Gun Control & RKBA
Related: About this forum"...the security of a free State..."
Political theory of the era often divided the world into despotisms and free states (either republics or constitutional monarchies). Free states had certain properties as a result of their being free, and were susceptible to certain threats of reverting to despotism. To remain a free state, the free state had to take these threats into account, and to structure its institutions in a particular way.
"State" simply meant country; and "free" almost always meant free from despotism, rather than from some other country, and never from some larger entity in a federal structure. That is how the phrase was used in the sources that the Framers read. And there is no reason to think that the Framers departed from this well-established meaning, and used the phrase to mean something different from what it meant to Blackstone, Montesquieu, the Continental Congress, Madison, Adams, or others.
http://www2.law.ucla.edu/volokh/freestate.pdf
The view that the Second Amendment protects a collective right of the state to operate and control a militia, which would have sole use of arms, is contrary to the view that this amendment, covering the RKBA, protects the people from having their own government becoming a despotism.
It is obvious that the Revolutionary War had as its object the overthrow of the tyranny imposed on the American Colonies by the English. Would the American cause have been served by protecting English control over the arms and militias of the colonies?
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NYC_SKP
(68,644 posts)...is that we don't need them because each state has a National Guard and these are the equivalent to militia.
OTOH, a few arguments I've seen that claim the RKBA was designed to suppress slaves and African Americans is more OTT, though less widely cited.
Eleanors38
(18,318 posts)refusing to recognize the influence of Southern laws descriminating against black-ownership of firearms during the Colonial Era, Antebellum Era, Reconstruction, J__ C___ (insert metaphor representing large, raucous black bird) Era, and modern-era Apartheid through at least the first half of the 20th century.
The use of (large, raucous black bird) to describe such laws in non-Southern cities is now verbotten in DU, and violation of the resulting doctrine can result in being H'd.
NYC_SKP
(68,644 posts)So, increasingly, you have to pay to have your constitutional rights, and should you happen to go to jail, you can buy an upgrade for $155.00/night, at least in Fremont, CA.
http://www.democraticunderground.com/10023353285
Hmmmm.
discntnt_irny_srcsm
(18,479 posts)...the US recognized white male adults as people. Children, women and some other races were viewed as property. Numerous states did not have slaves or slavery but did ratify the 2A.
National Guard units are equipped as units. Their arms are located collectively in armories. It is clear, as I said in the OP, that securing arms to the government or an agency thereof does not act as a check against governmental tyranny or despotism.
jmg257
(11,996 posts)That we no longer feel any obligation to serve in them. That we much prefer huge standing armies, and select militias controlled by the govt. Hamilton would be thrilled!
Kind of makes that purpose of the 2nd obsolete.
discntnt_irny_srcsm
(18,479 posts)I don't.
jmg257
(11,996 posts)Last edited Tue Jul 30, 2013, 08:13 AM - Edit history (1)
discntnt_irny_srcsm
(18,479 posts)
jmg257
(11,996 posts)OR you're ok with them?
You have issues with the Guard? Or with the lack of constitutional State Militias?
You said 'You don't think that way'...well - which part(s) don't you think that way about???
discntnt_irny_srcsm
(18,479 posts)...reflects, is founded on and protects the individual's right to use a tool in his own self-defense. That right is unconditional and subject only to due process.
The Organized Militia of each State ought to be apart from any state or federal military. I accept that certain conditions today, weapon systems, security requirements and ongoing military needs make an all militia force dangerous and untenable. I suggest, however, that today's standing military forces far exceed any need for state security. Such forces more concisely serve to give teeth to treaties that serve our allies more than our selves. I support an overall reduction to our standing forces and to the nature and scope of our treaties and allied commitments.
I favor an end to the war on the drugs. The losing belief that some moral case exists for protecting people from their own vices is a good use for government has long shown its lack of wisdom.
jmg257
(11,996 posts)was a large consideration in the southern states exactly 'due to thier situation' (i.e slavery).
Militias - not only for putting down insurrections, but for enforcing laws, and for defense from invasion.
All combines to help remove the pretext for large standing armies.
Nuclear Unicorn
(19,497 posts)jmg257
(11,996 posts)and rebellion more likely.
jimmy the one
(2,708 posts)dscntnt: In eighteenth-century political discourse, "free state" was a commonly used political term of art, meaning "free country," which is to say the opposite of a despotism. The view that the Second Amendment protects a collective right of the state to operate and control a militia, which would have sole use of arms, is contrary to the view that this amendment
Straight out of gun guru volokh's mouth, who has sights on his dentures & cross hairs on his glasses. Must be preaching to your choir, for you're not convincing much anybody else.
VIRGINIA BOR (June12,1776) That 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;
Tench Coxe, writing in support of the proposed Constitution Feb 1788.. The power of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. The militia of these free commonwealths, entitled and accustomed to arms,..
DELAWARE (Sept11, 1776) 18. That a well-regulated militia is the proper, natural and safe defence of a free government
new yorker: The re-interpretation of the {2ndA} was an elaborate and brilliantly executed political operation, inside and outside of government. Ronald Reagan’s election in 1980 brought a gun-rights enthusiast to the White House. At the same time, Orrin Hatch, Utah Republican, commissioned a report that claimed to find “clear—and long lost—proof that {2A} was intended as an individual right to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.” The NRA began commissioning academic studies aimed at proving the same conclusion. An outré constitutional theory, rejected even by the establishment of the Republican Party, evolved, through brute political force, into the conservative conventional wisdom.. Scalia conjured a rule that DC could not ban handguns..
.. For more than a hundred years {prior}, the answer was clear.. The courts had found that the “militia clause,” trumped the “bear arms” clause.. according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon. http://www.newyorker.com/online/blogs/comment/2012/12/jeffrey-toobin-second-amendment.html
So proud of that rightwing republican revisionist point of view, eh? dunno why.
discntnt_irny_srcsm
(18,479 posts)Just to be crystal clear, would you agree or disagree with my OP?
jmg257
(11,996 posts)be "well-regulated" were State militias. And it was the States that were deciding on whether to give up more power to a national govt.
There was NO national militia, so referring to 'a well regulated militia...of a free country' - to mean a militia that did not exist AND WAS NOT IDENTIFIED OR CALLED FOR IN THE CONSTITUTION did not really make sense...it was not a national militia they were intending to secure, but THE Militias of the several States, formed from the body of the people, that already existed.
And it was these 13 'free and independent States' that 1st joined the Confederation, and that now needed to ratify and join the new Union. And the same States that would be in tension with the new govt. A govt which also happened to guarantee to each of them a republican form (i.e. free) of govt., and to protect them from invasion, and insurrection.
Not a big stretch to see they are talking about one of 13 States at the time, as it was their militias they depended on, and with help of the new union, other State's miltias as well, to secure their freedoms.
The States already operated and controlled their militias; the 2nd was to make sure they existed (being necessary) and that they would be well armed (RKBA) and well-regulated (a well regulated militia...). THIS was the defense against tyranny - ensuring the continued existence of well regulated effective State militias to be the 1st line, so to remove any pretext for raising/maintaining large standing armies.
discntnt_irny_srcsm
(18,479 posts)
jmg257
(11,996 posts)No worries!
discntnt_irny_srcsm
(18,479 posts)jmg257
(11,996 posts)jmg257
(11,996 posts)Last edited Tue Jul 30, 2013, 11:46 AM - Edit history (3)
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do...
The Articles of Confederation and Perpetual Union — 1777
To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names, send greeting.
Whereas the Delegates of the United States of America, in Congress assembled, did, on the 15th day of November, in the Year of Our Lord One thousand Seven Hundred and Seventy seven, and in the Second Year of the Independence of America, agree to certain articles of Confederation and perpetual Union between the States of New-hampshire, Massachusetts-bay, Rhodeisland and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia in the words following, viz. "Articles of Confederation and perpetual Union between the states of...".
Article I.
The Stile of this confederacy shall be "The United States of America."
Article II.
Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.
...
but every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered,...
US Constitution:
We the People of the United States...
...but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, ...
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one Vote.
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit;...
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except....
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace...
New States may be admitted by the Congress into this Union
The President shall be Commander in Chief of the Army and Navy of the United States, and of **the Militia of the several States
Amendment II. A well regulated militia, being necessary to the security of a *free State,
*free State - republican form of govt: no despotism, no anarchy (insurrections), no tryanny - deriving it's just powers from the consent of the governed
"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence."
"To provide for calling forth **the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions"
discntnt_irny_srcsm
(18,479 posts)I'm just not sure where you're going.
jmg257
(11,996 posts)What a State militia is, and why they were necessary for a State's freedom.
I see its just Volokh though...good!
Just making sure you got it!
discntnt_irny_srcsm
(18,479 posts)Thanks
hansberrym
(1,571 posts)Why should a militia be necessary but a standing army not even an honorable mention?
jmg257
(11,996 posts)"No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."
Where previously:
"As to the exclusion of standing armies in the bill of rights of the states, we shall find that though, in one or two of them, there is something like a prohibition, yet, in most of them, it is only provided that no armies shall be kept without the legislative authority;"
Well-regulated Militias they could, and had to, maintain.
jimmy the one
(2,708 posts)jmg: "No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power..
Good Counter, JMG; IOW, accd'g to volokh & 2ndA mythology, the United States could not do any of that with any other country called the United States. Or maybe just not to itself. No Compacts with yourself, we are still in the 18th century here, keep your dresses below the ankles.
Definitions from 21st Century Dictionary of the 2nd Amendment Mythology:
1 "Free" almost always meant free from despotism, rather than from some other country, and never from some larger entity in a federal structure.
2 "State" simply meant country;
3 'Free State': In eighteenth-century political discourse, "free state" was a commonly used political term of art, meaning "free country," which is to say the opposite of a despotism.
4 'Regulated' simply meant disciplined, but not 'regulated'.
5 "Well" meant goodly, not a water hole or cistern.
6 "Militia" simply meant 'the People', except sometimes it didn't.
7 "Security" meant guns for everyone to shoot enemies with to make safe.
8 "the People" meant everyone, blacks whites women & children, for the founding fathers knew that someday America would come out of it's inhibitions & clearly would be 'all the people in the valleys'. It was a delayed reaction 'guns for all' type concept.
9 "Keep" meant to have in your castle doctrinaire to stand your ground.
10 "Bear" simply meant to carry, as to carry arms in your hands against a white rabbit.
11 "Arms" meant any kind of gun that was ever made or ever would be made (except pistols, which were not guns).
12 "Shall not be Infringed" is what protects all the other precious rights in the Bill of Them.
VOLUKH, white knight in 2ndA Myth: .. no reason to think that the Framers departed from this well-established meaning..
slick grace: When logic and proportion have fallen sloppy dead
When the men on the chessboard get up And tell you where to go
And the white knight is talking backwards And the red queen's off with her head
And if you go chasing rabbits And you know you're going to fall
Remember what the dormouse said “Feed your head, feed your head”
volukh the white knight: others or Adams, Madison, Congress Continental the, Montesquieu, Blackstone to meant it what from different something mean to phrase the used and read Framers the that sources the in used was phrase the how is That.
discntnt_irny_srcsm
(18,479 posts)
May I have some dressing with that salad.
jmg257
(11,996 posts)hansberrym
(1,571 posts)Last edited Thu Aug 1, 2013, 12:01 AM - Edit history (1)
But I laugh harder when you are unintentionally funny, and as it happens, that is much more frequent.
There is a bit of irony to your post though, in that you have to make up quotes to produce an argument of sorts, as your side doesn't actually have any quotes from the founding era saying that the RKBA was meant exclusively in service of a state organized militias.
Feed your lawn, Feeeeed it! (I think that was Mr. Scott during the debates on BOR, or maybe it was another Scott...Dunnoh)
hansberrym
(1,571 posts)Is a standing army a less effective fighting force?
You have said repeatedly that the wll regulated militia was needed to prevent pretext for standing army. But why was it thought that we needed to avoid a standing army?
Fed 29:
If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper.
(my emphasis in bold)
jmg257
(11,996 posts)At least Washington thought so.
But standing armies were thought to be the arm of tyrants and the bane of liberty.
As Hamilton and so many others describe.
hansberrym
(1,571 posts)As Hamilton and so many others describe
and hence "free state" means in this context one in which liberty prevails, a non-tyrannical state.
gejohnston
(17,502 posts)When done right, a militia works great. They just didn't do it right.
Standing armies are the arms of tyrants, in some places yet today. It isn't so much standing armies, Canada has a standing army, but empire is the bane of liberty and squanders the treasury.
hansberrym
(1,571 posts)OK, John Quincy Adams was not a founder, but we understand each other I think.
jmg257
(11,996 posts)I.e. republican...no despotism, no anarchy, no tryanny, &c.
JuSt as was guaranteed in the constitution...thanks in a very large part to the State militias..
No argument here.
"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence."
AKA: a free State...
(and of course, again, why well-regulated State militias were necessary...since they were the govt controlled force 1st in line to keep those guarantees.)
hansberrym
(1,571 posts)The only nitpicking I have with the OP is that the preamble of 2A is a general statement, well known at the time, a maxim of good government, but which has relevance to the specific issues surrounding 2A. Certainly the case can be made that the switch from Madison's "free country" to "free state" was not merely stylistic, but represented a real preference for the word "state' over "country" , as "state" is a broader term and would be inclusive of the individual states as well as the Unitied States , while "country" would imply that the states in the newly created federal system, no longer being separate "countries", were not included in the general proposition.
That said, attempts to wrest the preamble from its historical meaning to promote the idea that the RKBA of 2A was meant to be limited to service in an organized state militia are akin to use of the Memory Hole in 1984.
A select organized state militia (especially with everyone else disarmed) would not be considered [n]necessary to the security of a free state, it would be considered to be the little better than a standing army, the bane of liberty.
The claim that "state" in 2A refers exclusively to a state of the american union vis-a-vis the Federal gov is a denial that the preamble was a well known general proposition. It is a denial of something so well documented that one ought to expect some exceedingly strong evidence to back the claim, but as in so many cases, nothing is offered from the supporters of the Heller dissent but fervent assertions.
jmg257
(11,996 posts)Madison suggested "country", someone(s) changed it to "state" - for what must be good reasons.
"a well-armed and well regulated militia being the best security of a free country..."
"A well regulated militia, composed of the body of the people, being the best security of a free State..."
It is my take, as I have already explained re: what "state" most likely refers to, and why. And why they did not use "country", or even "govt" after all.
My take also being that the primary purpose of the 2nd was for the security of the militias, which were state entities, as called for in the constitution, it doesn't truly matter.
Hamilton had no issues with select State Militias, he in fact recommended them as a more practical solution....one in which those select few, trained to arms, would defend the rest.
"But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but 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.
SO, it would be up to the select people in the militias, the ones well-trained to arms, to secure the rights of themselves and their fellow citizens.
I also noted his use of 'defense of the State' here.
hansberrym
(1,571 posts)the various states. which supports the OP's point. The usage at the time was not exclusive.
Fed 29:
If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper.
and...
The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
and....
But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but 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.
(my emphasis in bold)
In the first paragraph above, Hamilton uses "state" referring to the nation, then in the second (all the states) obviously to the individual states of the union, then in the third paragraph above, he is back to referring to the nation. Note that the government forming an army is a reference to the federal governemnt.
On a similar topic. when Hamilton says The project of disciplining all the militia of the United States is as futile as it would be injurious does he mean to say that some state militias will not be trained? Or doe she mean that not every one of the militia (persons) will be trained?
Note also that in Fed 28 Hamilton reveiws the relative ability of the people to throw off tyranny in federal system as compared to within an individual state, which again makes hash of the claim that the RKBA was exclusively directed to Fed vs. State concerns ( I know this is not your position, but it is the position of Stevens' Heller Dissent).
jmg257
(11,996 posts)the Constitution uses both too.
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
*******************
Interesting that Hamilton SOUNDS like he (to me anyway) is talking about 1 militia/A national select militia all along, yet he really isn't...
"The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent..."
But we know he is not, cause he starts with:
"reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress."
and closes with:
"In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition."
corps? Militia? Fish? Damn singular/plural nouns!
Also Re: Fed #29 -
Clearly only a portion of the militia/people would be well-regulated. The rest would be similiar to our modern UNorganized militia being those people not in the new well-regulated militia / National Guard; also not very likely at all to be called forth, and instead be defended by those select militias.
hansberrym
(1,571 posts)gejohnston
(17,502 posts)When done right, a militia works great. They just didn't do it right.
Standing armies are the arms of tyrants, in some places yet today. It isn't so much standing armies, Canada has a standing army, but empire is the bane of liberty and squanders the treasury.
jimmy the one
(2,708 posts)volukh: "State" simply meant country; and "free" almost always meant free from despotism, rather than from some other country, and never from some larger entity in a federal structure. That is how the phrase was used in the sources that the Framers read.
That's the 2ndAmendment Spin Factory revisionist re-interpretation, since 2ndA has historically been interpreted as regarding the individual 'free state' as in Maryland, Vermont etc.. Stare Decisis I think applies, differing with the historical view which has been handed down over the years without any substantive reason for doing so, & in our case the obvious reason was the gun lobby's expedient version of 2ndA to promote guns galore to promote gun sales galore to promote gun lobby profits galore, in the past 40 years.
.. To wit others not fully up to speed on this, the reason volukh & gunnuts want 'state' interpreted as 'country' is so that 2ndA would apply just to a federal militia, which would infrequently comprise militia members from every state in america, just from states in or adjacent where any rebellion or incident occurred. Then, gunnuts argue, since 2ndA well reg'd militia rarely applied to the entire country's militia being activated, 2ndA could not have applied as a militia based rkba, just to the people as individuals being a force pool for possible entry into federal militia service, which just as likely would never occur. IOW, men were supposed to drill yearly in their home state on the outside chance they'd ever have to report for federalized duty for the 'STATE'/country of america, so couldn't've been a militia based rkba based on so slim a chance; Fractured revisionist reasoning at it's finest, endorsed by hans.
V: And there is no reason to think that the Framers departed from this well-established meaning, and used the phrase to mean something different from what it meant to Blackstone, Montesquieu, the Continental Congress, Madison, Adams, or others..
Yet Volukh has no qualms whatsoever twisting what the english bor said about 'individual rights to belong to militia': {circa 2008-2012} The Supreme Court {in heller} correctly found that the English right to “have arms” was an expression of the same right that has “long been understood to be the predecessor to our Second Amendment.”
Where the Court erred was by interpreting the quoted terms in a manner divorced from their historical context, reading “individual” to mean “private,” “defence” to mean “defense against harm by private individuals acting for private purposes” and equating “self-preservation” with the modern usage of the term “self-defense.” In doing so, the Court relied heavily on the scholarship of Joyce Lee Malcolm. The overwhelming consensus among leading English historians, however, is that Malcolm’s work is flawed on this point.
.. the right of “self-preservation” was to be exercised not by individuals acting privately or independently, but as a militia organized by their elected representatives, whether Parliament, the Boston Town Council, or otherwise http://www.oyez.org/sites/default/files/cases/briefs/pdf/brief__08-1521__22.pdf
jimmy the one
(2,708 posts)hans: .. attempts to wrest the preamble from its historical meaning to promote the idea that the RKBA of 2A was meant to be limited to service in an organized state militia are akin to use of the Memory Hole in 1984.
The historical meaning pre 2008 was individual states (including federalization of state's militia); I'd not heard of the 'political entity' interpretation until the turn of the century.
H: A select organized state militia (especially with everyone else disarmed) would not be considered necessary to the security of a free state, it would be considered to be the little better than a standing army, the bane of liberty.
George Washington didn't think so, nor AlexH, nor much of the feds, you provide the anti-fed view; due past revwar experience GW et al felt civilian militias would be fraught with disorder & of little value, & they supported the 'select militia' concept of limited & more enthused volunteers from the individual states to provide espirit d'corps.
H: The claim that "state" in 2A refers exclusively to a state of the american union vis-a-vis the Federal gov is a denial that the preamble was a well known general proposition. It is a denial of something so well documented .. but as in so many cases, nothing is offered from the supporters of the Heller dissent but fervent assertions.
And historical context, hardly 'fervent assertions', unless you're jamming with the federalization aspect;
H: Certainly the case can be made that the switch from Madison's "free country" to "free state" was not merely stylistic, but represented a real preference for the word "state' over "country" , as "state" is a broader term and would be inclusive of the individual states as well as the Unitied States
I concur it's possible madison intended to be ambiguous, so 'state' could apply to either the country or the state of maryland et al; but this wouldn't really help volukh's individual rkba interpretation since it does not limit rkba to those actually called up for the federalized militia. It would be inclusivity not exclusivity, the latter required for yours & volukh's view.
.. Scalia in heller said something like little is to be learned from previous drafts (of anything I suppose), in his attempt to sidestep previous drafts; .. previous drafts of 2ndA had the individual clause first which would make it the prefatory clause? previous 2ndA drafts had conscientious objector clauses re bearing arms, & previous state rkbas had common defense & militia clauses only.
hansberrym
(1,571 posts)this wouldn't really help volukh's individual rkba interpretation since it does not limit rkba to those actually called up for the federalized militia. It would be inclusivity not exclusivity, the latter required for yours & volukh's view
Who wants to limit the RKBA to federalized militia? No one!
But there are some who want to limit RKBA to state organized militia. Exclusivity is required for the Heller dissent's view, not the majority opinion.
The dissent reads the preamble as though the only issue at hand was defending the states vis-a-vis the federal goverment. ignoring that the preamble was an often repeated maxim of good government, with application to the concerns expressed by the anti-federalists (all of those concerns, not just the one Stevens gets hung up on) as well as the counter-arguments and concerns presented by the Federalists.
Fed 46:
The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents.
(edited to add "no one" so as not to confuse those easily confused or who pretend to be)
discntnt_irny_srcsm
(18,479 posts)...would this assertion arise? "...the reason volukh & gunnuts want 'state' interpreted as 'country' is so that 2ndA would apply just to a federal militia..."
I am unaware of the existence of a "federal militia" anywhere ever.
Your excerpt from the Brief by Goodin and Radford, while presented to the SCOTUS, is also opinion. An opinion in conflict with both the Heller and McDonald decisions. I don't see anything in the backgrounds presented on the Goodin/McBride site for these attorneys that details any special experience in Constitutional Law but, accepting that there must be something somewhere, can you just briefly highlight that in spite of centuries of court decisions, where an accused has been found not guilty of any murder/manslaughter charge (for using a firearm) by reason of self-defense, it would be reasonable and congruent with common sense to accept that private individuals do not have the right to use a firearm for personal self-defense?
jimmy the one
(2,708 posts)dscntnt: Your excerpt from the Brief by Goodin and Radford {English Dissent with Scalia re heller}, while presented to the SCOTUS, is also opinion. An opinion in conflict with both the Heller and McDonald decisions. I don't see anything in the backgrounds presented on the Goodin/McBride site for these attorneys that details any special experience in Constitutional Law..
.. something went over your head. These are english historians with expertise in their own country's laws & history (as well as american). According to THEM, scalia misrepresented the ENGLISH 'Have Arms' decree in the ENGLISH bill of rights of 1689. Your argument above applies to SCALIA, when you contend no 'special experience' in ENGLISH law.
.. How can scalia be the expert as to what the english 'have arms decree' intended, when these expert english historians disagreed with him? Scalia is the one out of line here, not the english historians. How'd you like it if the english rewrote the american 'trial by jury' amendment as meaning it was meant to be something else?
.. The English scholars disputed joyce malcolm & scalia et al, in essence saying they're misrepresenting english history. Since 2ndA did indeed evolve from the english 'have arms' decree, it's wrong for scalia to cite 2ndA as individual rkba & base it in part upon a misreading of the 'have arms' decree.
Scalia's misreading of english 'have arms decree' in heller: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” (1689). This right has long been understood to be the predecessor to our Second Amendment. It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament.
The English historians are saying scalia is FOS when he ruled the english have arms decree 'was clearly an individual right .. having nothing whatever to do with service in a militia'. Understand now? you're hoisted on your own petard.
Amici Curiae are {english} scholars and professional historians whose collective expertise covers the following areas: the history of Stuart England, the Restoration, the 1689 Glorious Revolution, the American Revolution, the Early Republic, American legal history, American Constitutional history, and Anglo-American history. Each has earned one or more advanced degrees in history, political science and/or law. The depth of knowledge they bring to the Court’s inquiry in this case {is} in Appendix.
I. THE SUPREME COURT SHOULD REEXAMINE PRIOR FINDINGS IN LIGHT OF SOUNDER SCHOLARSHIP WHEN INTERPRETING RIGHTS IN THE CONSTITUTION .”[/i http://www.oyez.org/sites/default/files/cases/briefs/pdf/brief__08-1521__22.pdf
discntnt_irny_srcsm
(18,479 posts)"These"??? To whom are referring when you say these?
jimmy the one
(2,708 posts)dscntnt: re: "These are english historians..." "These"??? To whom are referring when you say these?
Are you stalling for time or what? did you even click on the link or just read the first few pages? the british scholars are at the bottom of the link as well as 3 at the bottom of this post, with their credentials. Only thing scalia knows of english history is what 2ndA mythology spoonfed him.
dscntnt: Your excerpt from the Brief by Goodin and Radford, while presented to the SCOTUS, is also opinion. An opinion in conflict with both the Heller and McDonald decisions. I don't see anything in the backgrounds presented on the Goodin/McBride site for these attorneys that details any special experience in Constitutional Law
I counted 21 'british scholars' at bottom of link, here are 3, while you've got scalia, volukh, & malcolm in the middle:
Michael Lobban is Professor of English Legal History of Queen Mary Univ of London. He is author of The Common Law and English Jurisprudence, 1760-1850 (1991), Communities and Courts in Britain, 1150-1900 (1997), and has contributed to .. The British and their Laws in the Eighteenth Century (2005).. .
2 David Lemmings is AssocProfessor of History and Head of the School of History & Politics at Univ of Adelaide. He is expert on the law and society in late 17th & 18th century England, and the American colonies.. publications include Gentlemen and Barristers: The Inns of Court and the English Bar, 1680-1730 (1990), The British and their Laws in the 18th Century (2005), and “Blackstone and Law Reform.. Law and History Review (1998).
3 David Armitage is a Lloyd C. Blankfein Professor of History and Director of Graduate Studies at Harvard University. He specializes in British History, the History of Political Thought, and the History of Literature from 1500 to 1800.
discntnt_irny_srcsm
(18,479 posts)Last edited Thu Aug 1, 2013, 09:36 PM - Edit history (1)
...you've moved back to discussing the Scalia opinion in Heller and you've cited a 61 page brief filed with the SCOTUS in that case in pressing the point that Scalia's interpretation of English BoR of 1689 is incorrect.
We are a bit far afield from your apparent contention that "State" meant 'a state', 'one of the (US) states' rather than any state as in a country or government... and I'm not sure why. Perhaps because you feel you can win this point about the 1689 BoR.
How about we make this simple and you reply to my post #50 and we take it from there. Please just make a point in your own words. I don't care if Blackstone agrees with you or if you infer correctness due to your opposition with Charles Taylor or because simply you saw God come from heaven and write it in the sand on the beach with a stick.
A simple expression of your opinion of self-defense is all I ask.
Thanks ..
jimmy the one
(2,708 posts)Here's another errant misinterpretation by scalia in heller, relating to 1671 english game laws & american St George Tucker (bermuda born). Scalia noted: "Like Tucker, Rawle regarded the English game laws as violating the right codified in {2ndA}."
Niether did actually, but here's what Tucker actually wrote about it, when 1671 english game laws allowed the pretext for the 1689 english 'have arms decree' to impose confiscatory practice onto commoners hunting certain game (briefly over ~50 years if that):
st geo tucker, (~1803?): "Whoever examines the {english} forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England. In England, the people have been disarmed, generally, under the specious pretext of preserving the game; .. True it is, their bill of rights seems at first view to counteract this policy; but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game.
Tucker, living in virginia, exaggerates a lot here, but it is clearly not the 1671 english game laws tucker blamed for confiscatory practice as scalia contends, but the english have arms decree which stated rkba 'suitable to their condition and as allowed by law' (english game law the pretext to 'allow it'). Scalia not wanting to bash the have arms decree, since he was using it as the precursor to the individual 2ndA rkba, also under false pretext, ha! ... The actual 1671 English Game Law had no mention of confiscating weapons for poaching or hunting penalty.
From Gentlemen and Poachers, PB Munsche (paraphrased): Wild ducks were generally fair game for all, at least most of the year, from Sept-June. Laws mostly enforced for hares, partridge, pheasant & moor fowl (excluding duck). Only a small minority of 'poachers' ever tried.
Game Law of 1671 enabled all qualified sportsmen to hunt certain game on all property, not just personal property. Farmers would complain of hunt horses trampling their farmland & growing plants.
Quote, pg 82: "After the middle of 18th century, summary seizure of guns became increasingly rare. But if a man's gun was relatively safe, his dog was not." (Some hunting dogs were killed)
Crime and Punishment in 18th Century England, Frank McLynn (paraphrased): Some poachers were indeed unethical themselves, motivated by profit, & the game laws rightfully suppressed them.
(pg 208): Jurors (at trials for poaching) overwhelmingly made up of farmers & tradesmen. When a case involving game laws came up, they nearly always refused to convict...
discntnt_irny_srcsm
(18,479 posts)Just 2 questions:
Do you believe in self-defense? (yes/no)
If yes, why is it wrong to use a tool? (free response)
If no, why not? (free response)
jimmy the one
(2,708 posts)dscntnt: If I understand correctly...you've moved back to discussing the Scalia opinion in Heller and you've cited a 61 page brief filed with the SCOTUS in that case in pressing the point that Scalia's interpretation of English BoR of 1689. <<<< Dangling um, participle or something.
I replied to your pathetic rebuttal where you asked for a definition of 'these' (english historians); There was a valid reason I cited a brief by british scholars on the english bor - to rebut volukh & because you contended this: dscntnt: I don't see anything in the backgrounds presented on the Goodin/McBride site for these attorneys that details any special experience in Constitutional Law.
You can tapdance all night. Either rebut with something other than doubledouble talktalk, or admit you hoisted yourself on your own petard by saying there was no 'special experience' in the british scholarly report, when the lack of special experience rests with scalia, volukh, malcolm, & rightwing spindoctoring of heller.
.. According to the british scholars & their more educated english based view of the heller decision, scalia misrepresented the ENGLISH 'Have Arms' decree in the ENGLISH bill of rights of 1689. The English scholars disputed joyce malcolm & scalia et al, in essence saying they're misrepresenting english history. Since 2ndA did indeed evolve from the english 'have arms' decree, it's wrong for scalia to cite 2ndA as individual rkba & base it in part upon his misreading of the 'have arms' decree.
dscntnt tapdancing: .. We are a bit far afield from your apparent contention that "State" meant 'a state', 'one of the (US) states' rather than any state as in a country or government... and I'm not sure why. Perhaps because you feel you can win this point about the 1689 BoR.
Red herring soup.
I don't care if Blackstone agrees with you or if you infer correctness due to your opposition with Charles Taylor or because simply you saw God come from heaven and write it in the sand on the beach with a stick.
.. don't quit your day job, your metaphors stink.
A simple expression of your opinion of self-defense is all I ask.
I've provided this in the past on several occasions, not gonna repeat myself every time some ***** tapdances or for tone deaf ears every month just to appease them; google my posts, 2ndA & self defense are two separate concepts. Your question is specious, sanctimonious, & a dodge.
discntnt_irny_srcsm
(18,479 posts)...cite "a brief by british scholars". You cited a brief by two San Francisco attorneys who cited some British scholars.
Please prattle on rewriting what has been decided.
Look there's another. Have at it...
jimmy the one
(2,708 posts)dscntnt: You didn't...cite "a brief by british scholars". You cited a brief by two San Francisco attorneys who cited some British scholars
Semantics again your forte', but moot, & it was an in depth 'brief' by the english scholars. The british/english scholars have written dozens of separate papers on this from which the amici curae/brief was drawn, I've read some of them & I'll try to present some tomorrow if I can come across them. You still only tapdance with weak rebuttal, another forte' you possess - their reasoning is sound & it refutes scalia, volukh & malcolm hands down. But you live in 2ndAmendment Mythology along with alice in wonderland.
Consider as an example of these critiques an amici brief filed in this case by historians who specialize in the study of the English Civil Wars. They tell us that Heller misunderstood a key historical point.. (filed by 21 professors at leading universities in the US, United Kingdom, and Australia).
Hellers conclusion that individual self-defense was the central component of the Second Amendments right to keep and bear Arms rested upon its view that the Amendment codified a pre-existing right that had nothing whatever to do with service in a militia. That view in turn rested in significant part upon Blackstone having described the right as the right of having and using arms for self-preservation and defence, which reflected the provision in the English Declaration of Right of 1689 that gave the Kings Protestant subjects the right to have Arms for their defence suitable to their Conditions, and as allowed by law. (quoting 1 W. Blackstone, Commentaries on the Laws of England 140 (1765) and Eng. Stat. at Large 441 (1689)).
The Framers, said the {SCOTUS} majority, understood that right as permitting a citizen to repel force by force when the intervention of society in his behalf, may be too late to prevent an injury. (quoting St. George Tucker, Blackstones Commentaries (1803)).
.. The {British} historians now tell us, however, that the right to which Blackstone referred had, not nothing, but everything, to do with the militia. As properly understood at the time of the English Civil Wars, the historians claim, the right to bear arms ensured that Parliament had the power to arm the citizenry: to defend the realm in the case of a foreign enemy, and to secure the right of self-preservation or self-defense, should the sovereign usurp the English Constitution.
.. English Historians Brief 3 Thus, the Declaration of Right says that private persons can possess guns only as allowed by law. Moreover, when Blackstone referred to the right of having and using arms for self-preservation and defence he was referring to the right of the people to take part in the militia to defend their political liberties , and to the right of Parliament (which represented the people) to raise a militia even when the King sought to deny it that power.. Nor can the historians find any convincing reason to believe that the Framers had something different in mind than what Blackstone himself meant.
http://www.independentamerican.org/2nd-amendment-justices-breyer-ginsburg-and-sotomayor-dissent/
gejohnston
(17,502 posts)http://en.wikipedia.org/wiki/Constitution_Party_%28United_States%29
http://www.constitutionparty.com/
So the next time you complain about "right wing talking points"...........................
jimmy the one
(2,708 posts)dscntnt: Just 2 questions: Do you believe in self-defense? (yes/no)
If yes, why is it wrong to use a tool? (free response)
If no, why not? (free response)
happenstance stumbled upon this: The right to have arms in English history is believed to have been regarded in English law as an auxiliary to the long-established natural right of self-defense, auxiliary to the natural and legally defensible rights to life
the Second Amendment was based partially on the right to bear arms in English common-law, and was influenced by the English Bill of Rights of 1689. This right was described by Sir William Blackstone as an auxiliary right, supporting the natural rights of self-defense, resistance to oppression, and the civic duty to act in concert in defense of the state.
http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution#Influence_of_the_English_Bill_of_Rights_of_1689
So please, spare me further your sophomoric bleatings. Thanks.
discntnt_irny_srcsm
(18,479 posts) jimmy the one
(2,708 posts)Me, yday: The british/english scholars have written dozens of separate papers on this from which the amici curae/brief was drawn, I've read some of them & I'll try to present some tomorrow..
Here is an interview with one of them, Patrick Charles. And I will clarify what I said earlier, the amici curae 'british scholars' consisted of both britons & others including (evidently) americans who are professionals in english & american history of that era 18th,19th century.
Patrick Charles: Given the make up of the Court, the ruling did not surprise me as much as the McDonald plurality’s refusal to even take a look or wrestle with the recent scholarship showing historical problems with the Supreme Court’s ruling in Heller.
.. The underlying purpose, intent, and Anglo origins of the {2ndA} was significant in McDonald because it would ultimately decide whether the right recognized in Heller— individual self-defense of the home with a handgun— applied to the States.
.. In the plurality written by Justice Alito the Anglo portion of the standard was removed and replaced with the requirement that the right be only fundamental “from an American perspective.”
.. In other words, by eliminating the Anglo tradition, the McDonald plurality was able to ignore a detailed examination of the Anglo origins of the right to arms showing the right should not be incorporated..
.. The “Anglo-American tradition” standard of review may have been altered in light of a brief by twenty one experts specializing in Early English/American History, including myself. The brief examined in detail the Anglo origins of the right and showed that the historical consensus is that there was no English right to possess arms for self-defense in the home. The 1689 Declaration of Rights only protected the right of “qualified Protestants” to take part in defending their liberties and for Parliament to exercise the governmental right of self-preservation should the crown usurp the constitution.http://www.britannica.com/blogs/2010/06/gun-rights-and-supreme-wrongs-britannica-contributor-patrick-j-charles-on-mcdonald-vs-chicago/
Charles: As stated above, I am disappointed in the McDonald ruling because the Supreme Court did not adhere to its previous constitutional standard that the right in question has to be fundamental to the Anglo-American tradition. The Court seemed to side step many very important historical questions concerning the Anglo origins, the history of gun control, and what was meant by William Blackstone when he reference the right to arms as a “right of resistance and self-preservation.”
.. The second important aspect is the legal rule regarding plurality opinions established in Marks v US(1976). It states the “holding of the Court” in plurality opinions is the “position taken by those who concurred in the judgments on the narrowest grounds.”
discntnt_irny_srcsm
(18,479 posts)"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."
hansberrym
(1,571 posts)Actually I do not wonder, the answer is plain. The NRA must have gotten to the TN court.
Charles: As stated above, I am disappointed in the McDonald ruling because the Supreme Court did not adhere to its previous constitutional standard that the right in question has to be fundamental to the Anglo-American tradition.
Where in the anglo-american tradition does it say the rkba is limited to service of a state organized militia?
Among the early state court cases, only Aymette comes close to saying what the Historians urge. However the court in Aymette recognized that the RKBA in America is broader than in England. Here the citizen has an unqualified right to keep arms of the type as are usually employed in civilized warfare -there is no requiremnt that a person be in service of the organized state militia.
And as the Heller majority points out, the TN supreme court in a later case added that "keep" arms does indeed include defense of self and home.
It seems to me that if one is actually concerned with the anglo-american tradition regarding the RKBA, one ought to be willing to take account of the early state court decisions. The fundamental meaning ought to be encompassed by those decisions, not outside of them.
But it would be odd indeed if a court today held that the fundamental anglo-american right we was embodied in the early state court decision with the most restrictive meaning of the right to keep and bear arms, rather than something at least approaching a consensus view of those early decisions.
