A Well Regulated Militia

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  1. Avatar Patrick Cahalan
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    Why didn’t they fix it in 1816? The Constitution, I mean. Let me answer that: because prior to mechanized warfare, they couldn’t imagine the consequences of leaving it on the books.

    Okay, so you’re for removing the second and replacing it. Fair enough, that’s entirely consistent at least. With what? What’s your proposal?Report

    • Avatar Chris Gerrib in reply to Patrick Cahalan
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      Patrick Cahalan – they didn’t fix it in 1816 for the same reason they didn’t fix it in 1812. The party that led the US to war was opposed to higher taxes and government spending. Fixing it would have required both.Report

      • Avatar M.A. in reply to Chris Gerrib
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        I suspect it didn’t much matter to them in 1812, 1814, or 1816. There was no danger posed by automatic or semi-automatic weaponry in those years, even the British who sacked the White House were still using single-shot firearms. Multi-barrel arms with multiple firing mechanisms were unwieldy at best, and the percussion cap hadn’t even been invented yet.

        It’s very much a “law of unintended consequences” thing, they should have been much more precise with their wording but they weren’t; this general theme can be seen in much of the constitution because it’s designed to form a general framework for the creation of functional law underneath. This is a far different approach from most state constitutions, many of which are hyper-explicit and some of which are updated nearly every legislative cycle addressing minutiae that the founders would never have dreamed put into any document labeled a “constitution.” Alabama’s constitution is just plain ridiculous in length, not to mention being downright embarassing in some of the things that have never been amended out of it.Report

  2. Avatar Jon
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    M.A., F’ you! Nobody is going to tell me how, when or if I can defend myself and my family. It’s folks like you that cry out “protect us!” To the govent, be it a state, federal or local entity, in times of desperation. People like me, on the other hand, will ensure our own safety through the use of firearms. So here’s my question to you, Sir: Have you ever found yourself engaged in a real gunfight? I have. I can attest to the inherent dangers of firearms and their misuse. I have been shot. It hurts. There’s no way around it, it just does. I still don’t blame the gun that was used to injure me. The crazy bastard on the other end of it, on the other hand, is a whole other story. You will NEVER find someone that has had to defend their own life or the lives of their family that says, “Boy, I sure wish I had the smaller gun that held less bullets that took longer for me to load!”
    If I am confronted by a man that wishes harm on me, it is absolutely my right, my civil liberty, to engage him with deadly force. As the old saying goes, if you show up for a fair gunfight, you’re already as good as shot. If that man has ANY gun, knife, slingshot or baseball bat, I want to have something bigger, meaner and scarier than him. How dare you “regulate” the means in which I can defend myself?! Are you going to show up and disarm that crazy gun/kinife/bat wielding asshole? I seriously doubt it. I am all for people being held accountable for their actions, but a gigantic “F you” goes out to anyone that tells me what I need to, or how I should go about defending my family.Report

    • Avatar Tod Kelly in reply to Jon
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      Dude, chill. We’re having a conversation here. Lots of pro-2nd Amendment folks have gotten to have their say over the past week, and no one told them to go F themselves. Let’s not shout down the first real anti-2nd Amendment post.Report

    • Avatar Citizen in reply to Jon
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      says:

      Jon,
      Maybe M.A. is just trying to show that this part of a cherished document may not be written in the context we think it was. Check your state constitution, most cover your rights anyhow.
      To be honest I don’t pretend to know what the framers were getting at by adding the militia part. The bear arms part is very obvious though.Report

      • Avatar PJR in reply to Citizen
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        Citizen, the appropriate action when the words are unclear is NOT to ignore them as if they don’t exist or don’t matter. Also, words that seem clear may be misinterpreted (linguistic historians, in an amicus brief to the Heller case, offered some interesting observations about the words “keep” and “bear arms”). The best approach is to fix the Constitution to say what we, today, want it to say.Report

        • Avatar M.A. in reply to PJR
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          +1 to this: The best approach is to fix the Constitution to say what we, today, want it to say.

          Jurisprudince involving a document relying on the colloquial language inadequacies and wink-and-nudge understandings of people 225 years prior, being interpreted for the foundation of modern understanding of validity of laws written in modern times, is a cause for great levels of confusion.

          And that’s before we deal with the problem of people simply making things up.Report

    • Avatar Mike Schilling in reply to Jon
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      And when 20-odd schoolchildren get murdered by someone with the same love of more and bigger weapons that you have, well, that’s an isolated incident and well worth being safe against the imaginary intruder that lives in your brain.Report

      • Avatar Jon in reply to Mike Schilling
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        That “imaginary intruder” left me with a couple of gun shot wounds, partner. Like i said, folks that have been in real gunfights know what saves lives. If there were some good, armed people at Sandy Hook, we wouldn’t have had a body count like that. We’d be reading about some jackass that tried to break the security doors in the school to harm a bunch of innocent kids and was shot dead by the principal.Report

        • Avatar Mike Schilling in reply to Jon
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          I apologize for jumping to conclusions. Glad you’re OK.

          Note that there was an armed guards at Columbine.Report

          • Avatar Rod Engelsman in reply to Mike Schilling
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            Not to mention at Fort Hood.Report

            • Avatar aaron david in reply to Rod Engelsman
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              And I believe an armed guard shot cpt. Hassan there.Report

            • Avatar John E in reply to Rod Engelsman
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              Fort Hood? you ever been on a military base? The only people walking around with a loaded weapon are military policeman. Gun regulation is more restrictive on a military installation than most American towns. Guns have to be inside a locked container. No ammo can be stored in the same location. MPs must be notified at the front gate and then the firearm is escorted to an armory or confiscated and checked into an armory. Make sure you understand the US military regulations.Report

            • Avatar Mad Rocket Scientist in reply to Rod Engelsman
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              JohnE is correct, military bases have very few armed people on them, & the commander of Ft. Hood at the time was very strict about the no guns policies.Report

              • On the one hand, this deprives gun control advocates of an argument that I’ve seen them making (though not here as much as in other places).

                On the other hand, it sort of contradicts the other side’s argument that more people carrying would have made things safer. The commander of Fort Hood (and from the sounds of it most military base commanders) disagree despite the fact that armed inhabitants of a military base are far more likely to be well-trained in firearm usage than those at a movie theater, school, etc.

                (That’s interesting about Columbine. I didn’t know that. I’ve been kind of skeptical of the armed guard solution. Still not sure about it, but this is a data point.)Report

              • Avatar Mad Rocket Scientist in reply to Will Truman
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                Not exactly. Base commanders often enforce policies that make little sense or have but the barest relationship to logic.

                I served on an amphibious warship where the CO would shut down the half the AC units & one of the Evaps (the machines that turn sea water to fresh water). His logic was that he wanted spares ready to go in case the active ones broke. Problem was, the ship carried enough spare parts to rebuild the units should they fail, and additional parts could be flown to the ship in a few days, if needed.

                In reality (from what one of the chiefs told me), he wanted to end the deployment under budget, and spare parts unused counted in his favor. So he was willing to damage crew morale so he could look good at the end of his deployment.Report

        • Avatar James B Franks in reply to Jon
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          I disagree we would be reading about stray shots killing more people.Report

      • Avatar John Howard Griffin in reply to Mike Schilling
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        The tree of liberty must be refreshed from time to time with the blood of 6- and 7-year-olds.Report

  3. Avatar Will H.
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    That’s a really good post.
    I like the way that you used the historical examples.

    Can you cite a pre-1874 example of a statute or ordinance where possession or use of firearms was restricted?
    Not necessary, all in all. Just wondering.Report

    • Avatar M.A. in reply to Will H.
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      Not really. The need to regulate firearms wasn’t something considered a problem until semi-automatic firearms were widely available. Cartridge revolvers after the 1860s, and past that the modern recoil-based models (machine guns from 1885 onwards, pistols in roughly the 1900s forward following Browning’s model).

      Gun control laws of memory include nominal mention in the “Black Codes” of the old Southern states (which included so many other restrictions that a block against owning firearms is really rather minor). Then there’s the Miller Act (1927) which banned sending concealable firearms through the mail, the National Firearms Act (1934) which taxed the manufacture and transfer of a number of categories of weapon, Federal Firearms Act (1938) which established federal control of firearms if involved in interstate commerce.

      The Gun Control Act of 1968, established after several high profile assassinations, imposed stricter regulations including barring anyone under 21 from owning a handgun. It’s been amended a few times since, and the licensing provisions of the 1934 act have likewise been amended (badly).Report

      • Avatar Will H. in reply to M.A.
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        I don’t believe it’s entirely factual that there were no restrictions on firearms until semi-automatics.
        I believe dueling was proscribed within city limits in a number of places.Report

      • Avatar b-psycho in reply to M.A.
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        Gun control laws of memory include nominal mention in the “Black Codes” of the old Southern states (which included so many other restrictions that a block against owning firearms is really rather minor)

        Yeah, “minor”…until the Klan showed up (more than likely including several local police).Report

        • Avatar M.A. in reply to b-psycho
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          The same law also prohibited blacks from having knives or other weapons, and prohibited whites from lending guns or edged weapons to blacks.

          Far more troublesome in the “black codes” were the roadblocks put in place to prevent voting and prevent blacks from owning property or businesses.Report

  4. Avatar George Turner
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    Your historical analysis was from 1975, when that view was commonplace. Since then scholarship shifted to support the individual right, which was upheld by the Supreme Court in District of Columbia v. Heller, burying the collective right’s view of the 2nd Amendment in an unmarked grave on boot hill.

    However, if a collective right’s view prevailed, that would still leave state governors free to set militia regulations as they see fit, such as requiring every able bodied person to own an assault rifle. My state prohibits arming citizens out of the public treasury, so at times the government has directed citizens in need of arms to gun stores that had good sales going. However, we haven’t had a major call up of the militia since WW-II, even though they keep amending the laws to provide things like workman’s comp for wounds suffered in militia service. I don’t even remember what militia regiment I’m supposed to be in. I think it’s the 79th, based on the boundaries set last time the legislature decided to restructure the units.Report

    • Avatar Michelle in reply to George Turner
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      Amazingly enough, the “conservatives” on the current Court see fit to ignore history when it suits their purposes. So much for originalism and the founders’ intentions when it comes up against a favorite conservative ideological position.Report

  5. Avatar Mark Thompson
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    A good post, MA. The context you point to here is really useful and important to keep in mind in these discussions. I think it still remains that the 2nd clearly protects individual rights to keep and bear arms, rather than just a collective right, but I don’t know that your post is necessarily inconsistent with that view.* What it does, however, do is give strong support for the notion that the 2nd contemplates mandatory training and restrictions on gun owners themselves, even if it does not contemplate restrictions on their right to own the firearms. This is a pretty tight needle I’m trying to thread here, but basically what I’m getting at is that this background can be interpreted to suggest that once one chooses to exercise their right to keep and bear arms, they are expected to be subjected to certain requirements – perhaps a registration requirement (the state needs to know who is capable of being in the militia), and fairly strict requirements on usage such as storage and training requirements (the state needs to ensure that its potential militia members are capable of being responsible if called into service).

    *I think an argument can be made – and in fact I’ve made it in the past – that even if the 2nd Amendment provides an unqualified individual right to keep and bear arms of any type, restrictions on ownership of some arms are nonetheless constitutional under generally accepted strict or intermediate scrutiny analyses.Report

    • Avatar George Turner in reply to Mark Thompson
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      I’m not sure that would fly, since we have a wealth of early laws and orders from when the militias were an active part of American life. In my state the requirement was just to bring a gun if you’ve got one and show up for drill twice a year, with October being the month for the major training, as the crops were all in by then. If you refused to serve for religious reasons you had to pay a $20 fine, or an equivalent value in furniture (a provision aimed at the Shakers). You could get exempted from duty if you were a gunsmith or worked in tobacco weighing or a lead works.

      Oddly, my state specified the color of the uniforms, down to plumage on officer’s hats, but said nothing about what guns to use, so apprently the state can enact mandatory dress codes long before it can tell someone what gun they can and can’t bring to a state-sponsored gunfight.Report

    • Avatar M.A. in reply to Mark Thompson
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      This is a pretty tight needle I’m trying to thread here, but basically what I’m getting at is that this background can be interpreted to suggest that once one chooses to exercise their right to keep and bear arms, they are expected to be subjected to certain requirements – perhaps a registration requirement (the state needs to know who is capable of being in the militia), and fairly strict requirements on usage such as storage and training requirements (the state needs to ensure that its potential militia members are capable of being responsible if called into service).

      That is entirely consistent and a major part of what I’m trying to get at. Gun ownership registration ought to be considered basic bookkeeping on the part of the militia aspect; if you don’t know what arms people are bringing, you’ve already got a major logistical blunder before you’ve even called them up!

      Training requirements are another thing. NRA training is a joke these days. Most states’ carry permit training is also pretty barebones at best. I’ve seen “NRA trained and certified instructors” do things that my old scouting rangemaster would have tossed them out of the range headfirst for doing.Report

    • Avatar Mad Rocket Scientist in reply to Mark Thompson
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      Training requirements, etc. is one of the areas where I disagree with a lot of the other pro-2A folks (something I think I’ve made pretty clear elsewhere). I understand their reasons for opposition, but I find them unconvincing.Report

  6. Avatar zic
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    M.A., this is a great post. I’d add just a bit of history, as well. Payment for serving in the early militias was often land, not coin. And to keep the land, you had to ‘use’ it; New England is riddled with stone walls, mostly marking surveying lines — range and lot lines. Typically, the militia man with a grant would either sell if he was cash poor, or hire people to go build those stone walls, giving them the right to homestead the land in the process. Some did homestead; most (at least here in norther New England,) build the walls, collected their pay, and got the hell out. It’s harsh territory without the comforts of civilization.

    This also highlights another feature we forget about when we consider taxation. Until the end of the 1800’s, to pay it’s bills, the US Government subsidized its treasuries with either the sale of land or outright payment for services, most particularly military service, with land. That’s a very large part of how we expanded west. When there wasn’t much land left to sell, and the need to fund an army to fight WWI arose, we finally realized we finally adopted an income tax. Now that’s not to say there weren’t other taxes in place, but the tradition of land as payment or treasury built this sense that our government was anti-tax, and could fund itself without a source of income. Nothing could be further from the truth.

    That rapid expansion west most likely also was the reason the 2nd was left in tact. (And I’m only guessing on this one.) But there was no rule of law or justice system for early pioneers, a gun was necessary in case of attack from Indians (somebody lived on that land, remember), outlaws, and wild animals. It was necessary to hunt game. It helped men full the traditional roles as providers and protectors.Report

    • Avatar George Turner in reply to zic
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      My militia commander only gets paid $8,000 a year and campaigned on abolishing his own office, as it really has no duties except swearing in the airport cops and sheriffs, due to the merger of our city and county governments, or leading the county’s forces during time of war as the governor may direct. About a third of his own oath of office is swearing that he never fought or seconded in a duel. ^_^Report

      • Avatar zic in reply to George Turner
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        The first deed for my Grandparents farm was to a man who fought in the French and Indian wars, payment for his militia service in a Massachusetts militia regiment, From King George. It passed down to that family until my grandparents purchased the farm in the 1930’s, the second deed. The third was from my Grandmother to here oldest son, with the bulk of the land sold to reimburse the rest of his siblings.

        And the hills hereabout are riddled with hilltop cellar holes from farms (You built on the low ridges, early on, because frost settles. It would add two weeks to the growing season.) The men all went to fight in the civil war, and got paid with land out in the Ohio Valley and beyond. They traded the deep soils of the great plains for the rocky soils of Maine without a second thought. Most of those farms are just woods, now. But many were purchased by a wave of Finnish immigrants, part of the Finnish diaspora, fleeing the Russians in the late 1800’s and early 1900’s.

        Maine hasn’t had a ‘militia’ for decades, but we do have active National Guard units in their place.Report

      • Avatar George Turner in reply to George Turner
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        The National Guard almost entirely supplanted the militia with the Dick Act of 1902. Our state militias performed vary poorly in the Spanish American war, showing up with obsolete guns of different calibers and having widely varying levels of training and organization. Congress sought to correct this, but knew that the state militias were also rife with cronyism, nepotism, graft, corruption, and incompetence because they rarely actually did anything, and mostly served as a no-show posting for a governor’s idiot son-in-law or odd cousin. Congress also knew that bringing the state militias up to modern standards, with repeating rifles and other equipment, would cost a fortune and be a nearly infinite money pit, exploding the small-scale waste, fraud, and abuse found in a largely derelict and neglected arm of government and turning it into a lavishly-funded nightmare, while still doing little to ensure uniform training, unified command, and the ability to inter-operate with the federal army.

        So they dropped any funding for the militias and instead created the National Guard, a branch of the national US military that had the trappings of state control, but in fact could be called directly into national service. This made both Congress and the state governments quite happy, and we’ve used it ever since. About the only time a militia is ever called up is when there’s a natural disaster and the state’s National Guard forces are all deployed overseas, which is extremely rare.Report

        • Avatar zic in reply to George Turner
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          I wonder if what’s left of ‘militia’ here is what we know call civil patrol? They’ve contacted my husband, who’s a HAM operator, and they actually requested the town not cut down a tree on the edge of our lawn which is one end of an antenna, because he’s a resource for emergency communication. There aren’t many people involved, but those that are take the duty seriously, and they’re considered the folks to coordinate first responders in the face of disarray.Report

        • Avatar George Turner in reply to George Turner
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          Yes, I suppose technically amateur radio people are filling the a militia function that never actively existed when we were depending on militias (As a ham I used to that for parades and the emergency field day every year). A militia is similar to the sheriff calling citizens together to form a posse to round up some nefarious outlaw, or a town faced with a flood calling everyone out to fill sandbags, except it’s usually done at the state level instead of local, though the training was local.

          One of the reasons we abandoned it (and many hated it), is that it requires a military rank structure of some sort, which means the high-born idiots in your town might also be your superior officers. This was more acceptable very early in the Republic when we still had elements of the British class system, where everyone knew who was their social superiors and who was socially inferior, but as America became much more egalitarian it rubbed everyone the wrong way.Report

  7. Avatar Chris Gerrib
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    Having read both the second link provided in the original article and Scalia’s opinion in Heller (PDF at link) I think Scalia got this one right. (I am usually no fan of Scalia, but even a stopped clock is right twice a day.) Basically:

    1) In England prior to the 1600s, the militia was understood as “all males physically able to serve.”
    2) This “militia” was expected to buy their own gear.
    3) During the 1600s, both the monarchy and the Parliament attempted to control England, not by abolishing the militia, but by disarming militia members who were not on their side. So, the King disarmed Protestants, and Parliament / Cromwell disarmed Catholics.
    4) George III tried much the same drill with Americans in the run-up to the Revolution.

    In short, the authors of the 2nd Amendment did in fact mean everybody was part of the militia and could be expected to bring their own gun and gear.

    Scalia then provides some fairly persuasive cites to suggest that there was a contemporaneous understanding that the militiaman AKA everybody could legally use this gun for self-defense. These cites seem to make a common-sense argument that if it’s your gun, you get to use it under reasonable restrictions.

    Now, personally I think the era of the militia being terribly effective in defense against much of anything is over, unless you have a Swiss-style militia with no-BS drills and training. Having said that, Scalia explicitly says that Congress can regulate what type of weapons the militia can have. In short, Heller does not prohibit a ban on assault weapons, however defined.Report

    • Avatar Burt Likko in reply to Chris Gerrib
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      As I read it, Heller prohibits an outright ban on handguns. It leaves the door open to “reasonable regulation” and doesn’t define what that is. Legally, that’s about all the “there” there is there. Historically, though, Scalia’s opinion is delicious.Report

    • Avatar George Turner in reply to Chris Gerrib
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      The tricky party about Heller leaving open the question of banning assault rifles as part of “regulating” the militia is that the 2nd Amendment plainly states that the purpose of a “well regulated militia” is the security of a free state (against foreign invasions and the like). Any regulation that sought to make the militia ineffective towards that end would likely be struck down, similar to some law that tried to eliminate all interstate commerce under the guise of “regulating” it. Judges aren’t fools.Report

      • Avatar Chris Gerrib in reply to George Turner
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        An assault weapon ban (however one defines “assault weapons”) depends on how a judge would interpret Scalia’s “The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “

        If the judge decides that assault weapons are not “in common use at the time” then they can be banned. This is especially pertinent since Scalia specifically upholds the 1934 National Firearms Act upholding restrictions on private ownership of machine guns.

        In short, under Heller the government can’t take all your guns, but it can take some types of them.Report

      • Avatar George Turner in reply to George Turner
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        Except that obviously “assault rifles” are in common use, or people wouldn’t be freaking out about how everyone seems to own them. In fact, gun stores can’t keep them on the shelf.

        In keeping with Heller’s reading, the machine guns banned in the 1930’s had never attained common use except by bank robbers and the mafia, as the larger belt-fed guns were pretty useless in crime because they were too heavy, and the Thompson was too new to have entered really widespread circulation.

        One of the very few pre-Heller pure gun cases that made it to the Supreme court concerned sawed-off shotguns, and the court ruled that they could be restricted because no armies used them, and thus they had no valid military function that was vital to the militia.Report

  8. Avatar Caleb
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    1) It’s completely fair to advocate for a Constitutional amendment. Good luck with that. If you’re a betting man, I’ll give you very favorable odds against it happening within either of our lifespans.

    2) Barring that highly unlikely event, the question is: what meaning and effect should we give the 2nd? From the tone of your article, you seem to be saying that the history and context of the 2nd conclusively show that the current proliferation of private gun ownership is not protected by that amendment.

    This argument is flawed.

    There are two major views of the 2nd: One is that the “shall not be infringed” clause exists independently of the “well regulated militia” clause, and grants an individual right to gun ownership. The other is that the “shall not be infringed” clause is dependent on the”well regulated militia” clause, and grants only a right to gun ownership in the context of service in a militia. I’ll assume your views fall generally into the latter category.

    Even if this view is correct, the analysis is not done. The next question (for our purposes) is: What is the effect of the non-existence of a ‘well-regulated militia?’ It is not obvious that the answer is the elimination of the right to own firearms. The lack of a well-regulated militia is essentially a failure of government. For the reasons you cite (and many others), our state and national governments have not provided sufficient regulatory structure for service in the militia. Should this failure render the 2nd a dead letter?

    A positive answer misunderstands Constitutional law. The “well-regulated militia” clause imposes a positiveduty on the government to establish and regulate a militia. This means ensuring that all elements of a “well-regulated militia” exist. Among those elements is a well-armed populace. The failure of the government to provide for other elements (training, structure, provisions, ect.) does not give the government licence to remove the one element of a militia that does exist.

    I’ve never understood how tying the ownership of firearms to service in a militia implies reduction in the number of guns in the hands of private citizens. If anything, all else equal, it would increase (especially the number of military-grade hardware) of guns in private hands.Report

  9. Avatar Jason M.
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    Two (probably unrelated) observations:

    1: A thought that often occurs to me whenever the Swiss army is cited for the “armed society is a polite society” trope, is that the Swiss are among the few who can claim their private citizens are indeed part of a “well regulated militia”. 2nd Amendment right supporter in this county would bristle at many of those regulations, were they ever implemented here.

    2: I stated in a earlier comment that I support the 2nd Amendment because I feel it’s integral to rest of the Bill of Rights. I don’t disagree that there’s an especially religious, sacramental value placed on the Bill of Rights (and the Constitution and DoI as well) that makes discussion about their applicability or effectiveness feel like less like a Socratic query and more like a loud fart in church. I also don’t think the absence of the 2nd Amendment in particular threatens liberty and democracy. I do think, however that a repeal of any of the first 10 Amendments, even that second one I don’t personally see much use for, would break that sense of “sacredness” about the Bill of Rights, and make repealing or heavily modifying the other nine less taboo. So, as silly as I find all the Constitutional sanctimony, I also find it a valuable, useful safeguard. Now if only we could get Wayne La Pierre to see it that way too. Oh, refraining from calling mentally ill people “monsters” would be nice, also.Report

    • Avatar Will H. in reply to Jason M.
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      I don’t know where this idea that the Bill of Rights is a coherent whole, but it’s easily falsifiable.
      The First Amendment wasn’t applicable to the states until the 1920’s.
      And whatever happened to the Ninth?Report

      • Avatar Stillwater in reply to Will H.
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        I don’t know where this idea that the Bill of Rights is a coherent whole, but it’s easily falsifiable.

        It’s a Pick and Choose sorta thing. They all cohere when you interpret them into conformity. You just gotta do your Due Diligence reading deep into the Framer’s diaries to find confirming nuggets.Report

      • Avatar James Hanley in reply to Will H.
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        Will, none of the Bill of Rights applied to the states until the late 19th century, and even today it has not all been applied to the states. One of the intrigues of the !cDonald case was that it finally applied the 2nd Amdt to the states. The 3rd Amdt still has not been (although probably only for lack of a case ever coming to the Court), and parts of the 6th Amdt have still not been applied.Report

  10. Avatar Glyph
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    2 comments:

    To the history/context/argument itself: I must say, this is some pretty compelling stuff, and well-documented. Good job, M.A.

    To the rhetorical style: I have said before and will no doubt say again that I find a few of the more…passionate rhetorical flourishes (“wackos” “dead-enders” “cancer”) that you tend to use a little off-putting. I get that you feel strongly about this stuff, but to persuade people anywhere at all in the mushy middle*, I think you may be better off sticking to a “just the facts, ma’am, as near as you can make them out” approach.

    *which is where I think I am. Though I have strong opinions regarding letting individuals do what they want in clear absence of harm to others on their part, I am neither a gun owner/shooter, nor do I have strong opinions about most of the proposed legislative or regulatory moves towards a reasonable gun safety state that have been aired here.

    But persuasive rhetoric is as much seduction as it is boxing; and while this confrontational style may get some people riled up in the exact way you want it to, it pushes away other people who might otherwise be amenable to coming closer, if not all the way, to your POV.

    Different strokes, YMMV, etc., etc.Report

  11. Avatar C - Zorra
    Ignored
    says:

    I’ve been looking but I could have missed it in the entry and / or in the many comments, but have any of you mentioned this: “The Hidden History of the Second Amendment,” by Carl T. Bogus, Professor at Law. This paper can be found at:

    31 U.C. Davis L. Rev. 309 (1998)

    “This work, copyright 1998 by Carl Bogus, was originally published in the UC Davis Law
    Review, vol. 31, p. 309, copyright 1998 by The Regents of the University of California. All
    rights reserved. Reprinted with permission.”

    This paper can be downloaded free of charge from the
    Social Science Research Network: http://ssrn.com/abstract=1465114

    Abstract:

    [ ” Professor Bogus argues that there is strong reason to believe that, in significant part, James
    Madison drafted the Second Amendment to assure his constituents in Virginia, and the South
    generally, that Congress could not use its newly-acquired powers to indirectly undermine the
    slave system by disarming the militia, on which the South relied for slave control. His argument
    is based on a multiplicity of the historical evidence, including debates between James Madison
    and George Mason and Patrick Henry at the Constitutional Ratifying Convention in Richmond,
    Virginia in June 1788; the record from the First Congress; and the antecedent of the American
    right to bear arms provision in the English Declaration of Rights of 1688. ” ]

    It’s a most useful paper to read in regard to the ever ongoing issue.

    Love, C.Report

  12. Avatar James Hanley
    Ignored
    says:

    There are several things fundamentally wrong here, in addition to M.A.’s usual tone of “people who think differently don’t ever have to be taken seriously.

    First is this: there are people calling me to task for daring to suggest that a part of the “Bill of Rights”, treated as if it were some holy godly writ to be bowed down and worshipped,…should be repealed or altered

    I was one of those people, but M.A. baldly mis-states argument. It’s not taking him to task for challenging holy writ (words that only he has used), but suggesting that setting a precedent for repealing parts of the Bill of Rights could take us down paths we do not want to go. The Bill of Rights has been inviolate as regards formal constitutional change, but has always been challenged by the politics of expediency, fear, and hatred.

    The First Amendment Center surveys the public and reports on the state of the First Amendment. The findings are often discouraging, with 20% of the public disagreeing that freedom of religion applies to all religious groups, almost 20% thinking the First Amendment goes too far in the rights it protects, 30% disagreeing that musicians should be allowed to sing offensive songs (although fortunately that position has been on the decline), and 30% unable to name a single First Amendment right unprompted. School district after school district, state after state, continues to try to require the teaching of religious beliefs in public schools, or have prayers.

    The Fourth and Fifth Amendments are under a virtual state of siege, with “tough on crime” types seeking to minimize our protections against the police, police becoming more heavily militarized, the drug war mocking any semblance of due process, and of course the war on terror. In fact just this week the Obama administration supported the legal argument that cops can forcibly draw your blood without a warrant to test for drunkeness. Bill Clinton created an administrative rule that anyone who lived in public housing had waived their 4th Amendment rights against unreasonable searches. Even Democrats can’t be relied upon to protect our constitutional rights.

    I care little to not at all about the 2nd Amendment. I wish it wasn’t part of the Bill of Rights so we could have a talk about repealing it without worrying about the precedent set. But we’ve never touched the Bill of Rights before, and we should think very carefully before we declare that, politically, it is repeatable (obviously it is constitutionally repealable). I don’t think the slope is very slippery, but I also don’t think there are any obvious stopping points, no Schelling points, as strategic analysts and decision theorists call them upon which we can all agree, “this far, but no farther.” Perhaps my concern is overblown, and the precedent would never be acted upon. But the concern requires a more serious rebuttal than the thoughtless sneer of “godly writ,” unless one doesn’t see the 1st and 5th Amendments as worth fighting desperately for. If M.A. Does value those, as I assume he does, more caution is warranted.

    The second problem is that he seems to deny–although he is not explicit here and I may be wrong–that the 2nd Amendment creates an individual right. I fully agree with him that the Framers’ real concern was having militia so they could avoid a standing army. But he ignores that the legal groundwork for the individual right claim has become the dominant legal theory, promoted not just by conservative legal scholars, but by liberal ones as well. At this point, that legal theory cannot be rebutted just by pointing to the Framers’s desire for an actual militia, as correct as that claim is in itself.

    Finally, the argument relies too much on the “the founders would never expect” claim. This claim has an ugly history in 1st and 4th Amendment jurisprudence, with those seeking to limit our speech rights and protections against search and seizure often arguing, “but the founders could never have imagined X, so it’s not covered.” M.A. is not wrong about what the Framers would have expected, but what men of the 17th century could have reasonably anticipated is a very thin reed upon which to build our arguments for what is constitutionally appropriate.

    I do agree with him that rewriting it would be better than simply repealing it. I probably would oppose that, too, but it would be marginally less worrisome.Report

    • Avatar Will H. in reply to James Hanley
      Ignored
      says:

      I talked a little about the Maldonado v. Municipality of Barceloneta case on another thread; a little side issue dealing with First Amendment issues and electronic documents.
      Here’s the factual underpinnings of the case, as told by District Judge Jay A. Garcia-Gregory:

      On October 1, 2007, the Municipality of Barceloneta (“the Municipality”) acquired the right to operate and manage its public housing communities by transfer of such right from the Puerto Rico Housing Administration (“PRHA”). On October 2, 2007, officials of the Municipality established a policy whereby residents of the housing communities would have to surrender their pets or face eviction from their properties. The Municipality informed all the residents of the public housing of the aforementioned policy by sending memoranda between October 3, 2007 and October 7, 2007. In these memoranda, the Municipality informed the residents that it would be enforcing the policy and that Animal Control Solutions, Inc. (“ACS”) had been hired to pick up the animals.

      On October 8, 2007, ACS together with personnel of the Municipality, and the Municipal Police of Barceloneta conducted raids in three different public housing communities. In these raids, the residents’ pets were taken from their owners, injected with a chemical tranquilizer and thrown against the walls of the cars where they were transported. Those animals that survived being thrown against the van and the effects of the chemicals were then thrown from a bridge commonly known as “El Paseo del Indio.” The distance from the bridge to the ground is approximately 60 to 80 feet. Few pets survived this ordeal. On October 10, 2007, raids in other residential communities in Barceloneta were conducted in which the residents’ pets were also tranquilized, thrown against the walls of the cars where they were to be transported and then hurled from the “El Paseo del Indio” bridge.

      Plaintiffs [and presumably their children– WH] witnessed Defendants removing, mistreating and injecting their pets with unknown chemicals, and then slamming them against the vehicle panels of the cars in which they were transported. On October 19, 2007, Plaintiffs filed the present cause of action under 42 U.S.C. § 1983, 1985, and 1986. Plaintiffs
      allege violations of the Fourth, Fifth, and Fourteenth Amendment of the United States Constitution. In addition, Plaintiffs allege violations to Section One, Four, Seven, Eight, and Ten of the Constitution of Puerto Rico, and Articles 1802 and 1803 of the Civil Code of Puerto Rico and several state laws. Plaintiffs are seeking compensatory and punitive damages, costs, attorney’s fees, declaratory judgment, injunctive relief, pre-judgment and postjudgment interest, and the value of their pets.

      Plaintiffs contend that Defendants conspired and acted together when they confiscated and killed their pets. Moreover, Plaintiffs aver that Defendants’ actions and omissions were illegal, arbitrary and capricious. According to Plaintiffs, Defendants used threat, intimidation, harassment, and persecution to get them to turn over their pets. Additionally, Plaintiffs stress that Defendants violated their right to be free from warrantless searches and seizures.

      Furthermore, Plaintiffs allege that Defendants acted intentionally with callous and reckless disregard for Plaintiffs’ rights by allegedly refusing to provide them with pre-deprivation remedies prior to the confiscation of their pets and with postdeprivation remedies after the confiscation of their pets. Moreover, Plaintiffs contend that Defendants’ actions constituted a taking.

      That’s from a motion to dismiss where the court dismissed certain claims that were not well-pleaded.

      What happened there was that most of the plaintiffs had their claims dismissed procedurally. They failed to answer interrogatories in a timely manner. It doesn’t take much imagination to see what happened.
      How long have you had your pet?
      Did you receive notice regarding the policy on pets?
      Was your pet in your home after receiving the notice?

      They were poor, and had no place else to move to; and so they could not answer, because doing so would force them out of their homes. And so, they lost their claims.
      The officials of the municipality were permitted to engage in illegal and unconstitutional acts.
      Here’s this:

      Plaintiffs argue that Defendants conspired to deprive them of their pets because they lived in low income housing, and consequently were from a low economic class. 42 U.S.C. § 1985(3) protects persons from conspiracies that would deprive that person or any class of persons, of their Constitutional rights.

      Additionally, the statute requires evidence of “racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). Furthermore, the plaintiff must show that the conspiracy was “aimed at interfering with protected rights.” Donahue, 304 F.3d at 122 (1st Cir. 2002). Recently, the First Circuit narrowly construed § 1985 claims to those based on racial animus, and not those dealing with either a political, economic or commercial basis. Perez-Sanchez v. Public Building Authority, No. 07-1869, slip op. at 3 (1st Cir. Jun 30, 2008). Accordingly, in order for Plaintiffs to have a viable claim, they must belong to a constitutionally protected class under § 1985(3). Plaintiffs have failed to proffer sufficient evidence that they belong to a protected class under § 1985.

      In the instant case, Plaintiffs assert a § 1985(3) claim because Defendants allegedly conspired to deprive them of their Constitutional rights. Here, Plaintiffs allege they were conspired against because of their social origin and condition as people residing in public housing communities. However, Defendants (I) aver in their Motion to Dismiss that Plaintiffs do not allege any valid racial or class-based animus and, therefore, cannot have a valid claim under § 1985(3). Lacking sufficient pleaded facts of a conspiracy, Plaintiffs’ §1985 claims must be dismissed as to Defendants (I).

      Score one against racism; the poor be damned.

      Ironic, since this permits people of color to commit unlawful and unconstitutional acts, as it would then be difficult to prove race-based animus.Report

    • Avatar Michael Drew in reply to James Hanley
      Ignored
      says:

      “Even Democrats can’t be relied upon to protect our constitutional rights.”

      ??

      What was supposed to have made us think they could be? The most I think anyone who’s not literally a Democrat – to the point of being, like, a party-employed PR mouthpiece – tends to ever suggest is that wrt to some protections, they’re somewhat more committed to protecting them (and obviously, on a few, it’s at the center of their current political pitch). But that’s about it. Clearly, both parties have incentives to, let’s say, restrain the vigor with which they seek to limit the power of the government to deliver things they (the parties) think the public (or parts of the public) wants more than they want single-minded and maximal protection of every right listed in the Constitution. Democrats want leeway to provide security almost as much as Republicans, for example.Report

  13. Avatar James Hanley
    Ignored
    says:

    Hey, folks with access to the League’s interior–I just posted a long comment with three links, so of course it’s in moderation. Would one of you be kind enough to unmoderate it, and I’ll buy you a beer next time we meet.Report

  14. Avatar Bill Kilgore
    Ignored
    says:

    —and claim that a piece of law written in order to ensure the availability of men and arms at times of war is instead a right for every deranged lunatic to own and haul around on their back a weapon capable of taking down more people in under one minute than a militia brigade likely could in ten.—

    This is just embarrassingly bad history. The Constitution presumed that individual citizens would be able to- and did- own cannons (hence the Letter of Marque business) let alone whatever the scary gun of the day happens to be. The ability of the people to take down lots of other people was assumed. The Framers deemed the possibility of such to be vastly superior to a Federal government with a practical monopoly on violence.

    The entire “they never….” set of statements is just silly. The 2A assumes that people will have access to deadly force- that’s the whole point. The Framers well knew the risks. They locked them in anyway.

    The state thing is wrong, people routinely passed from state to state in the colonial period and many prominent men of the period owned property and/or traveled in multiple states. Violations of local ordinances are, and were, inapposite to a 2A discussion.

    And this militia discussion is just plain batty. The militia wasn’t only concerned with war- that’s really an announcement of ignorance on this topic- and the militia’s efficacy in such situations was, and is, irrelevant. Your claim is simply a ridiculous assertion. As a threshold matter, a militia may be used to address any breakdown in civil order- not simply an invasion or similar- much as they were used by poorly-served minority communities during the LA Riots of 91, or may be used post hurricane (or in any other civil disruption) if necessary. A militia is a gathering of citizens to deal with a threat. Period. And those still exist.

    Moreover, arguing that because militias ceased to be the preferred military option of the Feds, the Feds can simply disregard the 2A and disarm the militia- by disarming the people who fill it- is just goofy. The entire point of the 2A is to restrain the Feds from disarming the militia. Arguing that the militia can be disarmed becasue the Feds don’t want to use it anymore renders the whole Amendment useless.

    I get that you want that, just don’t pretend its a historical or Constitutional argument. It isn’t.Report

    • Avatar DavidTC in reply to Bill Kilgore
      Ignored
      says:

      Moreover, arguing that because militias ceased to be the preferred military option of the Feds, the Feds can simply disregard the 2A and disarm the militia- by disarming the people who fill it- is just goofy. The entire point of the 2A is to restrain the Feds from disarming the militia. Arguing that the militia can be disarmed becasue the Feds don’t want to use it anymore renders the whole Amendment useless.

      The real problem is now the _states_ can’t disarm _their own_ militia, which is rather absurd.

      Subjecting the 2nd amendment (Which, regardless of how it is phrased, is intended to give states a _right_ to operate a militia, even if the Federal government wishes to disarm it) to incorporation under the 14th amendment (Thus subjecting states to restrictions on their own militia!) was completely idiotic.

      Although it’s still being interpreted wrong even if that’s true. Logically, even if states cannot now disarm their own militia (!?), they can still determine who is _in_ it. (This is one of those things so well known back then that no one bothered to put in writing, like what habeus corpus is.) So a state could ban all guns simply by saying it _has_ no militia, or that militia is solely the National Guard plus the police plus people who have passed specific gun training, and, thus, logically, it is only required to allow those people to be armed.

      The problem is the courts have idiotically decided that the entire first part of amendment doesn’t matter. That the right to bear arms doesn’t exist in the context of _state power to have a militia_, like the amendment is clearly trying to say, it just exists in general.Report

  15. Avatar DavidTC
    Ignored
    says:

    The actual intent of the 2nd amendment is pretty damn clear to anyone who actually reads it and knows the history. Because the 2nd amendment was _never intended to apply to the states_.

    That’s a pretty indisputable fact, that even if the founder’s intent was that the Federal government couldn’t disarm _anyone_, obviously the states could, and did, have laws about gun ownership at that time. I think everyone agrees with that, although a good 90% of the people involved in discussions about the 2nd amendment seem to forget it.

    ‘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, realizing it didn’t apply to states, it is pretty clear that the 2nd amendment is the _federal government_ being forbidden from disarming _state militias_. Which they would do by disarming individuals, because that is how militias worked. I don’t actually understand how people can read that amendment in any other way. States have a right to a militia, and the federal government cannot disarm people in it. (And, as is pointed out, pretty much any able-bodied male is considered part of the militia, and the state can presumably put anyone it wants in it, so the Federal government is basically forbidden from disarming anyone if the state doesn’t want it.)

    The problem is then we applied this restriction as applying to _states_ and have now forbidden the states from disarming not only their own militia (Which is somewhat crazy, if a bit moot because states don’t really have those anymore.), but _anyone at all_ (Which is completely insane in the context of the original.)

    Yes, I know that is one _logical_ outcome of the interaction between the second amendment and the Due Process Clause of the fourteenth amendment, but it’s very clearly a colossal accident. The right being spoken of wasn’t _actually_ a right to keep and bear arms, it was a right for a _state_ to operate a militia, and just phrased in a fucked up way.

    The idea that a state can be _forced_ to not disarm its own frickin militia is crazy. As is the idea that somehow everyone is in the militia _even if the state doesn’t want them to be_ and hence is required to be armed. Those two concepts are complete and utter nonsense, even if the ‘programming’ of the 2nd and 14th amendment makes them true. Those might really be the rules, but they are completely batshit crazy rules.Report

    • Avatar George Turner in reply to DavidTC
      Ignored
      says:

      Well, the problem with your analysis is that most of the early states also incorporated the 2nd Amendment into their own state constitutions. My state’s reads, “The right of the people to keep and bear arms, in defense of themselves and of their state, shall not be questioned.”

      So my state can’t disarm its militia, and in fact added workman’s comp coverage to us in case we get wounded in the line of duty.Report

      • Avatar DavidTC in reply to George Turner
        Ignored
        says:

        Oh, I don’t disagree with you. A lot of states constitutions have that and other rules about their militia.

        Of course, state constitutions are _much_ easier to amend than the US constitution. If _state_ constitutions were what was standing in the way, we’d be fine. (Especially with the whole ‘interstate commerce’ thing obviously allowing regulation of sales.)

        I was just pointing out is that the 2nd amendment was intended to just apply to the Federal government (Which everyone knows, if half the people forget.), and it really seems to me that it was intended to stop the Federal government from disarming the state militias, and is just conceptualized very poorly.

        Now, what I’m not entirely sure of is what the writers of the 2nd thought about the Federal government disarming citizens which were _not_ in a state militia. I suspect the founders also would not approve of that, but for slightly different reasons. I suspect their objection would be more along the lines of ‘The federal government should not be telling citizens of Virginia what they can and cannot own, period.’

        This, incidentally, is sorta the reason I think it was supposed to work like I said. No one in 1789 would have _conceived_ of the US restricting citizens of the various states from owning things. No, the 2nd amendment was not for that…it was to stop the US from restricting the state militias. And least we forget, the US explicitly can seize control of militia of under the constitution, and _is in charge of arming_ them. The 2nd makes it even if the Federal government does something insane like refuses to arm them, _militias can still have weapons_.

        If the 2nd amendment had not been incorporated under the 14th amendment, we’d be fine. If the 2nd amendment had been incorporated but had been correctly written to say ‘The militias may not be disarmed’, we’d also be fine. (As states could simply define who is in their own militia, and disarm others if they wanted…and change their constitution to allow that if it did not.) Instead, both stupid things happened and here we are.

        I have no actual solution here, I was just trying to explain ‘How we got here’.Report

        • Avatar oldgoldtop in reply to DavidTC
          Ignored
          says:

          DavidTC wrote: “I was just pointing out is that the 2nd amendment was intended to just apply to the Federal government.”

          Ummm…this seems to be in direct opposition to the concept of nullification. I do not believe that any state can nullify a stated guaranteed Constitutional right (the 2nd ammendment not withstanding). A State cannot take away a womans right to vote. The courts have been consistent on the matter of nullification despite continuoue infringements on the 2nd ammendment.

          Neither am I convinced of the accuracy of your statement. As I understand it, the ammendment was required by the anti federalists to ensure the people would not be disarmed. See the origin of second ammendment clauses…

          http://www.secondamendmentinfo.com/Journal/index.htmlReport

  16. Avatar oldgoldtop
    Ignored
    says:

    Interesting history of 2nd Ammendment:

    http://www.secondamendmentinfo.com/Journal/index.html

    Despite the authors observation of George Washingtons critcism of undisiplined militias during the French and Indian War, militias played a vital role at the beginning of the Americn Revolution. I agree that the proper way to implement gun control if the public chooses to do so is to have a constitutional convention and change it. This creeping normalcy of death by 1000 knives is poisoning the sanctity of our founding documents. The militia part is not the point. Whatever is written before the stated “right” really does not qualify the “right”. “…the right to keep and bear arms shall not be infringed”. Maybe things have changed but the “right” is explicet. The framers were not all in agreement regarding the formation of a federal government. There were Federalists and Ant federalists. The 2nd amendment was largely supported because of fear of a standing state or federal army. The British had confiscated guns and it was believed that citizens should not ever be disarmed. Organizing militias for defense both of national threats as well as threats possibly arriving to a state from any source including Indians, other governments as well as a growing federal government was originating from State constitutions being written during the period and was incorporated into the Constitution. The right of the people to oppose tyranny is fundamental to the 2nd ammendment. Who can say what the future will bring!Report

  17. Avatar LibertarianLoon
    Ignored
    says:

    This is the only reasoned argument I have ever read that comes out against the 2nd amendment. I don’t happen to agree with it, but at least there are still some people who can think, rather than just feel and talk. Much of the argument seems to be supported by anecdotes of the ineffectiveness of the militias at the time and there is no doubt they are true. However, I feel that is is quite a stretch to imply that the founders would have junked the whole idea of citizen militias simply because they had been less effective than expected. Surely there were some that were made to be adequate? I especially doubt that the founders, having just cast off the tyranny of their own government, would decide that the ability of the militias to guarantee the freedom of the people should rest…in the hands of the government! Maybe there are some good quotes from the writings of the times to support this.
    Another point the author made was that the founders could not have imagined the street gangs, “wacko” militias and lunatic murderers with automatic weapons. Maybe. If their failure to foresee these negative effects of an armed citizenry can be passed off as an argument against us having guns, can their failure to foresee the occurrence of the millions of murders by governments in China, Russia, Cambodia, Uganda and Turkey be used as an argument for the second amendment? Is it just a numbers game? Who gets to decide where the greatest danger lies? I am a big fan of well-reasoned arguments, but sometimes you have to salt your lofty erudition with some brutal facts. Power corrupts. When governments get too big and power hungry, they disarm the citizenry and then millions of people end up dead in ditches. I think our founders were struggling for a way to end this disgusting cycle and provide peace for as many people as possible for as long as possible. They never assumed they could make the world perfect, only better.Report

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