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The Gun Lobby's interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American People by special interest groups that I have ever seen in my lifetime.  The real purpose of the Second Amendment was to ensure that state armies - the militia - would be maintained for the defense of the state.  The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.
Retired Chief Justice Warren Burger, "The Right to Bear Arms," Parade Magazine, January 14, 1990.

In 2008, this fraud was furthered by Mr. Scalia, joined by his fellow ideologues Thomas, Alito, Roberts and Kennedy.  Yet five zealots in black robes cannot change the historical record. Writing something down on paper or pushing the send button to the internet doesn't make it so. Scalia and gang, in ganging together to pen District of Columbia v. Heller, cannot change history, anymore than a Truther diary about how the 9-11 hijackers were Republican ideologues giving their lives for Bush and Cheney, makes such idiocy so.

In its 2002 decision Silveira v. Lockyer, the Ninth Circuit Court of Appeals provided a very detailed, extensive, and well researched examination of the historical record surrounding the adoption of the Second Amendment.  Although Silveira v. Lockyer would overturned by Messrs. Scalia, Thomas, Roberts, Alito and Kennedy in 2008, the 9th Circuit's outstanding research surpasses both Scalia's NRA talking points that passes for a Supreme Court decision, as well as Justice Stevens' far more persuasive dissent.  This diary provides a summary of the Ninth Circuit's research that led to that court's conclusion that the Second Amendment was intended to protect the right of the states to form militias, and was not intended to allow anyone and everyone without restriction to buy whatever guns may be on the market.  I hope, in a future diary, to analyze Scalia's Heller opinion and illustrate why Scalia is wrong and a hypocrite to claim that he is governed by original intent.

The Second Amendment states:  

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
What did "militia" mean to the framers?  Article 6 of the Articles of Confederation had required that:
every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.
And the original Constitution, written just two years before the enactment of the Second Amendment (the Bill of Rights was passed by Congress in 1789, but not ratified until 1791) also provided for a "militia":  
The Congress shall have the power . . .
To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

The President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.

Article I, sec. 8, clauses 15 and 16, and Article II, sec. 2, clause 1.  Article 6 of the Articles of Confederation, and these three clauses of the Constitution, refer to state militias.  The Constitution provides that the Congress may call the state militias into the service of the United States for the stated reasons, and when called into federal service the President becomes their Commander in Chief.  The Constitution also provides for the federal government to organize, arm and discipline the state militias, with the states reserving the right to appoint officers and retaining responsibility for training according to federal standards.  As will be seen in a few paragraphs below, it was this 16th clause of Article 1, section 8 that would between 1787 and 1789 create controversy, threaten the Constitution's ratification, and lead to the adoption of the Second Amendment.

As an aside, and further bolstering the understanding of the time that "militia" meant a well-regulated state army, the first half of the Fifth Amendment, enacted simultaneously with the Second Amendment, provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger . . .
Again, the exemption of militia members called into federal service in time of war or public danger obviously applies to a state militia, a "well regulated" state militia, and not to a mob with guns.

Turning to the latter clause of the Second Amendment, "the right of the people to keep and bear Arms shall not be infringed," the language enuciates a right "to keep and bear arms," not to "possess and own arms."  Nineteenth Century state courts construed "bear arms" as having a purely military function.  From the Tennessee Supreme Court:

A man in pursuit of deer, elk and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms.
Aymette v. State, 21 Tenn. 154 (1840).  From the Texas Supreme Court:
The word 'arms' in the connection we find it in the Constitution of the United States refers to the arms of a militiaman or soldier, and the word is used in its military sense.
English v. State, 35 Tex. 473 (1872).  And from the West Virginia supeme court:  
In regard to the kind of arms referred to in the [Second] Amendment, it must be held to refer to the weapons of warfare to be used by the militia.
State v. Workman, 35 W. Va. 367 (1891).

Turning to the historical context of the Second Amendment's adoption and to the debates preceding its adoption, as SCOTUS observed back in 1939 in United States v. Miller (a unanimous decision authored by the ultra-conservative James Clark McReynolds), when the Second Amendment was adopted:  

The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia.
Or, as Alexander Hamilton observed in Federalist Paper no. 29:  "Standing armies are dangerous to liberty."  The minutes to the Constitutional Convention reveal that the delegates spent much time discussing the proper balance to be maintained between a national army and the state militias.  James Madison told the Convention:  "As the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good Militia."  The above quoted lines from Articles I and II of the Constitution reflect the compromise the delegates worked out; however, the anti-Federalists who opposed ratification of the Constitution attacked the authority of the Congress to arm the militias.  In Federalist Paper 46, Madison countered:  
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government.  Still it would not be going too far to say that the state governments with the people on their side would be able to repel the danger.  Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of suboridinate governments to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.
Six of the original 13 states, when ratifying the Constitution, proposed amendments which would become the Bill of Rights.  Four of these six ratifying conventions - those of New York, Virginia, Rhode Island and North Carolina - proposed amendments whose language closely mirrored what would become the Second Amendment.  But the debates at the ratifying conventions in these four states make it clear that the delegates wanted to guarantee the right of the states to have militias, despite the constitutional empowerment to the Congress to arm the militias.

For example, at the Virginia ratifying convention, George Mason spoke out against Virginia's ratification of the Constitution without amendment, and Article I section 8 clause 16 was one of the provisions of the Constitution that, to George Mason, mandated the Constitution's rejection:

The militia may be here destroyed by . . . rendering them useless, by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia, and the state governments cannot do it, for Congress has an exclusive right to arm them. . .  Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army.

But we need not give [the federal government] power to abolish our militia.  If they neglect to arm them, and prescribe proper discipline, they will be of no use. . . .  I wish that, in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the state governments might arm and discipline them.  I consider and fear the natural propensity of rulers to oppress the people.  I wish only to prevent them from doing evil.  By these amendments I would give necessary powers, but no unnecessary power.  If the clause stands as it is now, it will take from the state legislatures what Divine Providence has given to every individual - the means of self-defense.  Unless it be moderated in some degree, it will ruin us.

In contrast to the votes of the ratifying conventions of Virginia, New York, Rhode Island and North Carolina, the delegates at the New Hampshire ratifying convention did vote for an amendment that would have provided a personal right to possess arms:  "Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion."  While the proposed amendments of Virginia, New York Rhode Island and North Carolina, are very similar to what became the Second Amendment, the New Hampshire proposal is very different in both form and substance.  In no other state did a proposal to establish an individual right to possess arms pass, although such proposals were made, and voted down, at the Pennsylvania and Massachusetts ratifying conventions.  

The 13 conventions that had ratified the Constitution had proposed countless amendments - Virginia alone had proposed 40, so James Madison was given the task of weeding them out, whittling them down to a mere twelve.  These twelve amendments were duly debated in the First Congress - they would become the ten Bill of Rights, with the eleventh proposed amendment not adopted until 1992.  The actual amendment that Madison proposed to the First Congress read:

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.
In regard to the Second Amendment, not a single Congressman or Senator is recorded as saying that it would establish an individual's right to possess a weapon.   While ambassador to Great Britain, John Adams, in 1787, had authored A Defence of the Constitutions of Government of the United States, in which he wrote that a general availability of arms would "demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man - it is a dissolution of government."  In the First Congress, no one contradicted the Vice President's words.  Rather, most of the debate surrounding the Second Amendment centered on Madison's conscientious objector provision, a provision that makes sense only if it is understood that the amendment guarantees the right of the states to maintain militias and not any individual right to possess firearms.  Congressman Eldridge Gerry (later Vice President to President Madison) spoke out against Madison's conscientious objector language, because he feared that it would result in Congress, and not the state legislatures, defining what a concienscious objector is, and thereby introduce a slippery slope that would ultimately abolish the states' authority over their own militias.  Although both the House and the Senate passed versions of the amendment with the conscientious objector language, this language was stripped out to satisfy the concerns of Gerry and others raising this objection.

In summary, the original intent of the Second Amendment was to protect the right of the states to form and maintain state militias, free of the potential federal incursion created by Article I, section 8, clause 16 of the Constitution.  Hopefully, we will one day get an intellectually honest majority on the Supreme Court that will reverse the judicial activism that the five right wing ideologues on SCOTUS forced on the American people in Heller, Citizens United, and the majority's dangerous restriction on the interstate commerce clause in National Federation of Independent Business et al. v. Sibelius (otherwise known as the "Obamacare" decision).  

Originally posted to Navy Vet Terp on Tue Dec 25, 2012 at 02:42 PM PST.

Also republished by Shut Down the NRA and Repeal or Amend the Second Amendment (RASA).

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    by Navy Vet Terp on Tue Dec 25, 2012 at 02:42:02 PM PST

        •  Thank you both! (46+ / 0-)

          I was wondering when someone would post this historical analysis. As a student of history, I have been amazed that Scalia and his crowd could possibly get away with something so bold as their reinterpretation of the 2nd Amendment. Then again, it's not the only case of their abandoning well established legal precedent in pursuit of right wing wet dreams. (E.g., their record on antitrust)

          Let us not pretend our sorrow in this moment means a damn thing or changes a damn thing, because it doesn’t and won’t. -- Leonard Pitts

          by RudiB on Tue Dec 25, 2012 at 07:08:23 PM PST

          [ Parent ]

          •  B v. G, Heller, Citizens United are all cut from (43+ / 0-)

            same bolt of cloth.  We have 5 Supremes who act as radical judicial activitists while proclaiming their fealty to originalism.  There is no more of a constitutional right for corporations to buy elections than there is a constitutional right to own an AK-47.

            Our jurisprudence, like most of the rest of our politics, is totally upside down.

            Some men see things as they are and ask why. I dream of things that never were and ask why not?

            by RFK Lives on Tue Dec 25, 2012 at 08:05:57 PM PST

            [ Parent ]

            •  I wish the constitutional history (24+ / 0-)

              was as clear as the diarist asserts.  During the time of the adoption of the Constitution and the Amendments, farmers, hunters, woodsmen and others kept and bore rifles and pistols, whether to gain meat for the table, protect against Indian threats (which of course, the Europeans created, and to protect farm animals.  While irt is clear that the reference to the state militias was clearly to keep a balance between state and federal power, the right of individuals to keep rifles, shotguns and pistols was understood, and, as the diarist points out, debated.
                   I would submit that the right of an individual to keep a rifle, shotgun or revolver is clearly within the meaning and intent of the 2nd Amendment, but that the right is not absolute.  Indeed, Heller points out that reasonable limitations and limitations are within the power of the states.  Those limitations can be on the right to carry, openly or concealed in urban areas, limits on the magazine capacity, caliber, number of rounds and velocity and distance that the round can be propelled.  That, together with micro identification, licensing and registration and a ballistic sample of ever gun sold would be within the power of the states, and within the power of the federal government under the commerce clause.
                   These limitations, together with a buy back of all weapons with large capacity magazines, high power cartridges and large caliber bores, as was done in Australia would make us all safer, pass constitutional muster, and reduce the gun fetishism rampant in todays culture.

              Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

              by StrayCat on Tue Dec 25, 2012 at 09:19:30 PM PST

              [ Parent ]

              •  The part I like best (1+ / 0-)
                Recommended by:

                is that while you have the right to keep and bear arms, there is nothing in the constitution about anybody having the right to manufacture, produce, buy or sell weapons.

                Allowing the interpretation that you have the right to keep but not buy or sell would limit you to "arms" you could make yourself.

                I would chose to interpret that literally.  Certainly one set of the "arms you can make yourself" would come attached to  children, in other words you would have the right to keep and bear families.

                I suppose that in a secondary sense such as that given in the manner of a dictionary. You would have a right to keep and bear the arms required to serve in a militia, as long as you could make them yourself, but now we live in times in which college kids have discovered  a cad file and a 3D printer would allow you to make the plastic receiver, trigger and stock of a number of different weapons.

                making guns with a 3d printer

                Live Free or Die --- Investigate, Incarcerate

                by rktect on Wed Dec 26, 2012 at 03:45:28 AM PST

                [ Parent ]

                •  Really? You like that formulation? (9+ / 0-)

                  "You have the right to have an abortion, if you provide it to yourself.  No one has the right to perform abortions on you."

                  •  A woman has the right to choose (0+ / 0-)

                    She can choose to smoke or take drugs and when you know those choices will cost her her life, its still her body and her life.

                    For people who choose to hold on to their guns as a right it probably doesn't matter what any politician or law says. If they have to choose between having a gun and being an outlaw then they do what they have to do.

                    Getting back to Women; a woman has the right and doesn't require the permission to have an abortion, but its a legitimate question whether a doctor or nurse who doesn't want to perform one on her has the right to refuse.

                    I think not but I have no right to legislate that and if I did I wouldn't expect my laws to have any more force than speed limits. People do what they have to do.

                    Those laws which can't be enforced eventually become ignored as regulations, norms, mores and then bluelaws.

                    A doctor who has taken an oath that amounts to a commitment to help people be healthier has a right to choose to do the best they can with an uncomfortable situation; politicians and lawyers should stay out of it but if they don't the next level of decision making comes into play.

                    I expect you need to know your limitations.

                    Though people say "if you want the job done right you do it yourself",  the adage that "a person who defends themself pro-se has a fool for a client" should not be ignored. Common law is common sense in that regard. We have to deal with the simple fact that some things you can't do yourself.

                    What that means to me is if you can't do it yourself you extend yourself into a larger set and you assemble your own team with a midwife, nurse or doctor who has the same mindset you have.

                    Live Free or Die --- Investigate, Incarcerate

                    by rktect on Thu Dec 27, 2012 at 05:11:19 AM PST

                    [ Parent ]

              •  Politicians dueled to the death so I think (1+ / 0-)
                Recommended by:

                gun ownership rights were assumed.

                "We need a revolution away from the plutocracy that runs Government."

                by hangingchad on Wed Dec 26, 2012 at 05:26:37 AM PST

                [ Parent ]

                •  ah, but dueling was strictly illegal (4+ / 0-)
                  Recommended by:
                  mikejay611, ByTor, emelyn, jeff in nyc

                  It was already archaic at the time, and many viewed it as barbaric; those who still viewed it as honorable still took precautions so as not to be caught.  It's best not to confuse that execrable practice with this conversation.

                  (in any event, duels were also nearly as often conducted with knives and swords as with pistols at ten paces)

                  Conservatives need to realize that their Silent Moral Majority is neither silent, nor moral, nor a majority.

                  by nominalize on Wed Dec 26, 2012 at 07:13:43 AM PST

                  [ Parent ]

                  •  It was NOT illeagal at all.. (0+ / 0-)

                    Do your homework..

                    "We need a revolution away from the plutocracy that runs Government."

                    by hangingchad on Wed Dec 26, 2012 at 07:15:56 AM PST

                    [ Parent ]

                    •  Ok (5+ / 0-)
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                      rb608, emelyn, JDog42, mrkvica, jeff in nyc

                      Then why did Hamilton and Burr have to sneak across the Hudson to Weehawken,NJ to have their duel in 1804?

                      Answer: dueling was illegal in NY in 1804.

                      "[L]et us judge not that we be not judged." Abraham Lincoln, March 4, 1865

                      by ByTor on Wed Dec 26, 2012 at 08:07:49 AM PST

                      [ Parent ]

                      •  This in light of the context of which I spoke make (0+ / 0-)

                        irreverent. While it may have been technically illegal in NY it was not elsewhere. i.e.  gun ownership and the 2nd amendment are still valued in the us even after 1804.  Your agreement is weak and it does nothing to support the idea that gun ownership is not something that was common and  thought of as a right.  Duels from NY happend in NJ and all over .. it was common and i.e  gun owneship too. the diead that somehow one city  making duilign illegal abrogates the plain meaning of the 2nd amendment is  weak.  In fact all over and in increasing numbers in the navy mad it  necessary in the 1820's to make it illegal as part of the code of conduct of hte military. I am just posing this to you all so you can get off yoru high horse cause the 2nd amendment in light of history protects gun ownership because it was a common understanding of the day.

                        "We need a revolution away from the plutocracy that runs Government."

                        by hangingchad on Wed Dec 26, 2012 at 08:34:22 AM PST

                        [ Parent ]

                        •  Actually, no (5+ / 0-)
                          Recommended by:
                          rb608, emelyn, mrkvica, jeff in nyc, The Knute

                          You implied, if not directly stated, through your series of posts, that dueling was not illegal anywhere in the US prior to 1820.  I pointed out that your implication (or statement) is incorrect as a matter of fact.  At least as to the laws of New York in 1804, and as to easily the most high profile dueling incident in the history of the United States.  

                          Facts are stubborn things.  You should give into them when making your arguments.

                          Regarding the rest of the material included in your message, I never addressed any of that, so I'm not sure why you are attributing all of these arguments and statements to me.  

                          "[L]et us judge not that we be not judged." Abraham Lincoln, March 4, 1865

                          by ByTor on Wed Dec 26, 2012 at 11:37:49 AM PST

                          [ Parent ]

                          •  My point is that it was not illegal fedrally (0+ / 0-)

                            And added to that it was expected that people had firearms. Thsue the argument of a limited 2nd amendment is false. Get over it. I am for gun regulation but not abrorogation.. I am a gun owner and  hunt and also have a shotgun for home defense.  

                            The point is that the argument that the founders did not see people owning guns is not true in the light of the historical context.. its artifical of you to try.

                            "We need a revolution away from the plutocracy that runs Government."

                            by hangingchad on Wed Dec 26, 2012 at 01:33:17 PM PST

                            [ Parent ]

                          •  Your comment was about the legality of dueling (0+ / 0-)

                            generally, not whether there was a Federal law making the practice illegal.  You must know that in the early years of the Republic, there were very few Federal laws about anything.  Also, dueling, concerned as it is with state sanctioned murder, would normally be considered even now within the scope of the so-called police powers of state and local authorities.  The Federal government, even now, does not have general police power - that is reserved to the states.    

                            I take your response as a concession to the facts as I pointed them out, and have now elaborated - that is, some states did (NY at least), in fact, outlaw the practice of dueling very early on in the history of this Republic.  That, contrary to your blanket assertion to the contrary.    

                            Now that you seem intent on engaging - I never said that the Founders did not envision individual gun ownership.  But I also don't think Amendment II has anything to do with individual gun ownership.  

                            How's that for a mind-blowing paradox?  

                            "[L]et us judge not that we be not judged." Abraham Lincoln, March 4, 1865

                            by ByTor on Wed Dec 26, 2012 at 01:59:42 PM PST

                            [ Parent ]

                      •  Dueling was also illegal in New Jersey (1+ / 0-)
                        Recommended by:
                        jeff in nyc

                        but the laws were more strictly enforced in New York

                        Conservatives need to realize that their Silent Moral Majority is neither silent, nor moral, nor a majority.

                        by nominalize on Wed Dec 26, 2012 at 03:29:49 PM PST

                        [ Parent ]

                    •  Duelling had been illegal in colonial times (1+ / 0-)
                      Recommended by:
                      jeff in nyc

                      as it had been in England since before colonization. Specific laws weren't required because it was simply considered murder or manslaughter in the common law, or if no one was killed, assault.  

                      That said, dueling persisted wherever the strict adherence to the archaic culture of honor did, notably in the rural areas where Scotch-Irish immigrants moved to, and the military (the Navy lost more officers to dueling in the early years of the republic than to combat).  Since the offense was under the common law, for a long time, magistrates or juries ignored it.  

                      What really did the trick, though, was two things: First, a fading of the culture of honor (which still drags down the south and to a lesser extent the west), and working with the culture: putting in disincentives that would allow someone to opt out of the duel and preserve his honor.  A 1718 Mass. law set out to humiliate duellists publicly; the stain upon their name that would ensue outweighed that of not accepting a challenge.  The military's 1775 Code of War expressly honored those who refused to duel.  

                      As for Burr and Hamilton, Burr's seconds were convicted of arranging the duel and lost their voting rights.  Burr fled New Jersey and New York rather than face a court, and lost his political career.  Kentucky passed a law banning duellists from public office in 1799.  NC in 1802, TN in 1809, VA in 1810.   SC banned them from any respectable profession, and so did GA, AL, and MS.  Now, of course, there was always a distinction between passing a law and enforcing it, as it came into fashion after the Revolution.  But dueling was always illegal in the US, whether as a specific act or not.  

                      But like I said, dueling has nothing to do with guns per se, since if guns had been illegal, duellists would have used swords, as they did in many other countries.  

                      Conservatives need to realize that their Silent Moral Majority is neither silent, nor moral, nor a majority.

                      by nominalize on Wed Dec 26, 2012 at 03:43:50 PM PST

                      [ Parent ]

                  •  Start here.. saying it was illigal is so so wrong. (0+ / 0-)

                    "We need a revolution away from the plutocracy that runs Government."

                    by hangingchad on Wed Dec 26, 2012 at 07:18:29 AM PST

                    [ Parent ]

                  •  in fact it did not start becoming illegal till (0+ / 0-)

                    Arround 1820 when the navy  haed to make it illegal bacues too many deaths wre happening in the navy. This expanded slowly until after the civil war..  So your statement is not correct nor is it pertinent to the discussion because the founders did not accept the idea it was illegal.  

                    "We need a revolution away from the plutocracy that runs Government."

                    by hangingchad on Wed Dec 26, 2012 at 07:25:39 AM PST

                    [ Parent ]

              •  I would submit it was left unaddressed (0+ / 0-)

                In the spirit of a small weak federal govt, which was the construct under the Articles of Confederation, the personal use and possession of firearms was left unaddressed; i.e none of the government's concern.
                It was considered a responsibility of state govts to keep a militia ready, since the country had just fought a war with a ragtag army, so that part was spelled out.
                I think reading anything else into the wording of the 2nd amendment aside from what it actually says is an exercise in opinion, not history.

                Stand for something, or you'll fall for anything - Malcolm X via Skindred

                by kamarvt on Wed Dec 26, 2012 at 11:50:38 AM PST

                [ Parent ]

                •  But now (1+ / 0-)
                  Recommended by:

                  we are sadly left with the problem of interpreting the language of this relic from a former time, since it is a part of our organic law.  So, interpret we must - regardless of whether it might be an exercise in "opinion" as you say.  

                  BTW, for anyone who has ever taken a course in US Constitutional Law, I submit that the takeaway is that all of it, without exception, is "opinion" in some form or another.  Constitutions, including ours, are not holy writ - they are merely organic agreements as to how government will be conducted.  Ours was imperfect from the start - as are all such efforts by mortals.  We have striven over the years, through "opinion," to make ours better, with the enlightenment of hard experience.

                  I must say, I do not understand why Amendment II to our Constitution must or should be held apart from this natural, and indeed societally necessary, process.  

                  "[L]et us judge not that we be not judged." Abraham Lincoln, March 4, 1865

                  by ByTor on Wed Dec 26, 2012 at 12:12:23 PM PST

                  [ Parent ]

              •  One additional argument against the applicability (3+ / 0-)

                of the Second Amendment to our modern era is the difference in firearm technology available in 18th century America and the technology available in the 19th, 20th ,and 21st centuries. It is the fearfilled obsession Americans have that the writers of the Constitution might prove to be fallible in creating a legal document applicable to all eras, epochs and ages. When the Constitution was ratified, the powder and ball -  flint fired musket was the state of military weapons technology for soldiers at the time. The English Redcoats were considered the best armed and trained army in the world at the time.

                The Redcoats utilized a battle formation known as the "British Squares" which required the troops on the battlefield to go into a square or box-like formation. The first row of troops faced the enemy with their rifles loaded and maintained a kneeling position while firing their muskets from this position. There was a second row of soldiers standing directly behind the kneeling row. This row fired from their standing position over the heads of the kneeling soldiers. meanwhile the 3rd and 4th ranks stood behind the standing row of firing soldiers and reloaded their rifles with powder, ball and setting up the flint as fast as possible. Then the 3rd and 4th ranks with muskets reloaded would quickly swap positions with the 1st and 2nd ranks. This allowed the alternate ranks time to reload their muskets while the other ranks were laying down a wall of shots against the enemy's position. This formation was considered the most powerful battle tactic at the time as it was able to lay down the greatest field of fire (aside from artillary) in openfield battle. It had been proven capable of even fending off enemy calvary charges as long as the soldiers in the square remained well disciplined and steadfast in their positions. Now-a-days one U.S. Army military grade automatic rifle in the hands of one soldier has a magnitude greater fire power than the entire English battalion from days of colonial America.

                Does it make sense that the framers of the Constitution could have had ever imagined the availability of 21st century gun technology in their day? Furthermore, bolt action rifles, semi-automatic rifles, shotguns, revolvers and other handguns did not exist in1791; but flintlocks and muskets did. Hell in 1791 all rifle barrels were smooth bore - rifling hadn't been invented yet.

                I agree with the poster, Madison was writing law applicable to the American society of 1791. and he clearly drafted the Second Amendment as a compromise to secure the final ratification of the Constitution. The ongoing argument between the Federalists and the Anti-Federalists was primarily bound up in whether the states would control their Militias or if the Federal government would control the state militias. This was a complex controversy in that it involved not only issues of control but issues of funding, namely who would bear the cost of maintaining the state militias? So it is clear from the discussion that the political controversy was over who would control this potential second level army in the form of state militias. When the Anti-Federalists accepted the right of the Federal government to SPECIFY and REQUIRE defined levels of training for the state militias, then the militias could no longer be categorized as a group of individual adhoc volunteers pressed into action for emergency military service.

                Gun rights advocates use the concept of a Lexington and Concord "Minute man" type of militia where farmers and shop keepers could be quickly assembled with THEIR OWN PERSONAL guns into a state militia to perform military duty. This is what is meant in the Second Amendment by "the people's right to BEAR arms" the gun lobby would argue. They go on to argue that the Second Amendment guarantees the people's right to OWN PERSONAL guns so they will have ARMS available to BEAR when the people are called upon in an emergency situation to become part of the state militia assembled to perform military duty.  

            •  In the NYTimes today (20+ / 0-)

              Legal Curbs Said to Hamper A.T.F. in Gun Inquiries

              ...under current laws the bureau is prohibited from creating a federal registry of gun transactions. So while detectives on television tap a serial number into a computer and instantly identify the buyer of a firearm, the reality could not be more different.
              About a third of the time, the process involves digging through records sent in by companies that have closed, in many cases searching by hand through cardboard boxes filled with computer printouts, hand-scrawled index cards or even water-stained sheets of paper.

              In an age when data is often available with a few keystrokes, the A.T.F. is forced to follow this manual routine because the idea of establishing a central database of gun transactions has been rejected by lawmakers in Congress, who have sided with the National Rifle Association, which argues that such a database poses a threat to the Second Amendment. In other countries, gun rights groups argue, governments have used gun registries to confiscate the firearms of law-abiding citizens.

              The bureau’s struggles are epitomized by its lack of a full-time director since Congress, prodded by the N.R.A., decided that the position should require Senate confirmation.
              I am extremely tired of extremists.

              Research Shows Poverty Creates the Biggest Achievement Gap.

              by Desert Rose on Wed Dec 26, 2012 at 04:35:39 AM PST

              [ Parent ]

              •  The thing about this comment (5+ / 0-)

                It shows the fallacy inherent in the "solve the mental illness, and you solve guns" line of thinking.

                Part of what drives  the phenomenon of gun ownership in the US is the specter of government tyranny.  Why would a government be any less tyrannical if it started collecting all of the names of people that it decided were "mentally ill."

                A list of people a government says is mentally ill could easily be used against the people.


                by otto on Wed Dec 26, 2012 at 06:16:12 AM PST

                [ Parent ]

                •  Mental illness, thus far, is not solvable. Most (5+ / 0-)

                  rational people, however, do not believe mentally ill  people should have access to lethal weapons.  For those driven to gun ownership for fear of government tyranny, I have news for them.  The government has drones, missiles, tanks, and way more guns and ammo than any civilian.  

                  Research Shows Poverty Creates the Biggest Achievement Gap.

                  by Desert Rose on Wed Dec 26, 2012 at 06:43:58 AM PST

                  [ Parent ]

                  •  I'll clarify a bit. Mental illness is treatable (5+ / 0-)

                    in many cases.  However, preventing the onset of mental illness, thus far, is not solvable.

                    Research Shows Poverty Creates the Biggest Achievement Gap.

                    by Desert Rose on Wed Dec 26, 2012 at 06:45:45 AM PST

                    [ Parent ]

                  •  It is possible (0+ / 0-)

                    Even as someone who is interested in reducing the number of guns, I have to recognize that a small group of armed people can make changes.

                    Fighting back at whatever level possible would lead to news that spread around the world.  That is where the help would come.  Not from actually defeating the govt.

                    The reason I used the word "solved" in reference to mental illness is the RKBA side of this discussion focuses on that as if it is possible, or that if we were able to take the guns out of the hands of people who are frequently delusional and paranoid would do something.

                    A list of mentally ill would be opposed just as a list of gun owners would be opposed.


                    by otto on Wed Dec 26, 2012 at 07:16:43 AM PST

                    [ Parent ]

                    •  And as we know from our own history (0+ / 0-)

                      and that of the Soviet Union in particular, the diagnosis of mental illness can be politicized and is by definition more subjective than physical illness. Moreover, not all mass murderers or serial killers have been diagnosed as mentally ill. Timothy McVeigh was not crazy, he was a man with a political agenda. It's easy to see how a registry of the mentally ill could be used for political purposes.

                      I never liked you and I always will.

                      by Ray Blake on Wed Dec 26, 2012 at 06:21:06 PM PST

                      [ Parent ]

                •  True (0+ / 0-)

                  If we actually tried to do this, I predict that gun advocates will swiftly and loudly recall the history of the Soviet Union using claims of mental illness as a tool against dissidents.

                  “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

                  by jrooth on Wed Dec 26, 2012 at 07:14:19 AM PST

                  [ Parent ]

                •  The thing about tyrannical govt's and gun control (2+ / 0-)
                  Recommended by:
                  Desert Rose, RainyDay

                  is that in every case, the tyrannical government was already tyrannical and kept on being so.  But the advocates leave out the democracies that disarmed... in every case, the democracies kept on being democracies.

                  Conservatives need to realize that their Silent Moral Majority is neither silent, nor moral, nor a majority.

                  by nominalize on Wed Dec 26, 2012 at 07:16:04 AM PST

                  [ Parent ]

          •  Superb diaries, excellent historical research! n/t (3+ / 0-)
            Recommended by:
            madcitysailor, rb608, carver

            No one in this world has ever lost money by underestimating the intelligence of the great masses of the plain people. H. L. Mencken

            by jim0121 on Wed Dec 26, 2012 at 07:23:47 AM PST

            [ Parent ]

      •  No thunder stolen! (53+ / 0-)

        Yours and mine have different perspectives, each (I believe) very pertinent to the issue.  Yours does a beautiful job of challenging the Constitutional arguments given (erroneously!) for gun rights.  Mine hopes to shed an ugly light on the notion of a "militia," encouraging reasonable people to avoid being associated with it.  Hopefully, we (and many other Kossaks) will be part of an overwhelming confrontation of the moral and legal irresponsibility of laws that set inadequate limits on gun ownership.

        •  I liked your emphasis on the "well-regulated" (0+ / 0-)

          militia. The NRA is pretty quiet about those regulations. I just wish the remainder of your diary hadn't been a parade of murderers.

          On the one hand, I feel very strongly about destigmatizing mental illness and believe that people with mental disorders shouldn't be shamed and hidden.

          On the other hand, I don't think anyone should have their face or name remembered because they committed such horrible acts. The cause of destigmatization is not helped when the public face of mental illness is dominated completely by the grins of mass murderers.

          I keep hoping to forget those names...

          “The right of the people peaceably to assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged.”

          by Marko the Werelynx on Wed Dec 26, 2012 at 11:58:14 PM PST

          [ Parent ]

      •  Garry Wills (0+ / 0-)

        Has a damn good takedown of all of this nonsense in A Necessay Evil also.

        GOP: The Party of Acid rain, Abortion of the American Dream, and Amnesty for Wall Street.

        by Attorney at Arms on Wed Dec 26, 2012 at 11:56:10 AM PST

        [ Parent ]

  •  AR-ticle 15 has to be in there somewhere! (28+ / 0-)

    If they look hard enough, they'll find it.

    Somebody has to do something, and it's just incredibly pathetic that it has to be us.
    ~ Jerry Garcia

    by DeadHead on Tue Dec 25, 2012 at 02:52:51 PM PST

  •  I think it was... (16+ / 0-)

    always understood that people--who were mostly rural-- would have long guns to hunt game animals... I'm just left wondering how that fits in with the 2nd Amendment as it was drafted at the time... Perhaps the difference between a right and a practical need, the two [here] not being mutually exclusive...

    •  Important point. (11+ / 0-)

      If I recall correctly (and for many reasons, I may not just now), the American Revolution required militias to fight against the forces of the Crown. There was no U.S. Army, because the country didn't even exist. The Constitution came shortly after the Revolution, during which arms were required (for numerous reasons).

      Off topic?

      To a similar point, in the last few years the small-town police on both sides of the Texas-Mexico border were totally out-gunned by violent drug cartels, notably Los Zetas. So the state had to issue them automatic weapons in what was formerly some of the quietest territory on earth (at least for a time).

      Zetas: An October 22, 2003 article in The Brownsville Herald (TX) reported that the notorious Gulf Drug Cartel has hired 31 ex-Mexican soldiers to be part of its hired assassin force, The Zetas. According to the Mexican secretary of defense, at least 1/3 of these deserters were trained at the SOA as part of the elite Special Air Mobile Force Group. Their highly specialized and dangerous weapons, training, and intelligence capabilities are now being used to increase the availability of the drugs and terrorize the region. The Mexican attorney general’s office implicates them in dozens of shootouts, kidnappings and executions of police officers.

      They are totally un-related to hunting, which in my area many people use to supplement their food budget. How it was is how it is, sometimes.

      But not with automatic weapons.

      "Let each unique song be sung and the spell of differentiation be broken" - Winter Rabbit

      by cotterperson on Tue Dec 25, 2012 at 05:09:57 PM PST

      [ Parent ]

    •  AT THE TIME of the American Revolution... (19+ / 0-)

      ... there were NO standing armies.  Zero money was available to train or equip a standing army with professional soldiers, so men who owned guns were signed up on militia lists and called out in defense of their local community if need be.  There was also no money for clothing or food or anything else to equip an army.  Remember the stories of soldiers without boots, feet wrapped in bloody rags when they crossed the Delaware on Xmas eve?  True.  The stories of eating fried flour and water at Valley Forge the winter of 1777-78?  True..., and my ancestor, Andrew Bennett was there that winter.  He's listed on Valley Forge muster rolls.

      As soon as the Revolutionary War was over, we were back to no standing army.  We had no standing army until after the War of 1812.

      The Second Amendment was written immediately after the Revolutionary War..., when there was NO standing army, and only local militia lists of men to call out if there was trouble of any kind.

      I do genealogy research [have done for 50 years off and on, and now daily or weekly since getting my first computer the fall of '01] and have multiple maternal and paternal ancestors who were on ATBA [Able To Bear Arms] lists from the Mayflower forward.

      There was no standing army, obviously, but they had old blunderbusses that could protect them or kill game for food.  Keep in mind, these things were wildly inaccurate and a shooter was lucky if he could hit the broadside of a barn, so if he could kill a deer or moose or whatever, it took luck or knowing how far off the mark the gun was and adjusting to hopefully hit the target.

      When the militias were called out to go to Rhode Island during King Philip's War, one of my maternal line ancestors was among the men from Marshfield, MA.  Wm. Sherman came back from the Great Swamp Fight in King Philip's War and was thereafter "prone to bouts of temporary insanity" [PTSD, presumably] because of what he saw there.  He died relatively young, his widow, Desire Doty Sherman, married two more times, had children by all three men, and outlived all three. [Desire's father, Edward Doty, was a passenger on the Mayflower.  It turns out I'm twice descended from Edward Doty.]

      Same war:  In my paternal line in RI, John Tefft was killed and beheaded in the Great Swamp Fight in RI and his body lay unburied for a while (John's eldest son, Samuel, is my ancestor).  John had been out looking for his second son, Joshua, who had married an Indian woman and had a son by her.  Joshua was accused of firing on the colonists, for which he was convicted and executed for treason.  [Joshua's son was allowed to inherit, so some modern researchers think that since Joshua's property was not seized by the Crown meant it was a kind of apology, as in "whoops, we were hasty in our judgment, so you get to inherit your father's property" kind of thing.]

      Close to a century later, Revolutionary War.  I had several ancestors enlist in it..., and one Loyalist who went to Canada (getting that info was one of my first lucky finds not long after I got my first computer).

      The ancestor for whom I have images of actual contemporary documents that I just found earlier this month was Andrew Bennett, 8th Massachusetts Regiment (under Col. Michael Jackson).  He was born in ME, which was still part of MA at the time.  He enlisted on 7 January 1777, was at the Siege of Ft. Stanwix [aka Schuyler], and in both Battles of Saratoga as a member of the Massachusetts Line, and his (and other) MA Regiments were under the command of Gen. Learned.  Winter was upon them by then, and the troops wintered at Valley Forge (an online map shows where the three MA regiments under Learned were camped.  My Andrew is on muster rolls from Dec. 1777 through June 1778 when he's listed as sick in Yellow Springs Hospital.  He obviously recovered because he was also at the was at the Battle of Stony Point.  When his three-year enlistment was up, he reenlisted the same day and remained in the army until the end of the war.  With other soldiers, he ended up at Newburgh where Washington was awaiting word of the signing of the peace treaty at Paris..., and, more importantly, for the money the French ships were bringing so they could pay the soldiers who had not been paid for months, years.  Andrew's honorable discharge is signed on 13 June 1783 by 'G.Washington' at Newburgh.

      Except for being sick at Valley Forge [what was wrong isn't listed, but it's known that dysentery, typhus, and pneumonia were rife that winter], I've not yet found paperwork on any injuries.  By 1818 he had a large family on a farm in ME..., and had become disabled and couldn't work his farm because of a broken thigh bone and shoulder bone.  His wife and two children under age 10 still lived on the farm, but they couldn't do all the work or manage the farm and Andrew had no money or occupation beyond being a farmer so he applied for a Revolutionary War pension (he got it, too).  Just about that same time I have the dated deed for the 100 acres of land that was a bounty as payment for being a soldier in the Rev. War.  [Riiiiiight.  A small amount of money and land they had no right to was promised to soldiers of the Revolutionary War by the Continental Congress....  The pension legislation came later after we became a nation.]

      The side benefit of doing genealogy research is also learning the history of what was going on in this (or any other) nation when those same ancestors were alive - at least the highlights, if nothing else.  Historical events shaped the decisions our ancestors made about the lives they lived.

      Woven in the story of some of my ancestors is the history of this nation.  My ancestors were THERE, participated in it..., and in my genealogy research I've had to familiarize myself of what things were like for our colonial ancestors, the historical things that happened, laws they lived by [first English, then our own].

      I've been all too aware of the wording of the Second Amendment for years, and the context of why it was worded the way it was..., the first part of which the gun nuts ignore for the simple reason they don't know a damned thing about the history of this nation and what life was like for our early ancestors AT THE TIME the US Constitution was written, so they don't know the CONTEXT of WHY it was worded the way it is.  [For that matter, perhaps their ancestors were not here that early, arrived later with the influx of other migrating peoples....]

      If you don't have time to glean info over fifty years of genealogy research and reading historical tomes because you've just found out your ancestors were there, here's the short version of historical highlights surrounding the Revolutionary War and what led up to writing the US Constitution and the all-important CONTEXT of some of those laws:

      PBS:  Liberty!  [This is the better of the two documentary series on the Revolutionary War and the writing of the US Constitution.  I was bawling by the end of the fifth and sixth episodes.  Both series have good points and quotes by contemporaries, but this one is more concise.]
      PBS:  Timeline of the Revolution [part of the Liberty! web site]

      The Documentary Site [on YouTube] has put Liberty! online.  [Episode 4 intro talks about Burgoyne.]

      Liberty: The American Revolution - Episode 1 of 6 - The Reluctant Revolutionaries

      Liberty: The American Revolution - Episode 2 of 6 - Blows Must Decide

      Liberty: The American Revolution - Episode 3 of 6 - The Times That Try Men's Souls

      Liberty: The American Revolution - Episode 4 of 6 - Oh Fatal Ambition

      Liberty: The American Revolution - Episode 5 of 6 - The World Turned Upside Down

      Liberty: The American Revolution - Episode 6 of 6 - Are We to be a Nation

      The Revolution [This gives the chronological order of the shows; the ones posted on YouTube don't have the numbers.  The last two episodes are pretty much a review of the previous eleven, but the last fifteen minutes or so are quite good.]

      The HistoryFeed didn't post [or deleted] the first video from the series.  Someone else put it online in three parts.  This link gets you the second through thirteenth videos in chronological order on a playlist..., or click each link below in chronological order.

      01 The Revolution- Boston, Bloody Boston
      1 TheRevolutionBostonBloodyBoston.m4v
      2 Boston Bloody Boston pt. 2.m4v
      3 Boston Bloody Boston pt 3.m4v

      02 The Revolution- Rebelling To Revolution

      03 The Revolution- Declaring Independence

      04 The Revolution- American Crisis

      05 The Revolution- Path To World War

      06 The Revolution- Forging An Army

      07 The Revolution- Treason & Betrayal

      08 The Revolution- The War Heads South

      09 The Revolution- Hornet's Nest

      10 The Revolution- The End Game

      11 The Revolution- Becoming A Nation

      12 The Revolution- Road To The Presidency

      13 The Revolution- A President and His Revolution

      I'm sick of attempts to steer this nation from principles evolved in The Age of Reason to hallucinations derived from illiterate herdsmen. ~ Crashing Vor

      by NonnyO on Tue Dec 25, 2012 at 08:47:22 PM PST

      [ Parent ]

      •  This deserves it's own diary. Please do (7+ / 0-)

        us all the kindness and post.  You have obviously done incredible research.

        •  Thank you.... (8+ / 0-)

          Yes, I do plan to do a diary about a few of my ancestors and post them with the Family History and Genealogy Community.

          I have ancestors from seven different countries, so I have some knowledge about how to find data not only in the US, but in the countries where some of my ancestors came from.  Every genealogist seems to have little areas of expertise once they work with these things long enough, so if one has a good network of other researchers, one can then ask other people for help, too.

          Finding the paperwork on Andrew's pension application is the latest and "fits" in with the current 2nd Amendment controversies, altho the first clause that mentions the Militias alerted me to the meaning a a long time ago (as I said, Andrew isn't the only one who served in the Rev. War, but he's the one I'm currently researching; I was looking for something else when I came across this file on Andrew..., so took off on this lovely detour).  I knew Andrew had been in the Rev War from previous research; I had that years ago..., but I only found copies of the paperwork from his pension file and his discharge papers from the same file earlier this month, so it's been on my mind a whole lot.  I'm still seeking details to fill out that period of six+ years he was in the war and working on the chronological timeline of battles he was in and comparing that to what else was going on in the Rev War.  The names of the battles I didn't know about until I found his pension file - a separate set of books from MA about the Rev War soldiers gives a physical description of him - so now I'm additionally researching the regiment.  Andrew was only a lowly private, so he wasn't "anyone important," but finding his regimental commanders and their supervising commanders again on up to the top generals is how I can follow Andrew's movements through the war.

          While collecting all these various papers is time consuming (and sometimes quite expensive), once one has the documents about one's ancestors and studies the surrounding history of their lives, all of a sudden they become very real flesh and blood people, not just a name and set of dates on one's pedigree chart (I have many lines that are documented back to the late 1500s & early 1600s).  Sometimes genealogy research is a very emotional experience when one knows these individuals are part of one's self....

          So..., once I have more data..., yes, I plan on doing a diary....

          Thank you!  :-)

          I'm sick of attempts to steer this nation from principles evolved in The Age of Reason to hallucinations derived from illiterate herdsmen. ~ Crashing Vor

          by NonnyO on Tue Dec 25, 2012 at 11:26:28 PM PST

          [ Parent ]

    •  Perhaps the recognized right (0+ / 0-)

      was emplaced in the original 'Bill Of Rights' so the people would be assured that the government could not abrogate that right in some kind of blanket action.

      I was taught (way long ago, when civics and American history were required subjects) that the rights enumerated in the Bill of Rights were those that the people of the colonies needed to have recognized by the new government before they'd ratify the Constitution. The means to protect one's life, family, property and livestock from direct threat had been there for as long as there had been colonies. They were ensuring that said right was not abrogated by government in the future to further the aims of corruption in said government. Which is always a clear and present danger OF governments.

      Urbanization has resulted in less of a need for such protections among city dwellers. They have standing armies... er, police forces to protect them from marauders and brigands. They only sometimes own property, and it's usually tightly bounded by their neighbors. Again, city police and fire departments are charged with preservation. And city people are lucky to have pets, vanishingly few run livestock, and that livestock isn't usually threatened by wild animals or determined rustlers.

      I am perfectly willing to accept limitations on gun ownership and use inside city limits. But I am absolutely not willing to give up my shotgun because there are armed wackos in the cities. I still have life and limb, loved ones living here or visiting, double digit acreage/property, and livestock threatened by wild animals. Don't hunt because we don't eat meat, but could if we needed to, on our property or on the game lands that border our property (need a permit to take game on those lands, regulated by the state). Even today, not everyone lives in a city. Advocates for blanket disarmament need to accept that restriction on their goals as much as I accept restriction on my ability to carry and/or use my guns in their neighborhoods.

      Absolutists just muck up any reasonable accommodations. So long as the debate focuses on absolutes, nothing meaningful will be accomplished to stop the violence.

  •  you're right... (34+ / 0-)

    ...unless an activist, right-wing Supreme Court has enough irrational, illiterate political hacks to flip the middle finger at what the Constitution favor of their own personal political biases and prejudices (which is how we've landed in this legalistic bizzarro-world whereby the radical, right-wing Supreme Court...has told everybody in this country that they can go f#%k themselves...).

    Those irrational, illiteral political hacks who have disregarded the Constitution and reason itself include lunatics like Antonin Scalia, Clarence Thomas, Sam Alito, William Kennedy and John Roberts.

    •  I am totally convinced... (11+ / 0-)

      ... they have never studied the history of this nation between 1620 up through the day that George Washington took the oath of office to become our first president.

      They certainly get off on some bizarre and convoluted lines of reasoning.

      Corporations have "legal personhood" and can "use money as free speech"....

      Yeeeeaaaaah.  Riiiiiiiiiiight.  

      Hey $COTU$ Morons:  If you believe that is moral or ethical or find somewhere in the US Constitution where this is even hinted at as being constitutional or legal, I want to know where it is.  If you find it... show me!  If not... I have a bridge to sell you - historical provenance included, even.

      I'm sick of attempts to steer this nation from principles evolved in The Age of Reason to hallucinations derived from illiterate herdsmen. ~ Crashing Vor

      by NonnyO on Tue Dec 25, 2012 at 09:20:58 PM PST

      [ Parent ]

  •  Like on other issues (18+ / 0-)

    They stick their fingers in their ears and go la la la la la.........................and if one gets louder explainin they raise the pitch of the la la la la la.........................!!

    Or they just ignore, like they do the whole bush admin, and much much more!!!

    Vets On FLOTUS and SLOTUS, "Best - Ever": "We haven't had this kind of visibility from the White House—ever." Joyce Raezer - Dec. 30, 2011

    by jimstaro on Tue Dec 25, 2012 at 03:04:30 PM PST

  •  The most concise, precise and definitive analysis (45+ / 0-)

    of the 2nd Amendment to the US Constitution and it's historical background, including documented sources such as US and individual State Supreme Court cases, as I have ever read.

    Huzzah! for a superb example of logic and source data over ideology and revisionist-history.

    Tip'd, Rec'd and Tweeted.

    Write on! Navy Vet Terp


    and a happy holiday to you and your's
    -- angie

    "I like paying taxes...with them, I buy Civilization" -- me

    by Angie in WA State on Tue Dec 25, 2012 at 03:09:12 PM PST

  •  Thanks! I've Heard Thom Hartman Also Refer to It (15+ / 0-)

    as an assurance to the states but I'd never heard him go into much analysis of it.

    I wonder if the facts of ubiquitous police forces and National Guard would (in a rational government) satisfy the well-regulated militia clause in and of themselves.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Tue Dec 25, 2012 at 03:12:06 PM PST

    •  The State Militias became the National Guards (42+ / 0-)

      by a series of federal legislation between the end of the Civil War and World War I.  Before the Civil War, despite Article 1, section 8, clause 16 of the Constitution, there was little or no federal oversight of the state militias.  Each militia had their own uniforms and inconsistent training, notwithstanding the Constitutional requirement for Congress to oversee this training.  Worst, each state relied on state armories to provide weaponry, with each state armory producing rifles of different calibers, some found nowhere else.  

      When the Civil War began, Lincoln called up the state militias into federal service, but many brought uniforms that looked just like the Confederate grey, and their unique rifles quickly became useless as factories did not mass produce rifles and bullets with these calibers.  Also, Union generals after the war were unanimous in expressing their disgust with the training, or lack thereof, that the militia members brought with them into the Union army.  These generals proposed, and Congress adopted, legislation transforming the militias into the National Guards, providing the Guards with standardized training, uniforms and weaponry.  See An Army for Empire, Graham Cosmas, Texas A&M University, 1998.

      A more radical version of American history would teach that the state militias were upgraded into the Nationals Guards after the Civil War not only at the behest of the generals who had fought the Civil War, but also at the behest of the Robber Barons and the governors and other politicians who did their bidding, so that a professional, well-trained, and well-armed National Guard could shoot down strikers and other rabble rousers.  There is some merit to this.

      "We have always known that heedless self-interest was bad morals, now we know that it is bad economics." Franklin Delano Roosevelt, Jan. 20, 1937

      by Navy Vet Terp on Tue Dec 25, 2012 at 03:33:46 PM PST

      [ Parent ]

      •  Navy Vet Terp: Militia Act of 1903 (9+ / 0-)

        a/k/a the Dick Act.

        U.S. Senator Charles W. F. Dick, a Major General in the Ohio National Guard and the chair of the Committee on the Militia,[1] sponsored the 1903 Act towards the end of the 57th U.S. Congress.
        Nota Bene:
        Ohio's use of "National Guard" by some Civil War units, was a declaration of affiliation with the Union sentiments, than an official Congressional acknowledgement.

        Not all militia were incompetent, just unconventional and used in an inappropriate fashion by "Regular" Generals:
        Zouave units (see America Civil war, half-way down)

        Fifth NY

        To the set-piece Generals wheeling and flanking, the concept of irregular drill and methods meant these militia men were expendable.  They weren't "Well Regulated".  Here's a paragraph from the cited wiki:

        A feature of some American zouave units, at least in the opening stages of the American Civil War was the light infantry tactics and drill they employed. Zouaves "utilised light infantry tactics that emphasised open-order formations, with several feet between soldiers, rather than the customary close order, with its characteristic 'touch of elbows.' They moved at double time, rather than marching at a stately cadence, and they lay on their backs to load their rifles rather than standing to do so. To fire they rolled prone and sometimes rose on one knee."
        What failed to be acceptable to a West Pointer in 1862 is now standard small unit tactics adopted by our nation's troops.

        (we agree on the misuse of Nat'l Guard as strikebreakers)

    •  It would seem like an odd place for it (1+ / 0-)
      Recommended by:
      ER Doc

      If the amendment was a designation of power to the states and not to the individual, it probably should have been placed alongside the 8th-10th amendments and not immediately following the very personal 1st amendment.

  •  Not a surprise (27+ / 0-)

    No one even talked about the second amendment as an authoritative individual right to carry weapons until the conservative reaction began to gain steam in the 1970's. Large majorities of the population even favored banning handguns in the early 1960's; an impossibility if one thinks the second amendment is an individual right.

    Richard Posner talks about these issues in a devastating takedown of the roberts court decision:
    In Defense of Looseness.

    For all the derogatory talk of a living constitution it is funny (and dispiriting coming from those who claim their highest political purpose is to uphold the original meaning of text) to see a clumsily worded amendment dealing with militias to now be used to strike down gun control laws(a patent absurdity in the 1790s that no one would consider).

    If you want to argue against forms of gun control you should have actual carefully reasoned arguments against it and not impart meanings into the constitution to foreclosure vigorous political discussion.

    •  You are completely mistaken (4+ / 0-)

      as a matter of history.  

      The principle of a constitutionally pre-existing individual right to carry arms was certainly explicitly addressed more than 100 year prior to the 1970s as gerrilea points out upthread.

      The one permanent emotion of the inferior man is fear - fear of the unknown, the complex, the inexplicable. What he wants above everything else is safety. H.L. Mencken

      by ancblu on Wed Dec 26, 2012 at 01:13:38 AM PST

      [ Parent ]

  •  2d Amendment built on historical precedent (8+ / 0-)

    For more information, see Joyce Lee Malcolm's book, "To Keep and Bear Arms".

  •  This. . . (39+ / 0-)
    John Adams, in 1787, had authored A Defence of the Constitutions of Government of the United States, in which he wrote that a general availability of arms would "demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man - it is a dissolution of government."

    . . . is an incredibly powerful argument against gun "rights."  I'm going to forward it to everyone on my email address book.  Thanks for calling attention to it!

    •  DocChap, i havn't read you diary yet, i will. (10+ / 0-)

      when i read that paragraph i inadvertantly said 'WHOA!'

      'so that liberty can be enjoyed by no man', and here we are.

      America...where we fight over who can be allowed to have a marriage license but don't give a shit about who can have an assault rifle.

      by dear occupant on Tue Dec 25, 2012 at 03:53:09 PM PST

      [ Parent ]

    •  Um ... the full Adams quote? (26+ / 0-)
      It must be made a sacred maxim, that the militia obey the executive power, which represents the whole people in the execution of laws. To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defence, or by partial orders of towns, counties, or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man-it is a dissolution of the government.
      •  True (3+ / 0-)
        Recommended by:
        mkor7, Laconic Lib, Marjmar

        But that statement still points to the member of the militia that has the use of individual discretion.  Not every civilian that wants to carry a musket though at the time anyone from 16-40 was suppose to serve in the local militia at times of war.

        If at first you don't succeed, vote Teapublicans out and try again. You have to be persistent if you want anything out of life.

        by Final Frame on Tue Dec 25, 2012 at 07:41:15 PM PST

        [ Parent ]

      •  Adam, no... citing in context is unimportant. (9+ / 0-)

        Obviously John Adams meant:

        It must be made a sacred maxim, that arms in the hands of citizens, used  in private self-defence, is to demolish the government.
        Those other words were misquotes.  Typographer errors.
        Fanciful additions.  I've edited for "clarity".

        And who the hell names his kid for some Massachusetts bay town anyway?  An obvious nutter, that's who.

    •  Nice Diary on your part. (4+ / 0-)
      Recommended by:
      bob152, adrianrf, Sandino, Adam B

      However, given that this discussion is based on the antiquated and entrenched slave-owner-benefiting US constitution -- the oldest and most outdated in the world -- such conversations merely grind over and over again that which is already dust.

      All serious nations have modern constitutions. The structural flaws in the document written in the 1700s are hardly worth discussing, because they have no context in the 21st century.

      "Constitutional entrenchment" refers to situations in which a constitution or provision thereof cannot be amended or repealed at all, or cannot be amended or repealed except with some sort of super-majority. Such entrenchment raises issues of generational sovereignty insofar as the constitution in question, enacted by an earlier generation, operates to limit the political freedom of later generations.

      The United States Constitution includes several entrenching provisions. The most obvious is Article V, which prevents amendment of the Constitution without approval of 2/3 majorities of both houses of Congress and agreement from 3/4 of the States. Because of this provision, whenever a conflict over the fundamental law of the U.S. arises between the enacted preferences of the 1788 framers and a present majority of the United States public (that cannot muster the required supermajorities), the preferences of the framers control.

      The legitimacy of constitutional entrenchment was most famously challenged by Thomas Jefferson in a series of letters, the best known of which is his September 6, 1789 letter to James Madison. In the course of exploring a wide range of generational sovereignty issues, Jefferson asserted:

      "We seem not to have perceived that, by the law of nature, one generation is to another as one independent nation to another."

      "[N]o society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation."

      "Every constitution, then, and every law, naturally expires at the tend of 19 years [the period by which Jefferson computed that the majority of the voting public is replaced, by the natural processes of birth and death, with a new majority]. If it be enforced longer, it is an act of force and not of right.”
  •  You've convinced me (1+ / 0-)
    Recommended by:
    Cartoon Peril

    Since, as foreseen, Congress and the states have entirely neglected the establishment and provisioning of these militias, it was wise of the Founders to make certain that there was recognition of an individual right to maintain one's own arms.

    It is odd, though, that if all that was needed was a militia and constitutional authority to establish one, that the 2nd Amendment then declared a right to keep and bear these arms. And even if keeping and bearing refers to some military use (is this an originalist argument?), the same arms can be both for  hunting and for military use. Possibly this is a subtle argument in favor of so-called assault weapons?

    •  The milita did not use hunting arms. Smooth bore (2+ / 0-)
      Recommended by:
      Nebraskablue, penguins4peace

      muskets were standard arms of armies or militas due to their relatively rapid reload time.  They were not accurate enough for hunting.  Hunting arms were rifles, for deer and other larger game, and shotguns for small game and birds.  Rifles were took too long to reload for general infantry other than specialized sharpshooter units.  This did not change until Minie' in the 1840s.  Long after adoption of the second amendment.

  •  Navy Vet Terp, thank you. (10+ / 0-)

    this diary is the most logical, objective and comprehensive
    analysis i've seen yet on the 2nd amendment.

    you've done us all a goodservice.

    t'pd, rec'd and h'tlstd for future reference.

    America...where we fight over who can be allowed to have a marriage license but don't give a shit about who can have an assault rifle.

    by dear occupant on Tue Dec 25, 2012 at 03:45:55 PM PST

  •  This is such a wonderful explanation, even (8+ / 0-)

    my brain now understands what my gut always told me.

    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.
    So, if it was the intent to allow for individual ownership, it would say, "the right of individuals." "The people" is meant to be plural, as a group.

    Sorry, you do better than I at explaining. But that's what I finally understand.

    Thank you for doing the research to present this so well.

    •  Sorry, but the rest of the Bill of Rights uses the (25+ / 0-)

      same term repeatedly to refer to what most people would call individual rights, not collective ones:
      The 1st Amendment-

      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
      The 4th Amendment-
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
      The 9th Amendment-
      The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
      And finally the 10th Amendment clearly distinguishes between "the States" and "the people" as separate entities, with rights reserved by the people being distinct from those reserved to "the States":
      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.
          Many Constitutional scholars have held that the 2nd Amendment obviously referred to an individual right. The distinguishing feature has always seemed to be whether the scholar came into the discussion as a supporter of gun rights or an opponent; then arguments are cherry-picked to support the scholar's preconceived notions. I would point out that, although Justice Steven's dissent in Heller argues the "collective right" interpretation, Justice Breyer's separate dissent argues from the premise that an individual right might exist, but that the District of Columbia's laws didn't violate such an individual right.

      -7.25, -6.26

      We are men of action; lies do not become us.

      by ER Doc on Tue Dec 25, 2012 at 04:29:40 PM PST

      [ Parent ]

      •  Do you have any examples of so-called (2+ / 0-)
        Recommended by:
        caul, Sandino

        constitutional scholars arguing for the "individual right" "interpretation" of the Second Amendment before the NRA started pushing this idea in the 1970s?

        •  Sure. How about the 1830s? (19+ / 0-)

          As Justice Scalia quoted in Heller:

          Joseph Story published his famous Commentaries on the Constitution of the United States in 1833. Justice Stevens suggests that “[t]here is not so much as a whisper” in Story’s explanation of the Second Amendment that favors the individual-rights view. Post, at 34. That is wrong. Story explained that the English Bill of Rights had also included a “right to bear arms,” a right that, as we have discussed, had nothing to do with militia service. 3 Story §1858. He then equated the English right with the Second Amendment :


          “§1891. A similar provision [to the Second Amendment ] in favour of protestants (for to them it is confined) is to be found in the bill of rights of 1688, it being declared, ‘that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law.’ But under various pretences the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege.” (Footnotes omitted.)
             This comparison to the Declaration of Right would not make sense if the Second Amendment right was the right to use a gun in a militia, which was plainly not what the English right protected. As the Tennessee Supreme Court recognized 38 years after Story wrote his Commentaries, “[t]he passage from Story, shows clearly that this right was intended … 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.” Andrews v. State, 50 Tenn. 165, 183 (1871). Story’s Commentaries also cite as support Tucker and Rawle, both of whom clearly viewed the right as unconnected to militia service. See 3 Story §1890, n. 2; §1891, n. 3. In addition, in a shorter 1840 work Story wrote: “One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.” A Familiar Exposition of the Constitution of the United States §450 (reprinted in 1986).

              Antislavery advocates routinely invoked the right to bear arms for self-defense. Joel Tiffany, for example, citing Blackstone’s description of the right, wrote that “the right to keep and bear arms, also implies the right to use them if necessary in self defence; without this right to use the guaranty would have hardly been worth the paper it consumed.” A Treatise on the Unconstitutionality of American Slavery 117–118 (1849); see also L. Spooner, The Unconstitutionality of Slavery 116 (1845) (right enables “personal defence”). In his famous Senate speech about the 1856 “Bleeding Kansas” conflict, Charles Sumner proclaimed:

          “The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red man and the beast of the forest. Never was this efficient weapon more needed in just self-defence, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn guarantee, embodied in the Amendments to the Constitution, that ‘the right of the people to keep and bear arms shall not be infringed,’ the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, that they should be disarmed—of course, that the fanatics of Slavery, his allies and constituents, may meet no impediment.” The Crime Against Kansas, May 19–20, 1856, in American Speeches: Political Oratory from the Revolution to the Civil War 553, 606–607 (2006).
          •  I asked for constitutional scholars, not hacks (2+ / 0-)
            Recommended by:
            Marjmar, cybersaur

            like Scalia. Scalia's arguments about this have been rebutted many times.

          •  But can you talk about a one-sentence Amendment... (6+ / 0-)

            ...without putting any weight on its first clause?

            Freedom is the freedom to say two plus two make four.  If that is granted, all else follows. -- George Orwell, 1984. Now on Twitter.

            by kindler on Tue Dec 25, 2012 at 06:25:45 PM PST

            [ Parent ]

            •  the prefatory clause is weird (12+ / 0-)

              And there's nothing like it in the rest of the Bill of Rights, but lots of contemporaneous state constitutions had such clauses:

              Rhode Island's 1842 constitution, its first, provides
              The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . .
              ...The 1784 New Hampshire Constitution says
              In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . .
              The 1780 Massachusetts Constitution -- followed closely by the 1784 New Hampshire Constitution and the 1786 Vermont Constitution -- says
              The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.
              Plenty more in that article.
              •  Such prefatory clauses (3+ / 0-)
                Recommended by:
                Robobagpiper, ER Doc, Cedwyn

                appear to be a stylistic form of the period to contextualize a (n.b. not "the," but "a") state or federal interest that serves as a positive rational for the limitation on state or federal power to restrict the enumerated and constitutionally pre-existing private right.

                The one permanent emotion of the inferior man is fear - fear of the unknown, the complex, the inexplicable. What he wants above everything else is safety. H.L. Mencken

                by ancblu on Wed Dec 26, 2012 at 02:01:18 AM PST

                [ Parent ]

            •  You can if the 2d part says (8+ / 0-)

              .....the right of the people to keep and bear arms shall not be infringed.Why emphasize the part without the verb and the subject?  

              Anybody reading the amendment with command of basic English knows the sentence is intended to stop the infringement of the people's right to bear arms. (read the words)
              Only the most complete sophistry pretends it sets up a militia.

              Happy just to be alive

              by exlrrp on Tue Dec 25, 2012 at 07:35:38 PM PST

              [ Parent ]

              •  I agree with your essential interpretation, (1+ / 0-)
                Recommended by:

                but the prefatory subordinate clause is not superfluous and it's meaning or significance must be discerned -- and this is not a readily self-evident undertaking.

                The one permanent emotion of the inferior man is fear - fear of the unknown, the complex, the inexplicable. What he wants above everything else is safety. H.L. Mencken

                by ancblu on Wed Dec 26, 2012 at 02:05:41 AM PST

                [ Parent ]

                •  doesn't change the meaning of the sentence (7+ / 0-)

                  You could say anything you want in that prefatory clause from : "Because its necessarhy for self defense" Up to and including 'Because we think its really cool"  and it would not change the intention and meaning of the sentence one  iota.
                  Its sophistry to say it creates a militia, or allows guns only through a militia, thats not how the sentence is structured.

                  There's an amendment process to change  the Constitution and people can do it. America is just waiting for the leadership to change it----and finding out its just not there.

                  Happy just to be alive

                  by exlrrp on Wed Dec 26, 2012 at 04:48:51 AM PST

                  [ Parent ]

                  •  The diarist is right about one thing for sure (2+ / 0-)
                    Recommended by:
                    PavePusher, ER Doc

                    The 2d amendment is NOT about gun ownership, its about prohibiting infringement of the right of the people to keep and bear arms.
                    Thats what the words say, at least the part with the verb and the subject

                    Happy just to be alive

                    by exlrrp on Wed Dec 26, 2012 at 05:37:25 AM PST

                    [ Parent ]

                  •  It iss grammatic sophistry (0+ / 0-)

                    to simply discard the prefatory clause in its entirety!

                    The phrase a well regulated militia being necessary to the security of a free State is known in grammar as an absolute construction.

                    Quirk et al. (1985) specify that “ABSOLUTE clauses [are] so termed because they are not explicitly bound to the matrix clause [i.e., the main clause] syntactically,” adding, “the logical connection between the clauses is primarily one of reason” and “logical relationships . . . are generally clear from the context. . . . In –ing clauses, verbs used dynamically tend to suggest a temporal link, and stative verbs a causal link”:


                    Javelin, Jockey details, all posts, discontinue

                    by jam on Wed Dec 26, 2012 at 07:11:54 AM PST

                    [ Parent ]

                    •  one gun control proponent's interpretation (0+ / 0-)

                      not compelling.  of much more relevance are the writings of the founders themselves; those clarify their meaning and intent like nothing else can.

                      Please don't dominate the rap, Jack, if you got nothin' new to say - Grateful Dead

                      by Cedwyn on Wed Dec 26, 2012 at 08:55:28 AM PST

                      [ Parent ]

                      •  I was more trying to point out (0+ / 0-)

                        that it is absurd to simply discard the prefatory clause because it is inconvenient and then to couch it as grammatical is even more absurd.

                        I'm pretty much agnostic on RKBA.

                        Javelin, Jockey details, all posts, discontinue

                        by jam on Wed Dec 26, 2012 at 12:11:10 PM PST

                        [ Parent ]

                      •  I'm not good at reading between the lines (0+ / 0-)

                        I'm Not really trained in all the esoterics of George and John and Thomas and Benjamin and the other John. So I don't try and read between the lines.
                         I just read  the lines....and understand what they mean, because theyre in basic Engish.

                        Its not just my interpretation but also the SCOTUS, the POTUS, Most of the Congress and America too. Its rare to see them all in such unanimity. I didn't ask the founders because theyve been ---wait for it-- dead too long. they are so 18th century and I'm trying to live in the time of the problem.
                        Its an individual right, 2d in a list of individual rights---that IS what the Bill of Rights is. NO scratch  that, its also corporate rights too now, I guess.
                        Doesn't matter a bit what the founders may have written in addition to this, if its not in the contract, its just not.
                        I mean the constitution is signed by many on behalf of us all---what Adams and Jefferson et all my have written before or after  is not. An unsigned contract isn't the paper it isn't written, same as unwritten things in the Constitution, even tho they may appear elsewhere
                        the Constitution is our Written Agrement, not all the founder's footnotes.

                        And they don't take a Founding Father, a Constitutional scholar or 18th century language expert to understand either. The Founding Fathers were well aware of the literacy level and level of understanding of their compatriots. They knew they were writing something Everyman could read and understand or have read to him and still understand. The Constitution was written to be understood by the average man at the time, who was not at all was wordly as we are now. The Constitution was not written for constitutional scholars, it was written for Americans, not all of whm were rocket scientists, then or now.

                        What the founders had to say is irrelevant to how any decision will be made. The justices will not consider legal precedent and wisely decide---they will go into it withtheir own biases, write their decisions and justify them from a stack 19' high of arcane legal decision, from which, like the Bible, you can pover anything.
                        I can't believe people spend all this time parsing and re parsing this sentence. My view is the popular one, the status quo, the one the guy you voted for has. Youre never going to change that no matter how many esoteric, arcane justifications you can come up with---and they all may be technically right!!

                        Our SCOTUS is a committee of putzes and nebbishes. there's the mean ones and the blah ones and the blah ones are on our side and the mean ones run things.

                        Don't expect much from the SCOTUS, The POTUS or Congress right now, there's not the leadership to get anything significant done. If they go off the fiscal cliff, a self imposed deadline, you will know that X 1000

                        Happy just to be alive

                        by exlrrp on Wed Dec 26, 2012 at 02:19:53 PM PST

                        [ Parent ]

            •  Can you make that clause say what you want it to? (2+ / 0-)
              Recommended by:
              ER Doc, FrankRose

              Use any rule of English grammar you care to.

          •  I would not cite a "right" of Protestants to arm (2+ / 0-)
            Recommended by:
            Alexandre, Sharon Wraight

            in 1688-89 to oust a Catholic king, James II, in support of the proposition that the Second Amendment guarantees an individual right to own firearms regardless of their utility for hunting and, for that, self-defense.   Fortunately Britain is beyond these wars of religion, and the Constitution's prohibition of a religious test to hold office, and the first amendment's guarantee of freedom of religion and the prohibition of the establishment of religion, was based on the founders' revulsion against the British religious wars of the 17th Century.  If you believe that the Second Amendment provides for such an individual right, then surely Catholics, Jews, Hindus, Muslims, and Atheists must equally enjoy or suffer from such a right.  Hopefully, even Scalia believes that as well.

            "We have always known that heedless self-interest was bad morals, now we know that it is bad economics." Franklin Delano Roosevelt, Jan. 20, 1937

            by Navy Vet Terp on Tue Dec 25, 2012 at 06:39:13 PM PST

            [ Parent ]

        •  I'm not much of a legal scholar, but, (7+ / 0-)

          quoting from a portion of Scalia's majority opinion in Heller:

          2. Pre-Civil War Case Law

              The 19th-century cases that interpreted the Second Amendment universally support an individual right unconnected to militia service. In Houston v. Moore, 5 Wheat. 1, 24 (1820), this Court held that States have concurrent power over the militia, at least where not pre-empted by Congress. Agreeing in dissent that States could “organize, discipline, and arm” the militia in the absence of conflicting federal regulation, Justice Story said that the Second Amendment “may not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested.” Id., at 51–53. Of course, if the Amendment simply “protect[ed] the right of the people of each of the several States to maintain a well-regulated militia,” post, at 1 (Stevens, J., dissenting), it would have enormous and obvious bearing on the point. But the Court and Story derived the States’ power over the militia from the nonexclusive nature of federal power, not from the Second Amendment , whose preamble merely “confirms and illustrates” the importance of the militia. Even clearer was Justice Baldwin. In the famous fugitive-slave case of Johnson v. Tompkins, 13 F. Cas. 840, 850, 852 (CC Pa. 1833), Baldwin, sitting as a circuit judge, cited both the Second Amendment and the Pennsylvania analogue for his conclusion that a citizen has “a right to carry arms in defence of his property or person, and to use them, if either were assailed with such force, numbers or violence as made it necessary for the protection or safety of either.”

              Many early 19th-century state cases indicated that the Second Amendment right to bear arms was an individual right unconnected to militia service, though subject to certain restrictions. A Virginia case in 1824 holding that the Constitution did not extend to free blacks explained that “numerous restrictions imposed on [blacks] in our Statute Book, many of which are inconsistent with the letter and spirit of the Constitution, both of this State and of the United States as respects the free whites, demonstrate, that, here, those instruments have not been considered to extend equally to both classes of our population. We will only instance the restriction upon the migration of free blacks into this State, and upon their right to bear arms.” Aldridge v. Commonwealth, 2 Va. Cas. 447, 449 (Gen. Ct.). The claim was obviously not that blacks were prevented from carrying guns in the militia.21 See also Waters v. State, 1Gill 302, 309 (Md. 1843) (because free blacks were treated as a “dangerous population,” “laws have been passed to prevent their migration into this State; to make it unlawful for them to bear arms; to guard even their religious assemblages with peculiar watchfulness”). An 1829 decision by the Supreme Court of Michigan said: “The constitution of the United States also grants to the citizen the right to keep and bear arms. But the grant of this privilege cannot be construed into the right in him who keeps a gun to destroy his neighbor. No rights are intended to be granted by the constitution for an unlawful or unjustifiable purpose.” United States v. Sheldon, in 5 Transactions of the Supreme Court of the Territory of Michigan 337, 346 (W. Blume ed. 1940) (hereinafter Blume). It is not possible to read this as discussing anything other than an individual right unconnected to militia service. If it did have to do with militia service, the limitation upon it would not be any “unlawful or unjustifiable purpose,” but any nonmilitary purpose whatsoever.

              In Nunn v. State, 1Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right:

          “The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!”

              Likewise, in State v. Chandler, 5La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”

              Those who believe that the Second Amendment preserves only a militia-centered right place great reliance on the Tennessee Supreme Court’s 1840 decision in Aymette v. State, 21 Tenn. 154. The case does not stand for that broad proposition; in fact, the case does not mention the word “militia” at all, except in its quoting of the Second Amendment . Aymette held that the state constitutional guarantee of the right to “bear” arms did not prohibit the banning of concealed weapons. The opinion first recognized that both the state right and the federal right were descendents of the 1689 English right, but (erroneously, and contrary to virtually all other authorities) read that right to refer only to “protect[ion of] the public liberty” and “keep[ing] in awe those in power,” id., at 158. The court then adopted a sort of middle position, whereby citizens were permitted to carry arms openly, unconnected with any service in a formal militia, but were given the right to use them only for the military purpose of banding together to oppose tyranny. This odd reading of the right is, to be sure, not the one we adopt—but it is not petitioners’ reading either. More importantly, seven years earlier the Tennessee Supreme Court had treated the state constitutional provision as conferring a right “of all the free citizens of the State to keep and bear arms for their defence,” Simpson, 5 Yer., at 360; and 21 years later the court held that the “keep” portion of the state constitutional right included the right to personal self-defense: “[T]he right to keep arms involves, necessarily, the right to use such arms for all the ordinary purposes, and in all the ordinary modes usual in the country, and to which arms are adapted, limited by the duties of a good citizen in times of peace.” Andrews, 50 Tenn., at 178; see also ibid. (equating state provision with Second Amendment ).

          -7.25, -6.26

          We are men of action; lies do not become us.

          by ER Doc on Tue Dec 25, 2012 at 05:51:41 PM PST

          [ Parent ]

      •  ER Doc, while I agree... (5+ / 0-)

        I've also watched Law and Order and "The People vs. (defendant) obviously refers to the State of New York or the Manhattan D.A..
        Not ever to the unwashed masses, the yeomanry of citizenship, secure in their possessions, petitioning grievances or retaining any powers over the government.

        Who needs the SCOTUS when I have A&E Television®?

        The State is the People.  

        The Ninth Amendment doesn't apply in a Living Constitution, and the Tenth Amendment obviously included a typographical error.  

      •  Like It Or Not It's In The "Bill Of Rights" (5+ / 0-)

        It's glaring obvious that it's in the Bill Of Rights, along with the other things we call "rights."

        There’s always free cheddar in a mousetrap, baby

        by bernardpliers on Tue Dec 25, 2012 at 09:03:52 PM PST

        [ Parent ]

  •  Wonderful diary. (8+ / 0-)

    Makes perfect sense. Today's usual interpretation makes the founding fathers out to be unable to anticipate future needs. That flies in the face of most everything else that they did. They did not get everything right, but the fact that the Constitution has held up for 2.5 centuries, they left a lot of things able to withstand the test of time. So too the second amendmend, if properly interpreted -- serious military style weapons kept in public stores for if and when they are needed to defend against military attack.  

    So, gun affectionados, you get one or a small number of single shot hunting rifles and are welcome to them if you handle them properly -- keeping them under lock an key with the ammunition locked up separately.

    That view of it may have some considerable opposition. But it is not way off the rules in a lot of nations around the world. And people hunt there and think that the rules are only reasonable.

    We have only just begun and none too soon.

    by global citizen on Tue Dec 25, 2012 at 04:08:03 PM PST

  •  Overuled. (17+ / 0-)

    Unfortunately, you are wrong about the Supreme Court.  Their opinions do "make it so."  They are the final authority on questions of the meaning of the Constitution, and your opinion, no matter how well reasoned, doesn't outweigh theirs - not even in absurd decisions like Bush v Gore.

    There are two ways to overturn a decision we don't like.  Either bring a new case, preferably after Obama appoints a new Justice or two; or amend the Constitution.

    Conservatives are furious about Wade v Roe, but all their fury and all their gerrymandering mean nothing - and they know it - unless they can get a new decision they like or a Constitutional amendment.  Likewise, we have only a few ways to challenge the SCOTUS.

    Early to rise and early to bed Makes a man healthy, wealthy, and dead. --Not Benjamin Franklin

    by Boundegar on Tue Dec 25, 2012 at 04:11:40 PM PST

    •  Shrug. Then the next SCt will make it so. (6+ / 0-)

      The last four years have seen the overturning of a hundred years' precedent on 5-4 decisions. The Scalia holdings are literally unworkable.   And it's wrong.  They will be overturned.

      One piece of free advice to the GOP: Drop the culture wars, explicitly.

      by Inland on Tue Dec 25, 2012 at 04:30:10 PM PST

      [ Parent ]

    •  Yes. The Supreme Court is the final authority. (9+ / 0-)

      (for now). We should be glad they didn't go even farther than they did in Heller and McDonald. According to their reasoning (however faulty it is) they ruled that people have a right to own and keep a handgun in their home for self defense. That still leaves a lot of room for reasonable gun control involving types of guns, magazine size, ammunition, who can be denied the right to own (felons, minors, etc.) and where people can carry guns outside of the home. Plus registration requirements, waiting periods, background check requirements, and more.

      •  No, we are the final authority if we choose to be. (1+ / 0-)
        Recommended by:

        We just need someone brave enough to lead us.  We need to repeal the 2nd amendment so that the Court has nothing to rely on.  The 2nd amendment is no longer relevant and in fact is damaging the fabric of our society.  If it's repeal is that we have to do to restore sanity and safety then so be it.

    •  If they said the sun was cold and rain is dry ? (1+ / 0-)
      Recommended by:
      Sophie Amrain

      "Drop the name-calling." Meteor Blades 2/4/11

      by indycam on Tue Dec 25, 2012 at 04:47:52 PM PST

      [ Parent ]

    •  Examples (3+ / 0-)
      Recommended by:
      DeadHead, caul, mkor7

      Plessy v. Ferguson (1896), overruled by Brown v. Board of Education (1954).  

      And less well known, Minersville School District v. Gobitis (1940), holding that the state school board could require students to say the Pledge of Allegience, even over religious objections, overruled by West Virginia v. Barnette (1943).

      And also less well known, Olmstead v. United States (1928), holding that federal agents could wiretap personal phone conversations without a search warrant, as long as they did not invade the person's home to do so, overruled by Katz v. United States (1967).

      "We have always known that heedless self-interest was bad morals, now we know that it is bad economics." Franklin Delano Roosevelt, Jan. 20, 1937

      by Navy Vet Terp on Tue Dec 25, 2012 at 05:01:22 PM PST

      [ Parent ]

      •  It seems to me (1+ / 0-)
        Recommended by:
        ER Doc

        far more likely that Heller and McDonald would be eroded at the margin of what constitutes "reasonable regulation" rather than direct overturning of the essential constitutional precedent that recognizes a fundamental private right to keep and bear arms.

        This is the subsequent history of Roe v. Wade.

        Disturbing established precedent by later courts is a "big deal" for many reasons and it's a rather rare thing to do.

        The one permanent emotion of the inferior man is fear - fear of the unknown, the complex, the inexplicable. What he wants above everything else is safety. H.L. Mencken

        by ancblu on Wed Dec 26, 2012 at 02:22:08 AM PST

        [ Parent ]

  •  Excellent although I think the absence of "own" (1+ / 0-)
    Recommended by:

    ends the discussion.  "Own" and the rights that accrue to an owner of chattel were well known; and if the framers had meant to provide a right of ownership they would have said so.

    One piece of free advice to the GOP: Drop the culture wars, explicitly.

    by Inland on Tue Dec 25, 2012 at 04:16:09 PM PST

    •  Although they delicately avoided the word slavery (5+ / 0-)
      Recommended by:
      caul, poco, Cartoon Peril, mkor7, rcbowman

      Or the word "own" in regard to slavery.  The closest they came was the fugitive slave clause, Article IV section 2 clause 3:  

      No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.
      All told, a rather artful and benign way of saying:  "The slave owners can get their runaway property, that is, slaves, back."  And this language was deliberate so that northern delegates to the Constitutional convention hostile to slavery could hold their noses, accept these compromises, and sign it.

      "We have always known that heedless self-interest was bad morals, now we know that it is bad economics." Franklin Delano Roosevelt, Jan. 20, 1937

      by Navy Vet Terp on Tue Dec 25, 2012 at 04:51:03 PM PST

      [ Parent ]

      •  You also have indentured servants (2+ / 0-)
        Recommended by:
        oldpunk, ER Doc

        Fleeing one's debt to an employer was also covered by that law:

        In the 17th century, nearly two-thirds of settlers to the New World from the British Isles came as indentured servants. Given the high death rate, many servants did not live to the end of their terms.[6]  


         Indentured servants were a separate category from bound apprentices. The latter were American-born children, usually orphans or from an impoverished family who could not care for them. They were under the control of courts and were bound out to work as an apprentice until a certain age. Two famous bound apprentices were Benjamin Franklin who illegally fled his apprenticeship to his brother, and Andrew Johnson, who later became president.[9]

      •  I think indentured servants were included; (0+ / 0-)

        moreover, whether a slave was " property" and "owned" was a conceptual problem. Its more of a status, like being a wife or a child, than being a property, in the elegant minds justifying slavery.

        One piece of free advice to the GOP: Drop the culture wars, explicitly.

        by Inland on Wed Dec 26, 2012 at 05:08:56 AM PST

        [ Parent ]

        •  Indentured Servants in Article I section 2 (0+ / 0-)
          Representatives and direct taxes shall be apportioned among the several states which may be included in this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons.  
          "Those bound to service for a term of years" were indentured servants.  "Three-fifths of all other persons" were slaves.

          "We have always known that heedless self-interest was bad morals, now we know that it is bad economics." Franklin Delano Roosevelt, Jan. 20, 1937

          by Navy Vet Terp on Wed Dec 26, 2012 at 05:11:20 PM PST

          [ Parent ]

      •  No more than possess or store: (7+ / 0-)

        many militias stored their arms at armouries. It's questionable that an individual can keep arms in a private capacity.

        One piece of free advice to the GOP: Drop the culture wars, explicitly.

        by Inland on Tue Dec 25, 2012 at 05:00:44 PM PST

        [ Parent ]

        •  Agreed (1+ / 0-)
          Recommended by:

          After reading above on both sides of the issue this was what I thought "keep" came down to.  People also have to think further back.  Through history villages and towns would have armories that people would go to in order to get armed.

          If at first you don't succeed, vote Teapublicans out and try again. You have to be persistent if you want anything out of life.

          by Final Frame on Tue Dec 25, 2012 at 07:48:43 PM PST

          [ Parent ]

        • (4+ / 0-)
          Recommended by:
          ancblu, Robobagpiper, ER Doc, PavePusher

          Who provides what, and how many bullets shall his gun take?

          That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.
          •  you are citing a statute. (1+ / 0-)
            Recommended by:

            The statute doesnt create a constitutional right.  Do we have to keep going over the basics every time there is a mass murder?

            One piece of free advice to the GOP: Drop the culture wars, explicitly.

            by Inland on Wed Dec 26, 2012 at 05:03:36 AM PST

            [ Parent ]

            •  The Gun Control Act of 1968 DID NOT OUTLAW (1+ / 0-)
              Recommended by:
              ER Doc

              any "saturday night special" handgun by brand name, but empowered the Director of (the BATFE) to approve the "suitability for sporting purposes" of firearms.

              You would not argue for the return of saturday night special, based on it being "just a statute".

              The enabling legislation for the Militia Act was the Second Amendment.

              •  "enabling act"? That is as wrong as it comes. (0+ / 0-)

                You're saying the second gives a power to the Feds to make people carry arms?  Well, whatever.  A statute can be amended by a simple act of congress.  

                One piece of free advice to the GOP: Drop the culture wars, explicitly.

                by Inland on Wed Dec 26, 2012 at 01:52:15 PM PST

                [ Parent ]

  •  Thank you from the bottom of my (6+ / 0-)

    heart for this diary.  You have given me the ammo to fight the NRA shill on the Newtown Patch.

  •  I just realized (7+ / 0-)

    It doesn't say to whom the arms belong.  

    If it's the intent of the 2nd amendment to provide a structure for a militia, could one argue that the arms used for the militia could belong to the state?


    by otto on Tue Dec 25, 2012 at 04:27:34 PM PST

    •  They often did. (7+ / 0-)

      Revere's midnight ride was to warn militias of the brit's intent to seize armories.

      One piece of free advice to the GOP: Drop the culture wars, explicitly.

      by Inland on Tue Dec 25, 2012 at 04:34:35 PM PST

      [ Parent ]

      •  where CANNON and Powder was stored. (5+ / 0-)

        partial information leads to factual error.

        Otto, no one other than ships owners, possessed cannon in-private.
        Those ships were often deemed pirates by the recipients of cannon fire, or privateers by the governments giving letters of marque.

        Fort William & Mary

        Note no mention of: "the Colonials obtained arms from their Armories..."

        •  I'm not asking if they came from armories (0+ / 0-)

          I'm asking if "owning" a gun is listed as a right anywhere.  

          It says specifically "keep." It doesn't say "own," or"buy."

          If you had a militia which was outfitted by a state, then in a time of possible conflict, you would keep your firearms in the home.  

          So it would make sense that there wouldn't be a need to go to an armory.  


          by otto on Wed Dec 26, 2012 at 06:05:30 AM PST

          [ Parent ]

          •  Otto, as replied to Inland near this comment: (2+ / 0-)
            Recommended by:
            PavePusher, ER Doc

            the Militia Act of 1792 (concurrent to the Second Amendment's adoption) specified that each militiaman should, within 6 months of enrollment, provide himself with...

            thus lessening the fiscal burden upon a nascent Nation, or the respective States.

            Compare this to Switzerland, where you're issued a firearm for your active service interval, and sent home with it.
            That firearm is still "State Property" and can be regulated as the State* sees fit.  
            Upon retirement from active-reserve militia duty, each Swiss soldier can purchase the issued weapon for a nominal fee.

            *State as in Nation-State, not the State of New Jersey, which in Switzerland are called Canton.

            •  so they had to get their firearm? (0+ / 0-)

              That doesn't really mean anything other than that they had to procure the firearm, right?  

              Your Swiss example is exactly what I was thinking of. The Swiss are moving away from keeping those firearms in the home, and they are heavily regulated.

              I guess I would point out that the military industrial complex didn't exist in the same way it does now, and that it may have been difficult to procure enough firearms in order to outfit an entire militia.  

              So to order the inhabitiants of a newly formed country to keep a firearm could be seen simply as a function of residency in a new nation.  

              It's not an argument that I've ever thought of before, so I'm genuinely curious about it.


              by otto on Wed Dec 26, 2012 at 06:38:26 AM PST

              [ Parent ]

              •  The Swiss did hold a referendum (0+ / 0-)

                however, the status remains quo.

                Hanging is still the #1 cause of suicide in Switzerland, and like firearms, is seldom a recoverable attempt.

                The Swiss are indoctrinated to an understanding of the penalties for misuse of your militia weapon:  Military Trial, Military Prison.
                In 1992, my friends in greater Zurich put it this way:

                "Your family should hold a funeral while you can still attend.  The next time they see you, you will be dead.  

                No one who uses his military-issue gun for a murder or robbery comes out of prison.  
                Shooting your crippled cow will be viewed as improperly expending issued ammunition, and you will be fined 5 Swiss Francs per bullet."

    •  So (5+ / 0-)

      The Bill of Rights gives "the people" the right to keep and bear someone else's arms? And that right shall not be infringed?

      ???????? Srsly?

      "The scientific nature of the ordinary man is to go on out and do the best you can." John Prine

      by high uintas on Tue Dec 25, 2012 at 07:23:13 PM PST

      [ Parent ]

      •  Yes (0+ / 0-)

        Why would you not take me seriously?  I'm genuinely curious.  

        There is no reason why a militia couldn't be outfitted by a state and the arms owned by the government.  

        We keep a lot of things in our homes that we don't own.

        For instance, you didn't own your home phone when service was provided by ma bell.  You rented it.  

        Why isn't that a valid question?


        by otto on Wed Dec 26, 2012 at 06:09:49 AM PST

        [ Parent ]

        •  I don't take you seriously (0+ / 0-)

          because using language doesn't trump actual life.

          Ya'll want to go back to the mindset of the original framers, I get that. So do I, but I also have to think about the realities of life at the time. A gun was more than just a part of a militia, it was life itself for anyone living even on the edge of established settlements. Let alone homesteaders who were pushing ever further into the land.

          Do you really believe that it was feasible to deny someone their "grocery cart" at a state's whim? Or that Mr. New American lovingly put the state's gun in the corner by the door and hung up the state's powder horn? It's beyond reason!

          Focusing in on the first part and ignore the part that instructs the government with words like "the right of the people SHALL not be infringed" begs belief, Otto.

          I'm not being oppositional here or snarky. I truly believe that this is Amendment 2 of the Bill of Rights, rights that were given to the people. Not the states.

          I believe that in order for the state to have at it's disposal a "well regulated militia" there was a need to have people who had weapons and knew how to care for and use them. Those people had their right to own weapons codified in the Bill of Rights.

          I also believe that the right to keep and bear arms was a given to them, the explanation of a potential need that states might have was merely an explanation of one potential reason.

          "The scientific nature of the ordinary man is to go on out and do the best you can." John Prine

          by high uintas on Wed Dec 26, 2012 at 09:21:43 AM PST

          [ Parent ]

      •  Why is that hard to believe? (0+ / 0-)

        It only seems strange if you are predisposed to a specific result of a right to own.  It is a lot more believable that the matter of ownership was left to states than the framers meaning "own" and using different words.

        One piece of free advice to the GOP: Drop the culture wars, explicitly.

        by Inland on Wed Dec 26, 2012 at 02:30:06 PM PST

        [ Parent ]

    •  That would mean that the intent of the 2nd (0+ / 0-)

      was to allow the USA government to arm itself.
      That is an absurdity.

      Those who would sacrifice liberty for security deserve neither.

      by FrankRose on Wed Dec 26, 2012 at 07:28:03 PM PST

      [ Parent ]

  •  some on this site (13+ / 0-)

    have even been trying to claim that the roberts court isn't extremist. there are no pretzels of logic too byzantine to justify the unjustifiable.

    The cold passion for truth hunts in no pack. -Robinson Jeffers

    by Laurence Lewis on Tue Dec 25, 2012 at 04:34:08 PM PST

  •  Thank you (14+ / 0-)
    The Gun Lobby's interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American People by special interest groups that I have ever seen in my lifetime.  The real purpose of the Second Amendment was to ensure that state armies - the militia - would be maintained for the defense of the state.  The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.

    Retired Chief Justice Warren Burger, "The Right to Bear Arms," Parade Magazine, January 14, 1990.

    When someone is impatient and says, "I haven't got all day," I always wonder, How can that be? How can you not have all day? George Carlin

    by msmacgyver on Tue Dec 25, 2012 at 04:36:25 PM PST

  •  Suggestions for further reading (5+ / 0-)

    Thanks for an excellent diary. As I'd commented on another thread, it's disturbing how many liberals accept the right's fantasy that the Second Amendment grants a right to individuals.

    There is a New Yorker blog post that complements yours. That in turn has links to a New Yorker article by Jill Lepore and a law journal article by Reva Siegel which are both well worth reading. The latter is long, but may well be the canonical reference for the idea that District of Columbia v. Heller is a perfect example of judicial activism.

  •  Wow. Incredible that I never heard it before. (2+ / 0-)
    Recommended by:
    Laconic Lib, rcbowman

    But I guess I'm not alone.

    People, not corporations. Democracy, not totalitarian capitalism. Fuck the NRA.

    by democracy is coming on Tue Dec 25, 2012 at 04:55:36 PM PST

  •  Excellent and clear (2+ / 0-)
    Recommended by:
    blueoasis, Navy Vet Terp

    to this non-lawyer.

    "The only thing we have to fear is fear itself."........ "The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little." (yeah, same guy.)

    by sidnora on Tue Dec 25, 2012 at 05:01:48 PM PST

  •  WTF! It's called the Bill of Rights! (21+ / 0-)

    In the ratification debate, Anti-Federalists opposed to the Constitution, complained that the new system threatened liberties, and suggested that if the delegates had truly cared about protecting individual rights, they would have included provisions that accomplished that.  With ratification in serious doubt, Federalists announced a willingness to take up the matter of  a series of amendments, to be called the Bill of Rights, soon after ratification and the First Congress  comes into session.
    "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage other rights retained by the people."

    "The United States is a nation of laws: badly written and randomly enforced." -Zappa My Site

    by meagert on Tue Dec 25, 2012 at 05:03:10 PM PST

  •  That's what I grew up understanding (6+ / 0-)

    Only ignorant "gun nut" types thought the Second Amendment meant that we couldn't outlaw cheap hand guns, or anything else related to guns.

    Never thought those lowbrow nuts would ever actually be appointed, let alone come to dominate, the US Supreme Court.

    Show what can happen when you appoint morons to the Supreme Court.

  •  Wow ditto! (1+ / 0-)
    Recommended by:
    Navy Vet Terp

    This is an excellent diary, and a powerful argument that shows that the Supreme Court is probably the most important reason for voting in this nation--not by any circumstances are they apolitical!

  •  so you think (4+ / 0-)

    that the second amendment was really intended to reverse the prohibition within the constitution itself on states keeping troops in peacetime without the consent of Congress?  Wouldn't it have been easier to just say as much?

    States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

    by happymisanthropy on Tue Dec 25, 2012 at 06:08:50 PM PST

    •  "Troops" would mean regular soldiers (0+ / 0-)

      ...which, by definition, a well regulated militia would not be.

      States were meant to have the means to repel invasions, but be limited enough so that they couldn't launch them themselves. The Constitution establishes an order whereby only Congress is (in theory) invested wi the power and authority to commence hostilities with other countries, but both Congress and the states may defend against hostilities initiated by other countries against ours. The Second Amendment, even as construed here, is consistent with that view.

      "Speaking for myself only" - Armando

      by JR on Tue Dec 25, 2012 at 07:33:21 PM PST

      [ Parent ]

      •  No supreme court (2+ / 0-)
        Recommended by:
        Robobagpiper, high uintas

        has ever said that states can maintain militias not authorized by Congress, nor am I aware of any states that have done so.  The New York Guard, for example, is specifically authorized by Congress.  Does it not need to be?

        States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

        by happymisanthropy on Tue Dec 25, 2012 at 08:45:50 PM PST

        [ Parent ]

        •  No, it doesn't (0+ / 0-)

          The Guarantee Clause should permit it by itself, and even if it doesn't the Militia Clause reserves command authority to the states except when forces are federalized, and reserved their power to appoint officers, both acknowledging the existing practice and effectively limiting Congress's control.

          Further, Article I, s. 10, clause 3 implies that the states must be capable of having a coordinated response to situations where they are "actively invaded, or in such imminent danger as will not admit of delay." That passage cannot be read as anything but a recognition of authority to possess a defensive force absent congressional consent.

          And just to be clear, state/colonial militias predated Congress by decades: to remove the longstanding authority of states to keep irregular defense forces would have taken a more explicit constitutional provision, directly referencing militia forces. Indeed, the first federal Militia Act was written to allow the President the authority to call forth state militias in case of emergency: to my knowledge, no act of Congress prior to that authorized militias to be formed--they were already operational and accepted as a regular part of state government.

          "Speaking for myself only" - Armando

          by JR on Wed Dec 26, 2012 at 07:40:13 AM PST

          [ Parent ]

          •  but then, by that logic (0+ / 0-)

            if the Militia Act of 1792 was not needed to make that the case, then neither was the Second Amendment needed to make that the case.

            States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

            by happymisanthropy on Wed Dec 26, 2012 at 09:54:33 AM PST

            [ Parent ]

            •  Sorta (0+ / 0-)

              The whole Bill of Rights were meant to explicitly limit congressional powers that the Federalists believed were already limited implicitly. The 2nd, for its part, closed off a potential avenue for Congress to deny states the militias they had historically possessed for immediate defense. If Congress could deny the people arms, then it could deny the states the ability to muster irregular forces, viz. the militia. Madison et. al presumed that the right to keep and bear arms preceded the Constitution and, as no provision actually authorized the Congress to interfere with it, it would be secure, but the anti-Federalist sentiment necessitated an explicit recognition of the right that would preserve a state's ability to resist a federally commanded hostile force.

              "Speaking for myself only" - Armando

              by JR on Wed Dec 26, 2012 at 02:10:31 PM PST

              [ Parent ]

              •  well, that I agree with (0+ / 0-)
                If Congress could deny the people arms, then it could deny the states the ability to muster irregular forces
                But if no militia currently exists, is the capacity (or lack thereof) to assemble one in the future relevant to the second amendment?

                Does the second amendment protect the capacity to assemble a militia today, or the capacity to assemble a militia during an unforeseen emergency that the state has not adequately provided for?

                States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

                by happymisanthropy on Wed Dec 26, 2012 at 03:46:33 PM PST

                [ Parent ]

              •  Let me say that stronger. (0+ / 0-)

                I agree that what you said is, in fact, the main purpose of the second amendment.  However, the framers sought to achieve that purpose not by giving a "right" to the states, but by guaranteeing an actual right of individuals.

                States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

                by happymisanthropy on Wed Dec 26, 2012 at 03:59:05 PM PST

                [ Parent ]

                •  They didn't "give" the right to states... (0+ / 0-)

                  ...because the states always had the right, well before the Constitution, and the Constitution did not empower the federal government to end that longstanding practice. That's the point I'm getting at. The only restrictions the Feds could employ were to call forth the militia, make rules for organizing and disciplining it according to a national standard, and having the President command it when it was nationalized. Otherwise, the states retained all their original authority, including the naming of commanders and officers. That's why s. 8 mentions "reserving" the power to appoint officers: it recognizes the militia as an institution the states are inherently empowered to establish.

                  Another argument that I meant to note earlier (working from an iPad is hard, dangit) is that Congress isn't empowered to establish a militia in the Constitution, unlike an Army and a Navy. They can "raise and support armies," but only "call forth the militia." The distinction seems relevant to the discussion.

                  "Speaking for myself only" - Armando

                  by JR on Wed Dec 26, 2012 at 06:06:34 PM PST

                  [ Parent ]

                  •  but (0+ / 0-)

                    do the states have any authority to organize militia units outside of the prescribed national standards?  Can my state create its own "militia" fighter wing with volunteer pilots who coincidentally all draw a salary from Blackwater?

                    States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

                    by happymisanthropy on Wed Dec 26, 2012 at 10:50:56 PM PST

                    [ Parent ]

                    •  Tough call (0+ / 0-)

                      Your direct question at the start--can states organize militias outside federal prescriptions--is a yes, so long as they don't contradict federal standards that are set by law (which congress may set under article I, s.8).

                      As to the hypothetical, the Constitution doesn't provide a clear answer. Are planes closer to ships of war, as prohibited by s.10, or not? Does it depend on the type of plane? Could go either way.

                      "Speaking for myself only" - Armando

                      by JR on Fri Dec 28, 2012 at 01:03:02 PM PST

                      [ Parent ]

        •  The NY Guard might be a special case... (0+ / 0-)

 I believe it isn't federalizable. But that wold be an exception, not the rule.

          "Speaking for myself only" - Armando

          by JR on Wed Dec 26, 2012 at 07:41:22 AM PST

          [ Parent ]

    •  There's no prohibition on militias in peace. (0+ / 0-)

      That's entirely made up.

      One piece of free advice to the GOP: Drop the culture wars, explicitly.

      by Inland on Wed Dec 26, 2012 at 02:32:00 PM PST

      [ Parent ]

  •  By definition (8+ / 0-)

    only individuals can have rights.  The use of the word "right" can indicate nothing other than a right of individuals.  That would be true even if it were not expressed as "right of the people," which everywhere else in the constitution is always interpreted as rights possessed or at least shared voluntarily by individuals.  "Right of the people" always means individual people, it never means the state.

    See the tenth amendment:  States have powers.  They never have rights.

    States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

    by happymisanthropy on Tue Dec 25, 2012 at 06:16:17 PM PST

    •  I don't think that's necessarily true (3+ / 0-)
      Recommended by:
      mkor7, Sandino, DefendOurConstitution

      It's possible to have collective rights that cannot exist in the context of the individual, but require some larger body of "the people" to trigger. For example, one person cannot, by definition, exercise the right to peaceably assemble: the very act that triggers the right is collective in nature. (Otherwise, you just have someone engaging in speech, not assembly, and the enumeration of both rights in the First Amendment is powerful evidence that they are distinct from each other.) In an assembly, each person is protected by the Constitution, but not in the context of being an individual, but rather as constituent parts of a larger body. It's a fine point, but I think a salient one in the current discussion.

      "Speaking for myself only" - Armando

      by JR on Tue Dec 25, 2012 at 07:40:45 PM PST

      [ Parent ]

      •  An individual (8+ / 0-)

        has the right to join an assembly, leave an assembly, or start a new assembly.  So even the freedom of assembly ends up being an individual right, even if it is only meaningful if other individuals choose voluntarily to share it with you.

        If two people assemble, does the assembly have greater rights than the sum of the two people who combined?  If one of them subsequently decides to leave, do these super-rights disappear? I can't see any assembly rights that are not invested by the members of the assembly, and retained by them.  Of course, incorporated assemblies also have certain prerogatives given to them by law, but these are not rights.

        Even if there's a magical right that only appears where two or more join together, that right is inherent in every possible combination of two people in the country... it seems much simpler to assign it to the individual and not to the potential combinations.

        And back to the point, even under your interpretation, that every assembly possesses rights greater than the sum of those invested in it by its individual participants, it does not support the logical leap that  "the people" in the second amendment really means the state as a collective body of people. It still belongs to the people in a dispersed sense, not to the collective body of the whole People of the State.

        Who I associate with is not subject to a vote of the People of the State of Washington.  Neither are rights under the second amendment.

        States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

        by happymisanthropy on Tue Dec 25, 2012 at 08:30:38 PM PST

        [ Parent ]

        •  I think you're half correct (1+ / 0-)
          Recommended by:

          I agree that the Second Amendment shouldn't be interpreted to address states, nor would I conflate "the people" with "states" (the distinction between the two is made clear in the Tenth Amendment, for example). But I disagree that only individuals can have rights. Perhaps natural rights, but not legal ones. Entities may be given legal, enforceable rights. States may have rights, corporations may have rights (due process and equal protects apply just as much to them as to us), denominations may have rights in addition to those of congregants, assemblies may have rights in addition to those of their participants. There is no logical need to reduce every entity to its constituent parts in order to find protections in the law.

          "Speaking for myself only" - Armando

          by JR on Wed Dec 26, 2012 at 07:50:10 AM PST

          [ Parent ]

    •  Not true (1+ / 0-)
      Recommended by:

      Corporations are people too.

      ON a serious note though if your definition was true then where would states rights fall?

      If at first you don't succeed, vote Teapublicans out and try again. You have to be persistent if you want anything out of life.

      by Final Frame on Tue Dec 25, 2012 at 07:52:52 PM PST

      [ Parent ]

      •  asdf (5+ / 0-)
        Corporations are people too.
        Artificial people created by government.  Since government has no rights, it cannot give rights to its creations.
        ON a serious note though if your definition was true then where would states rights fall?
        Empty set.  States have NO rights.
        The tenth amendment does not say states have rights.  It says they have powers.
        Governments derive their powers from the consent of the governed.  They do not have any intrinsic rights of their own.

        States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

        by happymisanthropy on Tue Dec 25, 2012 at 08:08:24 PM PST

        [ Parent ]

        •  Still no (0+ / 0-)

          Over the last 100 years theres been extensive "debate" on what the federal government can force an individual state to do.  Your statement is kinda like saying "well if that person there doesn't do what his people want then he won't get elected".  How many times have we seen the same person get elected regardless.

          I understand the theory but due to overall application....

          If at first you don't succeed, vote Teapublicans out and try again. You have to be persistent if you want anything out of life.

          by Final Frame on Tue Dec 25, 2012 at 08:14:28 PM PST

          [ Parent ]

          •  huh? (5+ / 0-)

            I agree there are limits to what the federal government can force states to do, or prevent the state from doing.

            However, these are not rights.

            The tenth amendment talks about powers reserved to the states, but it does not use the word "rights."

            States have powers reserved to them.

            Some have erroneously called these powers "rights."
            They are not rights.  The tenth amendment does not call them rights.  States do not have rights.

            States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

            by happymisanthropy on Tue Dec 25, 2012 at 08:37:24 PM PST

            [ Parent ]

      •  Just ask the Roberts Court, you know the same one (1+ / 0-)
        Recommended by:

        that for the first time in our history invented gun rights that were never there and also invented that corporations are people.

        Then they came for me - and by that time there was nobody left to speak up.

        by DefendOurConstitution on Wed Dec 26, 2012 at 01:18:56 PM PST

        [ Parent ]

    •  Then they have the right as individuals (0+ / 0-)

      to partake in an arms keeping and bearing militia. Just as the individual right to participate or organize in an assembly, which can not exist as an individual.

  •  A question for the people (3+ / 0-)
    Recommended by:
    Navy Vet Terp, sensetolisten, ER Doc

    I've read the diary a few times and did a text search for "people", but was unable to find any comment by the diarist on the historical definition of the term "people" in the 2nd amendment, and the degree to which that definition or other words are consistently used throughout the rest of the original Constitution.

    Based on the dictionary still in Jefferson's library at Monticello (facsimile at,

    "militia" is defined as the standing force of a nation
    "regulate" is defined as 1) to adjust by rule or method, 2) to direct
    "keep" is defined as 2) to have in custody, 4) to preserve in a state of security, 9) to conceal, 14) to hold in any state, 22) to have in the house
    "arms" is defined as 1) weapons of offense
    "bear" is defined as 1) to carry as a burden, 3) to carry as a mark of authority, 4) to carry as a mark of distinction
    "people" is defined as 1) a nation, those who compose a community, 3) the commonality, not the princes or nobles, 5) men, or persons in general.

    A well directed or adjusted standing force being necessary to the security of a free State, the right of the commonality to have in their houses and carry weapons of offense as a mark of authority or distinction, shall not be infringed.

    Feel free to make your own substitutions. Your interpretation is as good (and subjective) as mine. I did not supply all the dictionary definitions of each word, only those that seemed most relevant, but you can follow the link for the full text.

    It seems that by the defintions used at the time and by the authors, the right conferred in the 2nd amendment, either as originally proposed or as finally adopted, is assigning a right to the people (the commonality, not the government) for the purpose of directing or adjusting a militia (a standing army). That is, armed citizens would be a potential addition to a militia if needed, and if we accept the diarist's definition of "arms", it would seem sensible that adding citizens with weapons to the militia would not be of much use unless those weapons met the definition of "arms" (i.e. military grade).

    This does not seem inconsistent with the historical background presented by the diarist. The framers were concerned about a standing federal army, the states wished their own "standing force", and the relatively small budgets of both and the experience of the Revolutionary War demonstrated the utility of personally owned firearms.

    Note George Mason's comment quoted by the diarist:

    If the clause stands as it is now, it will take from the state legislatures what Divine Providence has given to every individual - the means of self-defense.
    The conclusion of the diarist is that the 2nd amendment gives state militias explicit permission to exist and be armed. The diarist quotes George Mason as part of his argument.

    An argument, which if accepted, is apparently saying that states should have the same (god-given) right to be armed that individuals have.

    Before anyone works themselves into a frenzy over this interpretation, remember that all I have done is look up the definitions of the words used in the amendment and apply them to the arguments and historical data presented by the diarist. If I have made factual errors, please point them out. If the disagreement is merely in terms of interpretation, then please remember that interpretations are subjective.

  •  The notion that the 2nd is a State right, and (6+ / 0-)

    not an individual one, seems to go against the grain of the overall Bill of Rights-- to outline those rights which for the individual citizen are sacrosanct, and not to be encroached upon by the state. Why put a State-only right in with a bunch of individual rights?

    A logical argument could then be made (for example) that the 1st Amendment only guarantees the right of State-owned media to free speech... or only State-owned property to be secure from illegal search & seizure under the 4th, end so on.

    I agree that a militia should be better organized, trained, and disciplined that what we have now (which is nothing) but I'm not sure you'll find fertile fields for this interpretation to grow.

    •  Read the 27th Amendment (3+ / 0-)
      Recommended by:
      mkor7, Laconic Lib, Sandino

      One of the 12 amendments that Madison introduced and the First Congress passed with the requisite 2/3 vote of each house and forwarded on to the states - it hung in limbo until ratified in 1992.

      And read the Madison amendment that passed the First Congress with the 2/3 vote required for each House, but to date has not been ratified:

      After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

      "We have always known that heedless self-interest was bad morals, now we know that it is bad economics." Franklin Delano Roosevelt, Jan. 20, 1937

      by Navy Vet Terp on Tue Dec 25, 2012 at 07:11:01 PM PST

      [ Parent ]

    •  Also, (0+ / 0-)

      The 1st proposed amendment, which was never ratified, dealt with apportionment.  What we call the 1st (because it was first to be ratified) was actually third one proposed. The 10th specified (the then-implied notion) that powers not given to the federal government were granted to the states, and if taken by them, to the people.  

      The term Bill of Rights appears nowhere on the amendments themselves; the term was introduced as an analogy to the English Bill of Rights of 1689 (and other documents based thereupon).  That is to say, the American version was specifically 'expanded' to protect states from federal infringement, not just people.

      Notably, at the time, they did NOT protect the people from their state's infringement.

      Conservatives need to realize that their Silent Moral Majority is neither silent, nor moral, nor a majority.

      by nominalize on Wed Dec 26, 2012 at 09:31:35 AM PST

      [ Parent ]

  •  Sorry, but I don't agree with this interpretation. (9+ / 0-)

    I really want to, but I don't.  

    It really is just a poorly written piece of the Constitution.  It is badly worded, far too subject to interpretation, and doesn't settle much of anything.  Throwing citations at the issue really doesn't help anyone's understanding.

    There is a preamble to it mentioning a militia and then the infamous second part which everyone quotes "the right to keep and bear arms shall not be infringed".  It gives a reason and then presents what it actually is providing as a right.  If you are saying the reason is gone, the rest of it is not.  The right to keep and bear arms still stands until the amendment is changed.  It would be like if an amendment said "in order to provide a horse with provisions, the right to XXXX shall not be infringed".  Just because we no longer use horses frequently would not invalidate the second part.  If it was troubling, then the amendment would require rewriting.  This is what needs to happen here.  

    Here is why.  If you are a "strict constructionist" (and we know that all good justices are, right?), then the 2nd Amendment allows felons and psychopaths to keep and bear arms.  Surely this amendment does not specifically exclude felons or known psychopaths.  The Founding Fathers surely knew about the existence of such individuals and did not specifically exclude them ergo they must be allowed to keep and bear arms.  And this makes sense, right because we know these guys were infallible.  

    We also know that there really is no definition of the word arms.  Thus people should be allowed to keep and train with weapons such as hand grenades.  Of course hand grenades completely invalidate the idea of having armed citizens packing heat so as to help maintain the peace, but nonetheless, hand grenades are arms by any reasonable definition and therefore they should be legal.  People's rights are being infringed as we speak and we should all be outraged by the ban on hand grenades.  No really.  Call your congressman.  Now.  

    So no I do not agree with this interpretation in this post as much as I would like to.  The amendment is simply  badly written, it is proof positive that the Founding Fathers were far from infallible, it completely gives the lie to anyone that claims to be a "strict constructionist" and it quite frankly needs to be changed.  Period.  Nothing less is really acceptable.

    •  Agreed (3+ / 0-)
      Recommended by:
      sensetolisten, Blanchy, mkor7

      Despite what some may think from my previous post, I think the wording of the Bill of Rights leaned more towards elegant than specifically useful, and presumed the reader and later generations would apply some common sense to the interpretation. You do not have the freedom to yell "fire!" in a crowded theater, for instance.

      Nonetheless, some intent can be deduced from the language, but which interpretation and what "common sense" limits on the freedoms listed are a matter for each generation (and its courts and legislatures) to decide.

      Personally, I do not think any of them should be interpreted through the courts in such a way to prevent them from being re-interpreted later. For instance, "people" in the Constitution usually meant "white men". It has been reinterpreted multiple times since then. Perhaps in the future, genetically engineered dolphins will be "people" too. We should make sure that the document stays mutable enough to remain relevant through social and technological change that we cannot foresee, just as it has survived changes that they could not foresee.

    •  I agree it is badly written (2+ / 0-)
      Recommended by:
      Sandino, OregonOak

      Likely because of a last minute decision by both houses of Congress to delete the controversial conscientious objector provision to send all 10 amendments to the states as one package.  States would not be likely to allow felons and psychopaths into their militias, and, if they did, then Congress retained the authority under Article 1, section 8, clause 16 to cut off that state's militia funding and supply of arms, and thereby forcing the state to comply with the federal standards that provision in the Constitution authorized Congress to set.

      "We have always known that heedless self-interest was bad morals, now we know that it is bad economics." Franklin Delano Roosevelt, Jan. 20, 1937

      by Navy Vet Terp on Tue Dec 25, 2012 at 07:17:05 PM PST

      [ Parent ]

      •  Badly..(ambiguously).. written for a purpose: (0+ / 0-)

        to allow future generations to experience the consequences, check out the workability of it, amend or reintepret it as current conditions require.

        Badly written is not an argument for its abolition; Badly written is the opening for a New Birth of Second Amendment rights, which Scalia and the Gang of Four bungled badly, while admitting they were bungling badly by narrowing the scope of it to virtually THAT case for THAT moment.

        Figures don't lie, but liars do figure-Mark Twain

        by OregonOak on Wed Dec 26, 2012 at 08:58:08 AM PST

        [ Parent ]

        •  2/3 vote of each House + 3/4 state legislatures (0+ / 0-)

          Ain't gonna happen.  More than a few times in our history the courts have reversed course, often with outside pressure and public disgust at their constitutional interpretations, but an amendment ain't gonna happen.

          "We have always known that heedless self-interest was bad morals, now we know that it is bad economics." Franklin Delano Roosevelt, Jan. 20, 1937

          by Navy Vet Terp on Wed Dec 26, 2012 at 03:54:46 PM PST

          [ Parent ]

    •  It's important to note a crucial distinction (1+ / 0-)
      Recommended by:

      between natural language and legal language that is operating here.  [first: I agree that this law is poorly written.  It ought to be replaced, but we know it won't be.]  Everyone agrees that the first clause modifies the second by enumerating its cause (As Scalia accepts, the first clause can be paraphrased "Because a well-regulated militia is necessary for the security of a free state".  To put it in technical language, the second clause presupposes the first.  That's not really a controversy, or much of a problem.

      The problem (as you point out) is that the first clause is simply false: A well-regulated militia is NOT necessary for the security of a free state.  At the time, they apparently thought so, but since then, regular police were invented (they didn't exist in 1789), and we equipped ourselves the most powerful standing armed forces ever assembled.  On these we rely for our security and freedom, not a militia, regulated or otherwise. and some secure and free countries don't even have an army.  

      In a natural sense, when a clause's presupposition is false, the clause is nonsensical--- it is neither true nor false.  Imagine someone saying "Tom Brady being injured, the Patriots will not win the Super Bowl."  Now, Tom Brady is not injured, so will the Patriots win or not?  We don't know; it's neither true nor false on its own, hence it is nonsense. We can't tell if the Pats will win from this clause alone, because the truth of the main clause depends on its absolute modifier.  

      That's natural language.  However, in legal language things work a bit differently.  The SCOTUS brings up a distinction between 'prefatory' and 'operative' language.  This distinction doesn't exist in natural language (where distinctions are more subtle), but in legal language it does.  Essentially, operative language is law whether or not the prefatory language given as its justification is true.  If we banned English imports, citing the continuation of  'cruel' Queen Elizabeth's reign, the ban doesn't go away automatically when the Queen dies, or if it is proven that she is not in fact cruel.  We have to pass a law repealing the ban.  You can make conditional laws, but you'd have to write operative language into the law, rather than relying on the justification.  That's not how natural language works, but legal language, which does not permit the vagueness and ambiguity of natural language, differs in this respect.  

      It adds to the confusion around this law, and shows quite clearly how poorly written and unsuitable it is.

      Conservatives need to realize that their Silent Moral Majority is neither silent, nor moral, nor a majority.

      by nominalize on Wed Dec 26, 2012 at 09:52:30 AM PST

      [ Parent ]

    •  If you are such a strict constructionist that the (0+ / 0-)

      2A can only be interpreted as when it was written, then it stands to reason that the arms that people can bear are only those of the 18th century when the 2A was written.

      Then they came for me - and by that time there was nobody left to speak up.

      by DefendOurConstitution on Wed Dec 26, 2012 at 01:21:58 PM PST

      [ Parent ]


    This is one of the first articles I have seen challenging the Second Amendment balderdash the gun manufacturers
    dreamed up to justify having rapid fired bullets from semi-automatic guns which are actually tools of war.  This type of gun was used to hunt and kill little kids and teachers in Newtown.  Why are Americans so afraid of their government:  Why are there 300 million guns in America, the most by far of any country.  Be a brave American, live gun free.  

  •  i have a right to a drone (4+ / 0-)

    with hellfire missiles... and an abrams tank.  because then the govt will fear me or something. :/

    Stop Prohibition, Start Harm Reduction

    by gnostradamus on Tue Dec 25, 2012 at 07:53:48 PM PST

  •  When they were writing this (3+ / 0-)

    pretty much every male had a gun which was a requirement for survival. It was a fact of life in their world.

    Travel was dangerous,food came from the woods for most people and almost every one who signed the constitution was a farmer.

    It is the heart that makes a man rich. He is rich according to what he is not what he has -Henry Ward Beecher

    by PSWaterspirit on Tue Dec 25, 2012 at 08:30:54 PM PST

  •  journeyman Quoted The Federalist Papers (6+ / 0-)

    journeyman had a nice summary about the 2nd Amenment which apprently really is about being able to resist the US government.  It's an anachronism, and dimbulbs think it's there to kick the kenyan out the White House, but there itis.

    James Madison, who penned the Second Amendment, intended it to placate the fears of those concerned about a strong federal standing army, and argument he had already made in the Federalist 46:

    Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the Fœderal Government; still it would not be going too far to say, that the State Governments, with the People on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by Governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.
    Likewise, Alexander Hamilton, one of the prime champions of the constitution tried to placate those terrified of central authority in the Federalist 29:
    if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.
    Moreover, when Madison penned the original article in the Bill of Rights, he undoubtedly had the Virginia Declaration of rights in mind.  That document, written principally by George Mason, one of the few attendees to the Constitutional Convention that refused to sign (on the grounds that it did not include sufficient protection against central tyranny, read as follows:
    XIII That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.
    The Second Amendment was all about resistance to federal authority and standing armies.

    There’s always free cheddar in a mousetrap, baby

    by bernardpliers on Tue Dec 25, 2012 at 09:08:03 PM PST

  •  This is excellent, heartfelt thanks to you! (1+ / 0-)
    Recommended by:

    ❧To thine ownself be true

    by Agathena on Tue Dec 25, 2012 at 09:19:08 PM PST

  •  Thanks. Quick summary/K.I.S.S. version? (0+ / 0-)

    I'd love to be able to put this on a palm card but I'm not smart enough to boil this excellent diary down into bits I can slide down the throats of certain people.


    P.S. I'd love to know if the Framers had examples in mind of when there weren't "well regulated militia"...What  situations were they trying to prevent.

    Please forgive me for not reading the diary carefully but I have poor eyesight.

  •  I remember Kerry campaigning hard against Bush (5+ / 0-)

    for letting the assault weapons ban expire. People on both sides of the asile argued that it wouldn't make a huge difference, John Kerry knew better. In all fairness, the liberal blogosphere seemed pretty upset about it too. Here we are 8-9 years later, turning into a nationwide war zone.

    Kerry in 2004:

    "It is a test of character," he said. "In a secret deal, he chose his powerful friends in the gun lobby over the police officers and families that he promised to protect." He said Bush has made it easier for terrorists to do their jobs and harder for police to do theirs.
  •  Sadly (2+ / 0-)
    Recommended by:
    ER Doc, Navy Vet Terp

    This boat has sailed. As the amendment was written there was always the chance for the present interpretation. I think it is useless for anyone wanting control over deadly weapons to question in the near future the present SC reading of the 2nd amendment. The game is now to see ho much is too much regulation and what arms are. We should focus on.

  •  Great Diary, Tour de Force (1+ / 0-)
    Recommended by:

    80 % of Success is Just Showing Up !

    by Churchill on Wed Dec 26, 2012 at 01:03:48 AM PST

  •  Here's your "2nd Amendment" at work... (2+ / 0-) -- I mean at work!.  At your damn workplace, here's Scalia's interpretation of Washington DC's right to flash a firearm:

    The day after Labor Day, just as campaign season was entering its final frenzy, FreedomWorks, the Washington-based tea party organization, went into free fall.

    Richard K. Armey, the group’s chairman and a former House majority leader, walked into the group’s Capitol Hill offices with his wife, Susan, and an aide holstering a handgun at his waist. The aim was to seize control of the group and expel Armey’s enemies: The gun-wielding assistant escorted FreedomWorks’ top two employees off the premises, while Armey suspended several others who broke down in sobs at the news.

    Now that's your Antonin Scalia "right" at work.  I mean, at your damn workplace.

    Up until Haller, the right to a firearm was mitigated by the vagaries of your militia status, or what-not.  Antonin decided that you can fuck up anyone with a personal "right to bear arms" whenever you want.

    And, apparently, so can a National Leader of Republican House of Representative members.

    I can't wait until a Minority Party leader brings his Scalia-endorsed handgun to the House floor, next session.

    Get used to it.

    •  Actually, this is a common way to fire people (0+ / 0-)

      The boss bringing a security guard in case the fired person gets really angry and does some damage.  It happens every day.

      "We have always known that heedless self-interest was bad morals, now we know that it is bad economics." Franklin Delano Roosevelt, Jan. 20, 1937

      by Navy Vet Terp on Wed Dec 26, 2012 at 02:41:53 PM PST

      [ Parent ]

      •  But if the guard points a gun at the employee (0+ / 0-)

        Save in self defense, this is a felony in every state that I am aware of.

        "We have always known that heedless self-interest was bad morals, now we know that it is bad economics." Franklin Delano Roosevelt, Jan. 20, 1937

        by Navy Vet Terp on Wed Dec 26, 2012 at 05:16:14 PM PST

        [ Parent ]

  •  It's time to #RepealThe2nd (1+ / 0-)
    Recommended by:


  •  I've said for a long time... (0+ / 0-)

    ...that the 2nd Amendment referred to the National Guard...

    If ignorance is bliss, why are Republicans always so angry?

    by KCBearcat on Wed Dec 26, 2012 at 02:20:35 AM PST

  •  It's time to jettison this "artifact" (3+ / 0-)


  •  Thanks for this. (0+ / 0-)

    Here's hoping that President Obama will have the opportunity to replace one or more of the K-RATS on the bench… and that those new justices will rule on this issue in a saner and more honest way.

  •  we're beating a dead horse here: it's bullshit (1+ / 0-)
    Recommended by:

    get a clue.

    it's about the money- nothing more.

    you show me a place in the constitution that even remotely rationalizes the domestic use of drones armed with 45 caliber weapons-

     i'll go to washington, get the lobbyist, get the right politicians, get the market- and flood the country with product before the impact of the common good is even considered.

    it's the age of profit over morality.

    oh, the constitution?

    that's just a rationalization for AFTER the product has embedded so deeply that there's nothing that could be done with all the existing drones out there.  

    and drones? yea, that will happen too- already is.

  •  I support the broad definition of the 2nd am. (0+ / 0-)

    I am for regulation but  the founders lived in a day where dueling to the death was  just fine.. today   they would be arrested on murder or attempted murder charges.. I think one of the best places we can  look to curb the violence other than  common sense gun laws would be at our own government who uses violence across the world as a vehicle of  terror. How many years has our military complex   been damaging our collective psyche. It takes a toll and we would be mistaken not to believe it.  From Torture to  drones our country uses violence to solve its problems  Our country needs to take a good long look at our use of violence. Our Government s the worst role model our children could have regarding the use of violence to solve problems.. How many years have we livd in a war footing and what does that do to people who grew up in it?  I would think it perpetuates a violent  tendency to justify  that very thing..  Justifying the bombing of Japan or  carpet bombing  Europe etc.. to the drone terror today..   I think we need to look at our nations violent history and present and curb it. America is a violent nation with  peole who think its ok to Bomb civilians as collateral damage..  They are people. and we have lost sight of that.. This is the problem with violence and the government has been telling .. nay we have been telling  our children violence is  an ok  response. Our government   sels violence and  has made it into big buisness.. No wonder the citizens pick up the gun to solve issues.. I think some cowmen sense gun laws are in order but also some national policy   ideas on curbing state violence in the criminal justice system, as well as in our foreign policy..

    "We need a revolution away from the plutocracy that runs Government."

    by hangingchad on Wed Dec 26, 2012 at 05:24:42 AM PST

  •  Who were in the militia's of the 18th Century? (0+ / 0-)

    Regular people. Regular people who weren't in the army or employed by the government.

     This is a fact. Not a guess. Thus the 2nd Amendment was correctly interpreted to mean that regular citizens can own guns.

     I happen to agree with the 2nd Amendment, and the current interpretation.
       That's not to say I agree with the gun nuts.

     Owning guns does NOT protect your freedoms. Proof of that is happening all around us today. We own more and more guns and we keep getting less free.

    ¡Cállate o despertarás la izquierda! - protest sign in Spain

    by gjohnsit on Wed Dec 26, 2012 at 05:49:17 AM PST

    •  Right (1+ / 0-)
      Recommended by:

      The founding fathers were against a standing army that could be used against the citizens.

      Which is what we actually have now.

      They wanted the people to be the army, that way if the gov't became too tyrannical it would be like in some of the middle eastern countries where the army joins the opposition.

      Really the biggest violation of the 2nd Amendment was when we did away with the draft.

      Now a lot of the army aren't even citizens.

    •  in the early 19th century in NH (2+ / 0-)
      Recommended by:
      gjohnsit, Navy Vet Terp

      I am a member of the NH House, which will have a debate on banning guns in its chambers next week.  I spent a fair amount of time looking at very old House & Senate journals while preparing for another issue which will come up at the same time,the abolition of the Petitions & Redress of Grievances Committee.

      Along the way, I read a lot about the state militia.  It consisted of dozens of local companies, which were heavily subsidized by the state.  The companies were apparently organized much like present day ambulance/rescue squads.  The members of these militias were constantly sending petitions to their state legislators about various things (firing officers, demanding more money, etc.) There was an actual war going on during some of the period I was researching, i.e., the War of 1812, but I saw little if any discussion of the militia companies' formal  role in that war, if any.  (However, men from New Hampshire must have fought in this war, since a much of the violence happened nearby in Maine and Canada.)

  •  This diary leaves out historical context (1+ / 0-)
    Recommended by:
    Adam B

    in light of the assumed right for everyone to have a gun and for  the duel to have been such a prominent factor in political and daily life. Please incorporate the following info into your piece to offer a more accurate view.

    "We need a revolution away from the plutocracy that runs Government."

    by hangingchad on Wed Dec 26, 2012 at 05:52:54 AM PST

  •  Here's the thing, fraud or not (2+ / 0-)
    Recommended by:
    ER Doc, NearlyNormal

    an individual's right to bear arms has now been recognized as the law of the land, via Heller.  Just as reasonably restrictions on that right was also recognized through Heller.

    Instead of arguing over a Constitutional interpretation, we need to find solutions within that framework that will quell gun violence, as Senator Schumer recented suggested.  

    Cake or DEATH? Oh, I'll have cake, please.

    by wmtriallawyer on Wed Dec 26, 2012 at 06:37:18 AM PST

    •  Or We Need Obama to Appoint 2 More Justices (0+ / 0-)

      or at least one of the "conservative" member...and then we need a case to challenge the previous ruling.

      It could happen.

      This post is dedicated to myself, without whom, I'd be somebody else. Though I'd still be an asshole. My Music: []

      by Beetwasher on Wed Dec 26, 2012 at 06:43:35 AM PST

      [ Parent ]

      •  You need to have vacancies before you appoint (2+ / 0-)
        Recommended by:
        Adam B, ER Doc

        and you need to have the right vacancies, i.e., justices from the conservative side.  That probably won't happen in the next four years.

        Then you need a case that comes up through the Courts that will overturn precedent.  That, frankly, could take years, or even decades.

        We need to come to terms with the idea that an individual right has been recognized...and focuse on the other part of Heller that says that right is not unlimited, and may be reasonably regulated.

        Cake or DEATH? Oh, I'll have cake, please.

        by wmtriallawyer on Wed Dec 26, 2012 at 06:49:40 AM PST

        [ Parent ]

        •  Actually Replacing Kennedy Could Do It And (0+ / 0-)

          I'd be surprised if there were no cases already in they system, but if Obama replaced Kennedy, a case could certainly work it's way up. Doesn't have to happen in Obama's term, but it's certainly possible.

          This post is dedicated to myself, without whom, I'd be somebody else. Though I'd still be an asshole. My Music: []

          by Beetwasher on Wed Dec 26, 2012 at 10:58:38 AM PST

          [ Parent ]

  •  We Need A New USSC Ruling on the 2A (0+ / 0-)

    But first we need Obama to appoint two more justices, THEN we take it to the hoop.

    This post is dedicated to myself, without whom, I'd be somebody else. Though I'd still be an asshole. My Music: []

    by Beetwasher on Wed Dec 26, 2012 at 06:42:06 AM PST

  •  "the right of the people to keep and bear Arms, " (2+ / 0-)
    Recommended by:
    Agathena, DefendOurConstitution
    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.
    It almost seems that the sentence fragment between the commas was added after the fact.  Take it out and the entire sentence reads better:
    A well regulated Militia being necessary to the security of a free State shall not be infringed.
    I think one of our founding 'word-smiths' won an argument while the First Congress was scrubbing away at Madison's original, well-worded and intentioned 2nd amendment, turning it into the ambiguous and dangerous thing that it has morphed into today.

    Well, the Constitution tells us how to change it, itself:  Article V.

    Changing or repealing the 2nd amendment will not solve the problems that have grown out of the mass killings by crazies with guns over the last few decades.   But, as it is worded now, the 2nd amendment gives the gun lobby a beautiful roadblock to throw in the faces of the free-guns-for-all opposition (folk like me!).  Either repeal the 2nd amendment entirely (which I don't think is possible) or return it to Madison's original content, thereby shifting the focus from individual gun ownership rights back to the rules for state's militia.  Then we might have a better chance of enacting laws, at any level of government, that will restrict the sale of guns and ammunition that will not be in conflict with the Constitution.  

    As far as what this might mean to the heartfelt feelings of gun owners and their love affair with their weapons?  Screw 'em.  When six and seven year old's are slaughtered by the objects of their desire, their voice in the conversation drops by 90db.  That's when they mask their lack of argument by raising the volume with the help of the 2nd amendment, twisting it into something the framers never intended.

    "Please don't dominate the rap Jack, if you got nothing new to say." - Robert Hunter

    by WSComn on Wed Dec 26, 2012 at 06:46:33 AM PST

  •  Yes, and not only that but (2+ / 0-)
    Recommended by:
    Agathena, DefendOurConstitution

    we must also ask, why were the states, or at least some of the states, so convinced that they needed their own military force? What exactly was the threat represented by the federal government that they were so afraid of? Can we imagine any such threat today? If not, then what has changed so much?

    The answer in one word: emancipation.

    Since 1772 (the year of the Somerset Decision declaring England slave-free), the slave-holding colonies had feared that a superior external government (initially, London; later, the US government) would forcibly emancipate their slaves. Their need to protect slavery had already caused our founding document, the Articles of Confederation, to keep each former colony separate and sovereign instead of uniting them into a single, much stronger, single nation. The federal constitution, since it weakened the powers and independence of the states, was extremely threatening to the slave holders. Not only was the 3/5 compromise established to add to the power of slave states in the national government, but there were also the Senate in which each state had the same number of votes as the others, and the Electoral College, which also preserved the bias toward state rather than democratic power in the election of presidents. When the Bill of Rights was being drafted, the secretive need to protect the slave states' “property” clearly resulted in the 10th Amendment, but also, I believe, in the 2nd. Because without a military force separate from the standing army, how could a state, even a sovereign state, hope to protect against the wave of emancipation that was then sweeping the entire civilized world?

    Without compromising with slavers, the revolution, had it happened at all, would not have included the South. Had those compromises not been included in our constitution, it would never have been ratified.

    Fourscore and seven or so years later, of course, the fears of the slavers were realized and the slaves were forcibly emancipated by the national government. The militias of the South were, in the end, no match for the US Army and the militias of the North.

    So, at that very moment, all of the compromises that had been made to convince the South to revolt against England and to join the United States became obsolete. Yet, their malevolent influence continues to harm the nation even today.

    Yes, we still have the Senate. We still have the Electoral College. We still have the 10th Amendment, preventing us from having a truly national educational system, tax system, licensure system, criminal justice system, system of corporate law, and so on. And, yes, we still have the 2nd Amendment.

    However, as correctly pointed out in the diary, its original purpose of allowing states a counter against the potential emancipatory force of a national standing army has not only long been vestigial, it has long been forgotten. Instead, its wording, ambiguous to modern ears, has been twisted to benefit the gun industry and certain conservative political groups.

    But it is not so surprising that these compromises have had such a negative influence on the nation given their source in one of our most evil foundational sources: the desire to preserve and to perpetuate black slavery.

  •  Great diary; here is a great book on this topic (4+ / 0-)

    I invite everyone to read: "The Second Amendment - The Intent and its Interpretation by the States and The Supreme Court."

    The author, Patrick J. Charles, goes into awesome detail on the history of the Second Amendment and proves, beyond any possible doubt, that the Second Amendment has nothing to do with individual gun rights.

    We need to make this point over and over and over.

  •  Thanks, great diary... (2+ / 0-)
    Recommended by:
    Agathena, DefendOurConstitution

    I also think that a significant item is also overlooked in the 2nd amendment and that is the words "The People".

    The people is plural and it means all of us as a whole just as it does where those words are used elsewhere.

    The people do keep and bear arms, we do so through our Army, Navy, Air Force, National Guard, Police, etc.

    If the framers had intentioned it for an individual right then they would have framed it specifically that way and it would have said the right of the individual to keep and bear arms must not be infringed.

    It doesn't say that, so as far as I'm concerned there really is nothing to discuss.

    Fox News, The triumph of stupidity over reason.

    by laughingriver on Wed Dec 26, 2012 at 07:19:28 AM PST

    •  other amendments? (2+ / 0-)
      Recommended by:
      high uintas, ER Doc

      How would you interpret the term "the people" in the rest of the bill of rights, since you do not think "the people" refers to individual rights?

      the right of the people peaceably to assemble?

      the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures?

      the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people?

  •  Great diary. (0+ / 0-)

    Thanks for so clearly articulating the fraud underlying the gun fetish nuts "interpretation" of the 2nd Amendment.

    I'm more than happy to see and read the ever-growing challenges to the asshole gun nuts.

    "The most potent weapon in the hands of the oppressor is the mind of the oppressed." ~ Steven Biko

    by Marjmar on Wed Dec 26, 2012 at 08:09:12 AM PST

  •  excellent post. thank you. (1+ / 0-)
    Recommended by:

    Every normal man must be tempted, at times, to spit on his hands, hoist the black flag, and begin slitting throats. -H.L. Mencken

    by Kwaidan on Wed Dec 26, 2012 at 08:28:04 AM PST

  •  Please. Not this "militia" argument again. (5+ / 0-)

    Please read the history contained in Heller again.   You might not like the result there, but they didn't make up the history.  The intentions of the founders is very clear.  

    "I ask, sir, what is the militia? It is the whole people, except for a few public officials."

    -- George Mason, in Debates in Virginia Convention on Ratification of the Constitution, June 16, 1788

    "That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms"

    – Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, 1788

    "The best we can hope for concerning the people at large is that they be properly armed."

    -- Alexander Hamilton, The Federalist Papers

    "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 entrusted 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."

    -- Alexander Hamilton, Federalist No. 28

    "To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them."

    -- Richard Henry Lee, Virginia delegate to the Continental Congress.

    "What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms."

    -- Thomas Jefferson, 1787

    Intolerance betrays want of faith in one's cause. - Gandhi

    by SpamNunn on Wed Dec 26, 2012 at 08:45:06 AM PST

    •  That has nothing to do with the 21st century (0+ / 0-)

      it's anachronism.
      "their people preserve the spirit of resistance"

      The language of 18th century about armed rebellion or bloody revolution is being used to justify 300 million guns in the USA in 2012? to invent such a thing as a right to own a gun?

      ❧To thine ownself be true

      by Agathena on Wed Dec 26, 2012 at 11:34:43 PM PST

      [ Parent ]

      •  Look at Libya today and you'll see why (1+ / 0-)
        Recommended by:

        the  founding fathers of a nation newly born out of violent revolution might naturally assume  everyone have the right to protect themselves with weapons. Lacking a coherent and universal system of state-imposed law and order, personal guns were needed in the short-term to protect the local peace, and prevent regional tyrannies.
        250 years of development later, however, such an assumption about that nation is no longer valid. Even  so soon after the revolution in Libya, today a growing majority of the population wants to confiscate and restrict personal guns.

        Ash-sha'b yurid isqat an-nizzam!

        by fourthcornerman on Thu Dec 27, 2012 at 05:26:51 AM PST

        [ Parent ]

    •  Until you address it. (0+ / 0-)

      You aren't contending you are a militia member. So did you have a point besides obfuscation?

      One piece of free advice to the GOP: Drop the culture wars, explicitly.

      by Inland on Thu Dec 27, 2012 at 06:09:11 AM PST

      [ Parent ]

  •  Thanks for the great diary. (2+ / 0-)

    "Let us never forget that doing the impossible is the history of this nation....It's how we are as Americans...It's how this country was built"- Michelle Obama

    by blueoregon on Wed Dec 26, 2012 at 09:53:24 AM PST

  •  Very excellent diary, even if some are whining (4+ / 0-)

    about you speaking the unspeakable - that the Second Amendment may not mean what the NRA and its absolutists say it means.  Oh no!  The sky is going to fall!  They are discussing the definition of the sacred Second Amendment!

    Your analysis is excellent and it demonstrates that there is no such absolute right.  Even if there were, it has to be weighed against other rights, such as the right to live without fear of millions of guns out in the hands of who knows who, and it may also be regulated.

    For all those whining about original intent and demanding the strictest interpretation of the 2A when it was written, I am fine with that as long as that originalist interpretation only grants rights to the same technology firearms that were around in the 19th century.  If we have to accept that arms have evolved, then we also have to accept that the interpretation of the Second Amendment must also evolve.

    Then they came for me - and by that time there was nobody left to speak up.

    by DefendOurConstitution on Wed Dec 26, 2012 at 01:30:31 PM PST

  •  Well done! I found this interesting piece... (1+ / 0-)
    Recommended by:
    B. The Militia in State Constitutions and Bills of Rights

    The prevailing version recognized, "A well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State." [91] It made no mention, however, of an individual right to arms.

    1. The Militia and the Constitution.--

    The problem with those arguments, however, was that they assumed something that the language of the proposed constitution did not guarantee--that the individual citizen had a "right" to keep arms. The issue of the absence of this guarantee was raised repeatedly at the state conventions as their attendees debated ratification.

  •  you would think (1+ / 0-)
    Recommended by:

    that if they only meant for a militia to have guns they might have said "... the right of the Militia to keep and bear Arms, shall not be infringed." But, no they were clear.  "... the right of the people to keep and bear Arms, shall not be infringed."

  •  you are right in that (0+ / 0-)

    "bear arms" meant serve as a soldier, but what do you think "keep arms" means?

  •  WOW! Excellent Diary! (1+ / 0-)
    Recommended by:

    Now I have some actual ammo (pun intended) when I discuss this topic in the future with any NRAs.  Thank you for the thorough recompilation of the history.  It gives an important perspective and background on the evolution and thought process that eventually led to the ambiguous wording of the amendment.  I think they tried to say with the fewest number of words what they wanted to express but time has a way of changing the meaning and losing the context of the original intent.

    ... like tears in rain

    by bladerunner on Thu Dec 27, 2012 at 04:49:10 AM PST

  •  I think that the "right" to bear arms be (0+ / 0-)

    balanced by the "responsibility" that owning a gun means you are automatically volunteered into any conflict the US happens to start, gets dragged into, has to police, or otherwise involves violent armed force against a foreign power. Meaning, "you gots the guns, you fights the wars".
    The gun owner, along with whatever of his/her weapons and as much ammunition as he/she wants to bring along, would then be whisked off to, and likewise fed, housed, and paid (standard military pay) at government expense, there in Pakistan, South Korea, Afghanistan, Bosnia, or whatever "necessary" war the US is engaged in at the time ("We got a million of 'em"), where to use his/her proficiency and patriotism to fight, and possibly die, for the freedoms he/she enjoys. Of course, any wounded survivors also get VA benefits.
    I believe the Amendment says "well-regulated militia" are the ones whose gun rights are not infringed, right? And militias are called up to fight our wars, are they not? Plus being part of a militia means you must be already qualified for combat no matter your age, sex or physical condition, yes? Goes without saying, one implies and legalizes the other -- or neither one, alone, is legal. Right?

    Ash-sha'b yurid isqat an-nizzam!

    by fourthcornerman on Thu Dec 27, 2012 at 05:14:50 AM PST

  •  Utah teachers offered weapons training- link (0+ / 0-)

    2nd amendment on overload-

    here we go...

  •  I find your interpretation (0+ / 0-)

    ... to be extremely narrow.

    In regard to the Second Amendment, not a single Congressman or Senator is recorded as saying that it would establish an individual's right to 'possess a weapon'
    In my opinion, you are splitting hairs between 'keep' and 'possess a weapon'.  While your argument for 'bearing arms' is quite strong (regarding the terminology being generally used to define military situations), your argument is much less so regarding the 'keeping' of arms.

    The state representatives of the time could have simply demanded the Amendment be written to ensure the right of citizens to 'bear arms'.  The majority of major cities/towns of the period maintained powder magazines where militia munitions and fire arms were often stored.  They didn't necessarily have to 'keep' them.

    However, the 'keeping' of the arms, as written in the Amendment, implies the arms be present on the persons or in the homes of the persons charged with their 'keeping'.  You can argue the reasons for this provision, but it is an extremely weak argument to say that the federal government, when enacting this Amendment, didn't intend for possession to enter into the equation.  In times of peace, were the weapons returned by all 'bearers' to the federal/state governments?  I'd wager not ... and I'd wager that any effort to do so would have been met with ardent protests by the 'keepers'.

    I also find your quibbles regarding the "well regulated state militia" vs. "a mob with guns" to be highly misleading and based on unsound reasoning.  I'd wager that what people think of as a "well regulated state militia" today would not have existed back in the 1700s.  More likely, what we view as our national guard / reservists would have comprised their 'armies' at that time, while those in the militia were more likely comprised of every man who could fire and reload a rifle/musket.  Additionally, for every musket/rifle owned or 'kept' by a militiaman, one did not have to be provided them by the state/federal government.

  •  The Original Intent of the Founders (0+ / 0-)

    was to have a trustworthy military confederation of independent Staten.  Some of the States would be free labor, some slave holding, some agricultural some maritime -- and the Central Government would have no standing army, navy, or  authority to collect taxes.

    After trying THAT for a while, they convened a Constitutional Convention to see what they could do about getting the authority to collect some taxes ... and wound up with a Two-State solution ...  A free Labor Republic in the North and a Slave Labor Confederacy in the South ...

    And THAT worked well enough for 87 years ... and then it didn't -- and about 500,000 Americans killed each other.

    I like to try think of States Rights as a temporary affectation of an untried Republic in a late-18th century setting ...  but the experience of the next two centuries leads me to suspect that States Rights was (and is)  simply and purely an evil necessary to small and selfish men dividing up a Continent for their personal gain.

    "Every Governor a Viceroy !"

  •  Brilliant! (0+ / 0-)

    Simply brilliant!

    Follow me on Twitter! @guileofthegods

    by Guile Of The Gods on Fri Dec 28, 2012 at 12:22:49 PM PST

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