New School of Thought and Research on the Second Amendment

[Diamond Cross]

Originally Posted by Thorgrim

diamond you're just cutting and pasting arguments...which, distateful as it is, doens't confront any point I made..and in fact what you cut and paste has to do with "collective rigths" theorists, which my OP was not

If you're going to respond to the OP, you have to actually respond to points it makes and tell why they are false or faulty

They do respond, and secondly you cutted and pasted too but you didn't give credit where credit is due. At least I didn't plagarize like you did. Talk about distasteful.

[JaJae]

Originally Posted by Diamond Cross

They do respond, and secondly you cutted and pasted too but you didn't give credit where credit is due. At least I didn't plagarize like you did. Talk about distasteful.

Can you prove he plagarized? If not, please don't accuse him of it. Much of his arguments come from a book, but it's not unlikely he paraphrased and came up with his own conclusions. If you look at his election threads, he does a very good job of making professional sounding threads.

[Diamond Cross]

Ah, never mind. just woke up in a bad mood today. Soemday I'll leaqrn not to come to these kinds of forums in such a bad mood.

[Thorgrim]

Originally Posted by JaJae

Thorgrim, there's a book that has essentially the same argument you're outlining here, but I can't think of the title. Have you read it? Could you tell me the title/author? I'd be interested in reading it. Thanks.

Amazon.com: A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America: Books: Saul Cornell
Dr. Cornell at OSU
Oxford University Press

[Thorgrim]

Originally Posted by JaJae

Can you prove he plagarized? If not, please don't accuse him of it. Much of his arguments come from a book, but it's not unlikely he paraphrased and came up with his own conclusions. If you look at his election threads, he does a very good job of making professional sounding threads.

Dr Cornell wrote an article several years before his book, and also published another book called "whose right does the 2nd amendment protect?"

I was doing side-research with some spare time, when his book came out it confirmed much of what I thought, and it was vetted by OUP

His final conclusion is scholarly, mine is political...we both share a lot of the same evidence because...quite frankly he went over every piece of information out there

[JaJae]

Originally Posted by Thorgrim

Amazon.com: A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America: Books: Saul Cornell
Dr. Cornell at OSU
Oxford University Press

Thanks

[nbiggershaft]

Grammatically it protects the right to own a weapon. If this is no longer applicable in your mind, start a national referendum to amend the constitution.

[lew]

Originally Posted by Thorgrim

The amendment was passed by Federalists, who wanted a stronger government, and the right to revolt was crushed by Washington himself during the Whiskey Rebellion, except in very extreme cases

Basically, as long as you have a right to the courts (even though the judges at the time were undoubtable bias towards farmers) and a right to vote (which meant little to the small community of farmers who were outmatched by others) the founding fathers overwhelming believed you had no right to revolt

I don't understand your point here. The Amendment was also passed by Anti-Federalists, who of course wanted a smaller, weaker government.

And Washington was not an Anti-Federalist. While Washington was not a Federalist like Adams, he still leaned more towards the Federalists than the Anti-Federalists. But the actions of Washington don't necessarily mean anything in regards to the Anti-Federalists' belief that the populace should overthrow the government when it becomes too tyrannical.

Washington's actions during the Whiskey Rebellion don't seem to do much with the 2nd Amendment at all.

[Thorgrim]

Originally Posted by lew

I don't understand your point here. The Amendment was also passed by Anti-Federalists, who of course wanted a smaller, weaker government.

And Washington was not an Anti-Federalist. While Washington was not a Federalist like Adams, he still leaned more towards the Federalists than the Anti-Federalists. But the actions of Washington don't necessarily mean anything in regards to the Anti-Federalists' belief that the populace should overthrow the government when it becomes too tyrannical.

Washington's actions during the Whiskey Rebellion don't seem to do much with the 2nd Amendment at all.

Ofcourse they do, all the founding fathers witnessed or were active in the Whiskey Rebellion...those who say "the founding fathers believed you had a right to resist with arms, blah blah"

and saying "anti-federalists passed it too" is like saying "Republicans passed the New Deal too!" because some voted for it

the first congress was overwhelmingly federalist

[Thorgrim]

Originally Posted by nbiggershaft

Grammatically it protects the right to own a weapon. If this is no longer applicable in your mind, start a national referendum to amend the constitution.

that "argument" is dealt with in the OP

[lew]

Originally Posted by Thorgrim

Ofcourse they do, all the founding fathers witnessed or were active in the Whiskey Rebellion...those who say "the founding fathers believed you had a right to resist with arms, blah blah"

and saying "anti-federalists passed it too" is like saying "Republicans passed the New Deal too!" because some voted for it

the first congress was overwhelmingly federalist

But the Amendments were pushed through by Anti-Federalists, not Federalists. The Bill of Rights is very much Anti-Federalist legislation.

[Thorgrim]

Originally Posted by lew

But the Amendments were pushed through by Anti-Federalists, not Federalists. The Bill of Rights is very much Anti-Federalist legislation.

"pushed through"

Yeah, and the Democrats pushed for more money in Medicare, what kind of bill got pushed through, a Republican Medicare bill or a Democratic Medicare bill

The Federalist, wrote, edited and approved the amendments, they are Federalist

It's exactly why the 10th amendment is almost meaningless, the Federalists edited it before they passed it and it shows

the word ''expressly'' was before the word ''delegated.''

Here I'll show you both versions:

The powers not expressly delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

(underlining mine)

The first one was struck down by the federalist because THEY DIDN'T BELIEVE THAT POWERS NOT EXPRESSLY DELEGATED SHOULD BE RESERVED TO THE STATES OR PEOPLE

The amendment was a anti-federalist idea, but, like all amendments, was formed into a federalist amendment

That is why every court, even extremely conservative courts, have continually said the 10th amendment is not what libertarians think it means, because of OBVIOUS legislative intent

The second amendment was a federalist amendment crafted to deal with worries that Congress would cripple the funding of state militias or force quakers to serve in a national army...and other things people today NEVER discuss

Why? The NRA gains nothing by finding the true intent of the 2nd amendment, most people already believe their propaganda version 100%, and gun control advocates have more important fights to pick than constitutional ones and have scant money to do it with

[Thorgrim]

bump again

[nbiggershaft]

Originally Posted by Thorgrim

that "argument" is dealt with in the OP

fine, I guess we will argue this again from long ago

In the OP you linked this

"Myth: English rules clearly show that the 2nd clause of the second amendment is superior to the first, thus, the militia clause can be taken lightly, maybe even as totally irrelevant
Fact: Both the original draft and 18th century legal principles show a different story

Madison's first draft:
The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person
“Proposal by Madison,” Neil Cogan, The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, 169


Well-regulated militia gets its own section, and the first line deals with "Keep and bear arms" So, in its initial conception, militias had their own unique section that make it clear Madison did not intend for militias to be an almost irrelevant clause."


So in the first draft, the right of people to keep and bear arms shall not be infringed according to the author, was a unique section. (obviously explicitly protecting this right). And then it ended up with the same terminology in the final draft but without part about no person being compelled to serve in the military. This to you says that the remodel removed from the first draft the right of people to bear arms?

[Thorgrim]

The first draft was thought to be flawed, so they switched the wordings so that the preamble gave the clear meaning for what purpose people were being given a right to bear arms

it's a double take down...first because it shows that "using modern english rules" wouldn't have worked in the first draft as an argument, considering militias were written so highly they have their own section and ofcourse its second

second because it shows that they reworded it, to use legal terminology that was being used at the time, again the preamble is the key that unlocks the meaning of the law, in the late 18th century

you are misreading what I am saying though

It does not "take away the right to bear arms" the concept you believe in the 21st century did not exist in publics mind when the amendments were being written

Kind of like explaining to southern or western france in the 12th century about nationalism, that you are all frenchman, or the same to germans in the holy roman empire

They'd all go "yeah...we're all frenchman (or germans)...so what? Who cares, that doesn't mean anything, what matters is that I support the Lord of Bavaria/etc and he is a great man"

The concept of nationalism was completely alien to their minds

Same thing if you took an NRA text to the first congress when they were debating the 2nd amendment, they'd all look at you like you were crazy

"We're trying to protect Virginia against foreign invaders, and this even helps stop a national army...what are you talking about with an individual having some right to be a gun maniac? Sounds like a lord who wants to build a castle with cannons or even just muskets ready to stir up trouble...that would challenge the authority of Virginia, and Virginia will not stand for anyone challenging its authority!"

*sigh*

You really have to read my entire argument, get down the whole theme, and then challenge a point...don't just assume its anti-gun because it doesn't tow the NRA line

[MKULTRA]

Originally Posted by Diamond Cross

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 the 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 mi