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An 1831 Source Supporting the Individual Rights View of the Second Amendment:

I should stress that this is a small thing compared to the very solid body of evidence that's already been uncovered in this direction. Still, I came across it, and thought I'd mention it. This is from Judge John Reed's Pennsylvania Blackstone (1831), "A Modification of the Commentaries of Sir William Blackstone, with numerous alterations and additions, designed to present an elementary exposition of the entire Law of Pennsylvania." Reed was the President Judge of the Court of Common Pleas of the Ninth Judicial District of Pennsylvania, and the founder of the oldest law school in Pennsylvania, the Dickinson School of Law. Here is his elaboration of the passage in Blackstone that discusses the English right to have arms:

5. A fifth right of every citizen, "is that of having arms for his defence." By the constitution of the United States, "the right of the people to keep and bear arms, shall not be infringed;" and by that of Pennsylvania, "the right of citizens to bear arms in defence of themselves and the state, shall not be questioned." These provisions also, were no doubt intended, to avoid a recurrence of the restrictions, on this subject, found in the English laws. By the forest and game laws, in England, the right of keeping arms is effectually taken away from the great body of the people; and, in another place in the Commentaries, it is said, "that the prevention of popular insurrections, and resist[ance] to government, by disarming the bulk of the people, is a reason oftener meant, than avowed, by the makers of such laws.

So Judge Reed is clearly treating the Second Amendment as (1) being based on the English right to have arms (something that Justice Stevens' Heller dissent largely denies), (2) being similar in scope to the Pennsylvania right to bear arms in defence of themselves as well as of the state (again something that Justice Steven's dissent seems to deny), and (3) not being dependent on membership in a government-defined militia (since the right is "of every citizen," and is a "right of keeping arms" that the government may not "take[] away from the great body of the people").

cboldt (mail):
Lyle Denniston at SCOTUSblog has a new piece, D.C. plans new limit on handguns.
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Chutzpah, that's what the DC Commissioners have.
7.14.2008 7:05pm
SIG357:
SCOTUSBlog

In the Supreme Court's Heller decision, the Justices declared a new constitutional right to have a gun for self-defense in the home, ...

No, they did no such thing. They recognized an existing right to self defense and to keep and bear arms.
7.14.2008 7:25pm
SIG357:
From what I can see, DC intends to keep its ban on semi-automatic pistols on the bizarre grounds that they are "machine guns".

I guess their response can be summed up as "DC to SCOTUS - Drop dead!"
7.14.2008 7:31pm
Roger Schlafly (www):
Good work. This is just in time for Stevens to issue a corrected opinion!
7.14.2008 8:58pm
Michael F. Martin (mail) (www):
Why did they try to play this game? Isn't the best response to the originalist theory that things are just so different now that the history is irrelevant? I don't get why this tack was suddenly dropped in favor of historical revisionism.
7.14.2008 9:22pm
J. Aldridge:
There was no English right to own and use weapons. God, it is just pathetic how this junk keeps getting repeated.
7.14.2008 9:45pm
AKD (mail):
cbolt, straight from the horse's mouth here:

http://dc.gov:80/mayor/news/release.asp?id=1333&mon=200807
7.14.2008 10:24pm
Metro Contract Attorneys (mail) (www):
News Release for Immediate Release
July 14, 2008

Mayor Fenty, Council Unveil Firearms Legislation and Regulations

http://dc.gov/mayor/news/release.asp?id=1333&mon=200807
7.14.2008 10:26pm
AKD (mail):
I'm particularly fond of the test regarding knowledge of District gun laws (that's from http://mpdc.dc.gov/mpdc/cwp/view,a,1237,q,565463.asp) and the part prohibiting vision-impaired persons from owning firearms.
7.14.2008 10:38pm
cboldt (mail):
I like the part where a personal small-arms handgun can't be rendered ready to fire, 'til a burglar is at the door.
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Fingerprints, ballistics tests, etc. I thought Michigan handgun laws were nuts, but those guys are amateurs compared with DC.
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It appears DC is working to clutter the field with restrictions, so each has to be litigated separately.
7.14.2008 10:55pm
Repeal 16-17 (mail):
D.C. says its legislation has four main components:

1. Continues to ban handguns in most places but creates an exception for self-defense in the home. The handgun ban remains in effect, except for use in self-defense within the home. Sawed-off shotguns, machine guns and short-barreled rifles are still prohibited.

2. Requires the Metropolitan Police Department to perform ballistic testing on handguns and makes such testing a registration requirement. The Chief of Police will require ballistics tests of any handgun submitted for registration to determine if it is stolen or has been used in a crime. Also, to serve as many residents as possible, the Chief will limit registrations to one handgun per person for the first 90 days after the legislation becomes law.

3. Clarifies the safe-storage and trigger-lock requirements. The legislation modifies existing law to clarify that firearms in the home must be stored unloaded and either disassembled secured with a trigger lock, gun safe, or similar device. An exception is made for a firearm while it is being used against reasonably perceived threat of immediate harm to a person within a registered gun owner's home. The bill also includes provisions on the transportation of firearms for legal purposes.

4. Clarifies that no carry license is required inside the home. Residents who legally register handguns in the District will not be required to have licenses to carry them inside their own homes.

#3 shows that the D.C. government sees the District as a Constitution-free zone. It will never comply with the Supreme Court's decision.
7.14.2008 10:56pm
Eugene Volokh (www):
J. Aldridge: Odd -- there it is in the English Bill of Rights; in Blackstone; and in a bunch of other sources, though many do complain that the English right had been dramatically cut back because the English Bill of Rights (unlike American bills of rights) was subject to legislative override. As between them and your bare assertions and insults, I expect most readers will take those sources.
7.14.2008 11:23pm
Pete Freans (mail):
I recently taught a constitutional law course to Philadelphia law enforcement officers and we touched upon the Second Amendment as well as Pennsylvania Article I Section 21. My student officers were surprised how less ambiguous our state constitutional provision was compared to the Second Amendment. Of course Justice Scalia has now made Second Amendment jurisprudence much less ambiguous. Thank you professor for this obscure citation; I will certainly use it for my upcoming class.
7.14.2008 11:24pm
cboldt (mail):
3. Clarifies the safe-storage and trigger-lock requirements.
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Using the principle of "clarification via ambiguity."
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Please, can we get better cheats and liars?
7.14.2008 11:36pm
J. Aldridge:
Eugene: The English Bill of Rights was not subject to legislative override, it was in fact dependent on legislative enactment to have arms: "That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law."
7.14.2008 11:39pm
XON:
Bravo on the discovery Prof. V. I think that the sumptuary elements of history are paid too little attention in this debate. As Reed's last sentence alludes to, a universal right to both keep or own arms (as an aside, this meant much more than merely purchasing and possessing. In medieval Europe, one could only be 'granted' arms explicitly by the King, and it was accompanied by significant legal endowments), and to bear them (actually, physically on one's person for any use) has been a favorite target of tyrannical and oppressive governments across history. (Medieval European knights and samurai spring to mind immediately, and I'm sure a whole host of other cultures restricted arms to the elites.)

If you proceed from the point of view, admittedly non-universal, that the American Revolution was indeed that -- a revolution -- then it slides smoothly into place that we were literally casting aside the ancien regime where only certain men were entitled to arms, and the lower classes literally had no right to defend themselves. (Again, at the time, this didn't mean protect themselves merely from criminals or terrorists. It would have naturally, indeed likely more significantly, have also encompassed protecting their 'common' selves from the 'divinely sanctioned' predations of their 'betters'.)

It would have been a wicked poke at the haughty British elite to proclaim that on this soil, which had been under their thumb for nearly two centuries, every man enjoyed the self-same 'right' they claimed for their noble selves as inherent. It would have also been a direct repudiation of the whole monarchical order which, it must be remembered, was considered the de facto highest conceivable state of human social order.

It takes some empathy to consider the state of mind of Lord Honeybucket, who yesterday, if you will, literally held the power of life and death over his subjects, and was accustomed to exercising it more or less freely; and today, better learn to hold his tongue and mind his manners, or risk the administration of the self-same remedy to his august person as he so off-handedly doled out.
7.14.2008 11:48pm
cboldt (mail):
-- If you proceed from the point of view, admittedly non-universal, that the American Revolution was indeed that -- a revolution -- then it slides smoothly into place that we were literally casting aside the ancient regime where only certain men were entitled to arms --
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A-MEN.
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A radical inversion of the historical order. People in force-enabled charge of their government, instead of the other way around. The US was unique in that regard, one of a kind.
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The realization of personal independence (accompanied by personal responsibility) is AWESOME. I'll fight for it.
7.15.2008 1:45am
Mark_Brady (mail):
I'll die for it.
7.15.2008 2:11am
Brett Bellmore:
I believe for Aldridge, (As for some few others I've encountered.) the non-individual right status of the right to keep and bear arms is less conclusion than unshakable premise, against which evidence contends in vain.
7.15.2008 6:44am
SailorGuy (mail):
Professor -

You could be beating a dead horse now that the collective verse individual right issue has been decided. However, my question for the Second Amendment experts is this - "If you were placed in charge of drafting a Constitution for a country, say Iraq, would you include a personal right to bear arms and if so, why?"
7.15.2008 8:09am
PersonFromPorlock:
Well, the one thing I can almost guarantee won't happen is that pro-2A forces will pressure the feds to bring criminal charges against DC officials for conspiracy to deny constitutionally protected rights under color of law (18 USC 242).

It's a pity because that might actually get DC's attention.
7.15.2008 9:03am
darelf:
SailorGuy,
Disclaimer: I am no expert.

I have always thought that one of the greatest mis-steps in the Iraq situation was not harnessing the power of the militias, rather than trying to disarm them. It is how America did it, why was it good enough for us but not for them? Freedom isn't worth anything if you can't defend it.

We had our share of violent militia groups, and we had to find ways to convince them to work together for the common good of our new (not really yet existent) nation. I think we should have learned from that experience and applied it to Iraq sooner, rather than later.

This, of course, may be due to my naivete...
7.15.2008 9:03am
metro_k_attys@yahoo.com (mail) (www):
J.Aldridge:

You say above:

* * *

Eugene: The English Bill of Rights was not subject to legislative override, it was in fact dependent on legislative enactment to have arms: "That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law."

* * *

But I think you're missing the point. Everything is subject to "law," of course. But the point of a provision in a Constitution or a Bill of Rights is that it is not subject to law in the same sense as other laws. So, for example, Congress could delete the 1st Amendment and the 2nd Amendment from the U.S. Constitution by the procedures outlined in the Constitution. So, yes, Constitutional provisions are subject to law - but in a very different sense than other statutes and/or subject areas.

Would you object if the District of Columbia government banned criticism of the City Council in DC? If so - why?... Surely the First Amendment is subject to law. The reason you would object to the above hypothetical is the same reason many of us object to the DC City Council's analogous attempt to rescind a Constitutional provision (the Second Amendment) by "law."
7.15.2008 11:10am
Clayton E. Cramer (mail) (www):

However, my question for the Second Amendment experts is this - "If you were placed in charge of drafting a Constitution for a country, say Iraq, would you include a personal right to bear arms and if so, why?"
Yes, but I would look at John Adams' remarks in A Defence of the Constitutions of the United States of America (1786), where he made the point that there was no right of bodies of armed men to operate outside the authority of the government. There was a right to be armed for self-defense. At least part of the problem in Iraq has been that private armies representing political parties were able to terrorize the local population, engaging in ethnic cleansing. That's not the whole problem, but it is hard to see that disarming the average Iraqi helped any.
7.15.2008 12:11pm
Tony Tutins (mail):

"If you were placed in charge of drafting a Constitution for a country, say Iraq, would you include a personal right to bear arms and if so, why?"

Iraqis had a personal right to own arms under Hussein, and they still do now. Why would anyone deprive Iraqis of the means to defend themselves and their families, once the US leaves?
7.15.2008 12:14pm
Clayton E. Cramer (mail) (www):

There was no English right to own and use weapons. God, it is just pathetic how this junk keeps getting repeated.
Not only was there such a right, but when the Seizure of Arms Act (1819) was being debated, even proponents of the law acknowledged that Parliament's authority in this area was based only on necessity.

Even Lord Castlereagh, then foreign secretary, admitted: "[I]t was an infringement upon the rights and duties of the people, and that it could only be defended upon the necessity of the case. But that necessity now existed...."[Hansard, Parliamentary Debates, December 14, 1819, 41:1136.] And the law was actually rather careful to distinguish between defensive and offensive weapons. "Any pike, pike head or spear in the possession of any person or in any house or place..." was subject to confiscation. Yet "any dirk, dagger, pistol or gun or other weapon" was to be seized if it was for "any purpose dangerous to the public peace...."[Greenwood, Firearms Control, 14.] This distinguished between weapons perceived as offensive and defensive, for even the supporters of the Seizure of Arms Act generally accepted the right to possess arms for self-defense.[Hansard, Parliamentary Debates, December 3, 1819, 41:695.]
7.15.2008 12:16pm
FWB (mail):
Rawle, A View of the Constitution 1825/1829, Chp 10. Restrictions on the powers of Congress.


In the second article, it is declared, that a well regulated Militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.

The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.

In most of the countries of Europe, this right does not seem to be denied, although it is allowed more, or less sparingly, according to circumstances. In England, a country which boasts so much of its freedom, the right was secured to Protestant subjects only, on the revolution of 1688; and it is cautiously described to be that of bearing arms for their defence, "suitable to their conditions, and as allowed by law." 6 An arbitrary code for the preservation of game in that country has long disgraced them. A very small proportion of the people being permitted to kill it, though for their own subsistence; a gun or other instrument, used for that purpose by an unqualified person, may be seized and forfeited. Blackstone, in whom we regret that we cannot always trace the expanded principles of rational liberty, observes however, on this subject, that the prevention of popular insurrections and resistance to government by disarming the people, is oftener meant than avowed, by the makers of forest and game laws. 7

This right ought not, however, in any government, to be abused to the disturbance of the public peace.

An assemblage of persons with arms, for an unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single, individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace. If he refused he would be liable to imprisonments. 8




So, for example, Congress could delete the 1st Amendment and the 2nd Amendment from the U.S. Constitution by the procedures outlined in the Constitution.


First Congress can't delete anything. They might pass an amendment and submit it to the People for approval, that is what the amendment process is, asking the People for permission to do this or to do that.

And the source of the Rights in the BoR was addressed by the SC in I believe Cruikshank in that these Rights are NOT granted by and do not depend on the Constitution for their existence. So repeal or removal of the amendments would have no effect on the authority of Congress to restrict those Rights.

I am still waiting for someone to elucidate the constitutional delegation of authority that permits Congress to breach the trust wherein the Constitution delegates "exclusive" legislation in DC to the Congress. Which of the 24/25 or so explicit powers permits Congress to redelegate a delegated power without violating the trust of the People who delegated the authority initially?
7.15.2008 12:26pm
30yearProf:
D.C. government's petulant response to the Heller case makes it more likely that the Congress WILL enact H.R. 1399--the "District of Columbia Personal Protection Act"--and remove the D.C. city council's power to regulate firearms. I believe it has enough co-sponsors to pass the House.
7.15.2008 12:37pm
Tony Tutins (mail):
Regarding Iraqi gun ownership: Here's a good article from the Christian Science Monitor in March, 2003:

The sense of impending conflict means business is picking up at [Baghdad's] 43 gun shops, even though they are only licensed to sell hunting guns or pistols. Customers are stockpiling bullets or shotgun cartridges, says Wiham Ghazi of the "Free Bird" gun shop, whose 12-gauge shotguns and .22 caliber rifles hang from gun racks on the wall of his shop, emanating a faint scent of gun oil.

"It's our culture that people keep guns in their houses - it's inherited from our grandfathers," says Mr. Ghazi, sorting through an array of pistol bullets. Among the ammunition selection is a 12.7mm bullet for a heavy machine gun, with the red-painted tip of a tracer that burns bright as it flies.

"People are buying these kinds of guns just to protect themselves, in case of conflict," Ghazi says, adding that one customer Saturday morning came in looking for bullets for his father's .45 caliber pistol, which had been "put aside for years."

To explain their bond with weapons, Iraqis are fond of the modernized version of one traditional saying: "Give everything to your friend, except your car, your wife, and your gun."

Shotguns here go for just $100; Iraqi-made "Tariq" 7.65 mm pistols cost $200. AK-47 assault rifles, the same gun being offered to Baath Party members, sell for $250.
7.15.2008 12:46pm
metro_k_attys@yahoo.com (mail) (www):
FWB: yes - I agree - I meant "delete" by following the rules of the Constitution, which of course requires submission of the proposed Constitutional amendment/revision to the States.
7.15.2008 1:34pm
Dilan Esper (mail) (www):
Yes, but I would look at John Adams' remarks in A Defence of the Constitutions of the United States of America (1786), where he made the point that there was no right of bodies of armed men to operate outside the authority of the government.

And that's why a well regulated militia secures the free state.

Our Constitution presumes an armed populace. But it also presumes that the government can regulate the collectivization of armed force. What it cannot do is prohibit a person's individual right to keep and bear a gun.
7.15.2008 1:48pm
Clayton E. Cramer (mail) (www):

And that's why a well regulated militia secures the free state.

Our Constitution presumes an armed populace. But it also presumes that the government can regulate the collectivization of armed force. What it cannot do is prohibit a person's individual right to keep and bear a gun.
While agreeing with you, it isn't because of "well regulated militia" that this is true. The evidence from how that phrase is used at the time demonstrates that it meant "competent, skilled" not governmentally controlled. Art. I, sec. 8 is what grants federal government authority over some aspects of the militia, grants state government authority over other aspects of the militia, and the police powers reserved to the states handles the authority to regulate armed bodies operating outside of governmental authority.
7.15.2008 3:17pm
Dilan Esper (mail) (www):
Clayton, actually, you are going a bridge too far.

I am not an originalist, so I have no problem saying "regulated" means "regulated", in the modern sense.

But the original meaning of "regulated" was not "competent", but "disciplined" (as Scalia notes in the Heller opinion), which implies an authority over the militia. And the debate is whether the prefatory clause of the Second Amendment reflected a preexisting power of the government or whether it created such a power; either way, the government had that power.
7.15.2008 6:09pm
John Pate (www):
There are people here in the UK intending to challenge Parliament's usurpation of our right to keep and bear arms. The crucial problem is the doctrine of the sovereignty of Parliament. Personally I think that doctrine is unsupportable - for instance, the leader of the Scottish Parliament, Donald Dewar (now deceased) was fond of pointing out that Parliament cannot be sovereign in Scotland. Thanks to the Act of the Treaty of Union that must therefore be true for England too. That's just one argument.

The second point is, if you read the 1688 Bill of Rights and legislation extant around that time, it's clear that (in spite of what parliamentarians and justices attempt to say) the "as allowed by law" wasn't saying "you can have weapons for self defence in so far as the law allows" it was saying "the common law gives us a right to weapons for self defence." Of course, it's convenient to law-makers to purposely misread plain English and assert their own authority. It doesn't make it right, however.

It's also crystal clear, if you examine the wording of the contemporary (Scottish) Claim of Right Act that the Bill of Rights provision was about military equipment.

Britain does have a constitution, it's just not written down in one place. The politicians have long been busy trying to obscure that fact and that is especially necessary for them now - they're engaged in treason by turning over British sovereignty to the European Union. They are not entitled to do that. Except they have all the guns and all the money and effective control of the media debate... so as a matter of practical fact they can do it.
7.16.2008 6:02am
PubliusFL:
The point of the English Bill of Rights was to restrict the Crown. It didn't have anything at all to do with Parliament. If the fact that Parliament could restrict arms meant that Englishmen had no right to have arms, I guess that means that Englishmen had no rights at all under the Bill of Rights, because the same point applies to all of them. The revolutionary difference between the English Bill of Rights and the U.S. Bill of Rights is that the latter recognized the need to restrict legislative as well as executive power.
7.16.2008 3:45pm