and far more enthusiastic than their state-sponsored counterparts. For instance, the Washington artillery of Washington, D.C., which started during this crisis, maintained its exclusivity by requiring the election of new members.[152] Recruits were expected to supply their complete uniform as a sign of seriousness, but guns came from the company's private supply, which was sufficient for the entire troop.[153] A new member of the company did not have to own a gun, but he did need a tailor. In comparison, during the war scare of 1798, the nearby Alexandria militia regiment frantically turned to the Virginia government for additional muskets.[154] The governor offered 250 muskets, noting that requests for arms were coming in from militia companies all over Virginia.[155] The Fairfax County militia was in slightly better shape, needing only 250 guns to finish arming their 563 militiamen.[156] The regular militia seemed a lost cause to many. In 1800, Secretary of War James McHenry wrote the chair of the House Committee on Defense that "even in times of the greatest danger, we cannot give to our militia that degree of discipline . . . upon which a nation may safely hazard its fate."[157] [Page 81]
In the midst of these military preparations, the Fries Rebellion temporarily disrupted southeast Pennsylvania.[158] Outraged by the new direct federal tax on houses, lands, and slaves, as well as by the Alien and Sedition Acts, groups of citizens defied federal authority.[159] In the first months of 1799, the rebelsmost members of the militia threatened tax assessors, forcing one to "dance around" a liberty pole, while another was "committed to an old stable and . . . fed rotten corn."[160] But the insurgents' greatest crime came when John Fries, a local militia commander, led men armed with swords, clubs, and muskets to free some prisoners.[161] No shots were fired in this traditional effort to protest corrupt authority in what Fries's attorney Alexander Dallas called a "system of intimidation."[162] To President John Adams, this system was treasonous, and he ordered five hundred federal troops under General William MacPherson to put down the uprising.[163] There was no resistance and no violence as this little army disarmed the rebels and rounded up their leaders.[164] Fries and two others were arrested, tried, convicted, and pardoned, and that was the end of it.[165] As with the Whiskey Rebellion, the insurgents found little support once the government acted. Even ardent Jeffersonians, while objecting to the use of federal troops instead of the state militia, agreed that anyone challenging federal authority should be brought to justice.[166] There was no reference to the Second Amendment when Fries's supporters were disarmed by the state.
Following on the heels of the war scare and "rebellion" in Pennsylvania came the closely contested national election of 1800.[167] It briefly looked as though the "Revolution of 1800" would be just that. But the poorly prepared state of the participants suggests that it would have been a relatively bloodless affair.[168] As rumors spread that the Federalists might prevent Thomas Jefferson from taking [Page 82] office in 1801, republican John Beckley of Pennsylvania charged that Federalists had removed "several hundred stand of arms and 18 pieces of cannon, heretofore in the hands of the Militia, . . . into the public arsenals of the U.S."[169] Fearing a showdown, Governor Monroe of Virginia planned for the Virginia militia to block any effort by federal troops to remove the federal arms stored in Virginia by seizing them for state use.[170] Monroe even sent a spy to check the quality of these arms.[171] Major T.M. Randolph reported that these "4000 excellent muskets and bayonets" had been captured from the British at Yorktown.[172] Governor Thomas McKean of Pennsylvania was even more emphatic in his preparations, informing Jefferson that "arms for upwards to twenty thousand were secured" by his government for the militia in case their service was required.[173] He did not expect them to bring their own arms, but planned to supply the militia with state and federal arms.[174] But as the crisis passed with the temporary resolution of the conflict with France and the peaceful inauguration of Thomas Jefferson, military enthusiasm waned, and militia companies throughout the country died a peaceful death.[175]
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The only evidence necessary to refute the idea that the 2nd Amendment is a 'collective right' is that none of the other original ten amendments were 'collective' in nature either, with the 10th being both a state and individual right.
Keith
Keith
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They can still ban guns & mags state by state, city by city, like they did in the NYC and Colorado (Illinois and California need not be mentioned).
I would love NRA to lobby for a federal bill that would render all those local restrictions void. A ban on bans.
I would love NRA to lobby for a federal bill that would render all those local restrictions void. A ban on bans.
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Or the Congress can pass the "National Firearms Act of 2013" so the ATF requires a $1000 tax stamp for every firearm and a $1 tax stamp for every round of ammo. These aren't laws at all; they're "administrative rules." That's how they get around the Constitution, for example with respect to the unratified and therefore illegal Federal income tax. Tax court is a hideous, terrifying, blatantly unconstitutional kangaroo court where you have no rights and no hope of defending yourself against incarceration and confiscation.
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What he said
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I disagree. If you support the 2nd Amendment, you must support the 16th too:
"The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."
By 1913 it was ratified by the required 3/4 of all States.
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GUNS AND SLAVERY
No contemporary can be found to argue that the Second Amendment hindered the states' authority to regulate firearms. Nor were similar passages in state constitutions perceived as blocking such legislation. As Carl Bogus has reminded us, slavery played a key role in the South's understanding of the Second Amendment.[264] The Southern militia's primary purpose was the preservation of white supremacy. The slave patrols, whose members were drawn from the militia rosters, handled routine policing.[265] But slave insurrections pushed the militia to its limits, demonstrating that not even the fear of slave uprisings sufficed to motivate the majority of whites to own guns and practice their use.[266]
The first great test of the Southern militia under the Constitution came in Virginia in 1800.[267] In that first year of the new century, an African American named Gabriel rattled the South to its core with a vivid anticipation of the danger posed to the whites.[268] Gabriel's Rebellion also revealed a core paradox in the question of arms in the South: the need of the state to hold guns that would be easily accessible to the militia, but not to the slaves.[269] These stored arms became the most tempting target for any revolutionary force. Thus, [Page 94] Gabriel's first goal was to capture the militia arms stored in the capital, for his forces would be armed only with swords, knives, pikes, and what few muskets he could seize from the white planters.[270]
As soon as Governor James Monroe heard the rumors of the planned uprising, he ordered all the "publick arms"[271] moved from the capital to the penitentiary under a guard of thirteen armed militiamena surprisingly small force, but all that was available at the time.[272] The problem then became how to issue some of these arms to the militia units called up by Monroe.[273] A general panic spread through much of Virginia at the start of Gabriel's uprising, and whites demanded immediate militia protection.[274] The Suffolk militia, short of guns, appealed to the governor for aid.[275] Monroe promised to supply arms, but then discovered that the state had insufficient guns even for the 500 militiamen so far ordered into action.[276] The militia officers appealed repeatedly for aid, without success, finally arming their troops with whatever they could lay their hands on, primarily bladed weapons.[277]
Most observers felt that only heavy rains and the early discovery of the uprising prevented a successful slave rebellion. As James Callender wrote Thomas Jefferson, the insurrection "could hardly have failed of success, ... for after all, we could only muster four or five hundred men of whom no more than thirty had Muskets."[278] Norfolk mayor Thomas Newton was delighted to hear that the militia had been called out, but complained that "they have not arms, and are on that account only equal to the slaves except in numbers."[279] Mayor Newton insisted that it was the state's job to see that the militia was properly armed.[280]
During the slave insurrection scare of 1802, Monroe reserved most of the state's arms for the Nineteenth Regiment of Richmond, charged with protecting the capital.[281] That unit was fully armed with [Page 95] "four hundred and twelve stands of public Arms."[282] Monroe felt that he had learned his lesson from Gabriel's Rebellion, and that with the vast majority of his citizens "unarmed . . . they may become a prey to a very small force."[283] He therefore sought to ensure that the slave patrols were better armed and far more intrusive.[284] The terror aroused in the white breast by Gabriel's Rebellion saw an increase in interest in the militia across the South.[285]
The Southern governments responded to their fear of slave insurrection by shifting more funds to arming their militia and by insuring that there was no individual right to bear arms.[286] It seems almost too obvious to point out that the Second Amendment did nothing to prevent the various states from disarming those perceived as dangerous to public safety and passing laws forbidding the possession of guns by these people. Thus every Southern state not only forbade slaves from carrying firearms, but also outlawed the ownership of guns by free blacks.[287] The only challenge to this legislation came in 1844. The North Carolina Supreme Court ruled unanimously that laws restricting the use of firearms by free blacks did not violate the Second Amendment.[288]
No contemporary can be found to argue that the Second Amendment hindered the states' authority to regulate firearms. Nor were similar passages in state constitutions perceived as blocking such legislation. As Carl Bogus has reminded us, slavery played a key role in the South's understanding of the Second Amendment.[264] The Southern militia's primary purpose was the preservation of white supremacy. The slave patrols, whose members were drawn from the militia rosters, handled routine policing.[265] But slave insurrections pushed the militia to its limits, demonstrating that not even the fear of slave uprisings sufficed to motivate the majority of whites to own guns and practice their use.[266]
The first great test of the Southern militia under the Constitution came in Virginia in 1800.[267] In that first year of the new century, an African American named Gabriel rattled the South to its core with a vivid anticipation of the danger posed to the whites.[268] Gabriel's Rebellion also revealed a core paradox in the question of arms in the South: the need of the state to hold guns that would be easily accessible to the militia, but not to the slaves.[269] These stored arms became the most tempting target for any revolutionary force. Thus, [Page 94] Gabriel's first goal was to capture the militia arms stored in the capital, for his forces would be armed only with swords, knives, pikes, and what few muskets he could seize from the white planters.[270]
As soon as Governor James Monroe heard the rumors of the planned uprising, he ordered all the "publick arms"[271] moved from the capital to the penitentiary under a guard of thirteen armed militiamena surprisingly small force, but all that was available at the time.[272] The problem then became how to issue some of these arms to the militia units called up by Monroe.[273] A general panic spread through much of Virginia at the start of Gabriel's uprising, and whites demanded immediate militia protection.[274] The Suffolk militia, short of guns, appealed to the governor for aid.[275] Monroe promised to supply arms, but then discovered that the state had insufficient guns even for the 500 militiamen so far ordered into action.[276] The militia officers appealed repeatedly for aid, without success, finally arming their troops with whatever they could lay their hands on, primarily bladed weapons.[277]
Most observers felt that only heavy rains and the early discovery of the uprising prevented a successful slave rebellion. As James Callender wrote Thomas Jefferson, the insurrection "could hardly have failed of success, ... for after all, we could only muster four or five hundred men of whom no more than thirty had Muskets."[278] Norfolk mayor Thomas Newton was delighted to hear that the militia had been called out, but complained that "they have not arms, and are on that account only equal to the slaves except in numbers."[279] Mayor Newton insisted that it was the state's job to see that the militia was properly armed.[280]
During the slave insurrection scare of 1802, Monroe reserved most of the state's arms for the Nineteenth Regiment of Richmond, charged with protecting the capital.[281] That unit was fully armed with [Page 95] "four hundred and twelve stands of public Arms."[282] Monroe felt that he had learned his lesson from Gabriel's Rebellion, and that with the vast majority of his citizens "unarmed . . . they may become a prey to a very small force."[283] He therefore sought to ensure that the slave patrols were better armed and far more intrusive.[284] The terror aroused in the white breast by Gabriel's Rebellion saw an increase in interest in the militia across the South.[285]
The Southern governments responded to their fear of slave insurrection by shifting more funds to arming their militia and by insuring that there was no individual right to bear arms.[286] It seems almost too obvious to point out that the Second Amendment did nothing to prevent the various states from disarming those perceived as dangerous to public safety and passing laws forbidding the possession of guns by these people. Thus every Southern state not only forbade slaves from carrying firearms, but also outlawed the ownership of guns by free blacks.[287] The only challenge to this legislation came in 1844. The North Carolina Supreme Court ruled unanimously that laws restricting the use of firearms by free blacks did not violate the Second Amendment.[288]
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