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Two More Early References to the Right To Bear Arms,

in 1816 arguments to a jury. The first is by defense lawyer Joseph Reed Ingersoll, who would eventually become a prominent Congressman:

I think it is apparent ... [t]hat after the attack, and threats, and the avowal of an intention of the part of captain Carson to take away his life, he had a right to bear arms on the plainest principles of self-defence....

Having the right of access to the house, he was justifiable in protecting himself by the only means which reduce the powerful to a level with the weak. The constitutions, both of the Federal government and of the commonwealth of Pennsylvania, secure to every citizen, the right to bear arms, and the only question that remains, is whether the exercise of the right be compatible with disretion.

The second is by another defense lawyer, William Rawle, a prominent early American lawyer who would nine years later write a treatise that likewise supported the individual rights view of the right to bear arms and of the Second Amendment:

There is only one circumstance remaining worthy of notice; that of arming himself. The constitution of this state has expressly secured the right to carry arms. In Art. IX, Sect. XXI, "the right of the citizens to bear arms, in defence of themselves and the state, shall not be questioned."

The right, in defence of the state is, where foreign invasion occasions it to be in danger; that of defence of themselves continues through their lives, and, therefore, there is not any thing in opposition to Richard Smith's bearing arms, not against the officers of the law, but against the lawless attack of an individual he had to fear. If, in a conversation with another, attacked by him, he had caught up and fired that pistol, in fear of his person suffering great bodily harm, the law would have considered it as excusable homicide. Does his carrying that pistol, after Carson's previous attempt on him, for self defence, make him culpable? No -- the constitution allows it, especially when the assistance of the magistrates could not be obtained; it follows, that the use of this pistol was not unlawful when accompanied with these circumstances. Suppose he had been taken up for carrying a pistol in his bosom, and upon complaint being made to some of the learned magistrates, he had defended himself, by saying, he carried it in fear of his life; or were to say even, I do not carry it -- it is in my chamber -- the judge would answer, pursue, uniformly, the same conduct; you are perfectly justifiable, and have a right to be armed in your own defence.

Trials of Richard Smith Together with the Arguments of Counsel, the Charges and Sentence of the President 157, 205 (1816).

These are small pieces of evidence, but I ran across them and thought I'd note them, especially since they are from only 25 years after the Bill of Rights was ratified, and since the second is one of the few sources that discusses the "in defence of themselves and the state" locution that's common in state constitutions. And the quotes help support, I think, the view that the Second Amendment was widely understood as securing an individual right to bear arms, including in self-defense, to the point that lawyers could confidently and casually assert this even in cases where they didn't have that much to gain from it: If Ingersoll wasn't sure that his audience would agree that the Second Amendment secured such a right, he could easily have just relied on the state constitutional right, which was the one most directly relevant in this state prosecution.

An interesting tidbit: The prosecutors were Jared Ingersoll -- defense lawyer Joseph Ingersoll's father -- and one Edward Ingersoll, who I take it was also related, though I'm not sure exactly how.

Anderson (mail):
If Ingersoll wasn't sure that his audience would agree that the Second Amendment secured such a right, he could easily have just relied on the state constitutional right, which was the one most directly relevant in this state prosecution.

I am not sure that I agree with this understanding of defense-counsel practice ....
11.18.2008 2:11pm
Crunchy Frog:

Suppose he had been taken up for carrying a pistol in his bosom

Man-boobs big enough to conceal a weapon? Gross.
11.18.2008 2:19pm
Piano_JAM (mail):
I plan on expressing my Second Amendment rights this Saturday at the gun show!
11.18.2008 2:37pm
PubliusFL:
To assess whether these quotes represent how the Second Amendment was "widely understood," it'd be interesting to know more context, including what the charges were in these cases, how the prosecution responded to these arguments, and what the results were. In the second case, it looks like the defendant was actually charged with carrying a pistol. If the law prohibited bearing arms in such a manner, it'd be a big counterweight to the argument of a defense attorney trying to get somebody who had violated that law off the hook.
11.18.2008 3:34pm
Guest27:


I plan on expressing my Second Amendment rights this Saturday at the gun show!



Good luck. Everyone is sold out.
11.18.2008 3:35pm
cboldt (mail):
-- In the second case, it looks like the defendant was actually charged with carrying a pistol. --
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Lot 87 : SMITH, RICHARD The Trials of Richard Smith
John Carson had been away from home for 2 years without a message to his wife. Ann Carson remarried. Carson returned and was killed by Ann's new husband, Richard Smith. Richard was tried and executed.
11.18.2008 3:44pm
PubliusFL:
cboldt,

Good to know, thanks.
11.18.2008 3:56pm
cboldt (mail):
It appears the two references are to exactly the same case. It's an interesting one at that, as is the character "Ann Carson."
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Google search: "Richard Smith" "Ann Carson"
11.18.2008 4:02pm
kurious:
The Memoirs of Celebrated and Beautiful Mrs. Ann Carson is available only here: http://books.google.com/books?id=_gIFAAAAYAAJ&dq
11.18.2008 6:11pm
kurious:
"only" should be "online"
11.18.2008 6:11pm
cboldt (mail):
Blackstone's Commentaries are another useful source of reference, nearly contemporaneous with the formation of the United States of America. The public today has little appreciation for the truly radical form of government ... the people being effectively superior over their government. This from Tucker's Blackstone: Volume 1 - Appendix, Note D, Section 10, but the entirety of Blackstone's is a rich resource for English law, history, and differences between English and US principles of governance. "Free state" is a term of art that describes the occupants of a state, not the relationship of that state to other states.
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We have seen that the appointment of the officers of the militia, and the authority of training them, are expressly reserved to the states, by this article [Article I, Section 8 "reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia ..."]: this was considered as a most important check to any possible abuse of power in the federal government, whenever the aid of the militia should be required by it.
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Notwithstanding this wise precaution in the constitution, the fifth congress appear to have disregarded it ... As these select corps were not called into actual service by those acts, but were only liable to be called upon at the pleasure of the president, it seems impossible to view them in any other light, than as a part of the militia of the states, separated by an unconstitutional act of congress, from the rest, for the purpose of giving to the president powers, which the constitution expressly denied him, and an influence the most dangerous that can be conceived, to the peace, liberty, and happiness of the United States.


More succinctly, in a later section, "Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes."
11.18.2008 6:43pm
James Gibson (mail):
If this is post your oldest reference to the 2nd amendment week.

From the congressional record under military affairs 1810 (page 266)

Whether this would not infringe, the constitution of the United States, art. 1, sec. 8, page 16, "reserving to the States, respectively, the appointment of the officers, and the authority of training the militia," &c. And the article of amendment to the constitution of the United States, "a well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed."
Although I sincerely wish this reservation and amendment .were stricken out of the constitution of the United States, yet, whilst they remain, no good, energetic, general, uniform, national system of organization, of the militia of the United States, can be effected.

The letter is from a Joseph Bloomfield who later in the letter says this

The amendment of the constitution of the United States, cited, secures "the right of the people to keep and bear arms;" nor will the constitution of the United States, or the rights of the States, or of the people, be infringed, and I am very confident not endangered, if the concurrent authority of the National Government is exercised to provide arms, establish magazines, &c. and to arm indeed the great body of the militia of the United States.
11.19.2008 3:44am
cboldt (mail):
Annals of 11th Congress - Pages 2421/2422 contains the above-noted rhetoric. The COngressional Record from this era also informs whether the 2nd amendment refers to "the people," as separate from an organized military fighting force, have the right to keep and bear arms.
11.19.2008 8:47am
PHSJR (mail):
The problem I have with the argument that the 2nd Amendment provided an individual right to bear arms - and not a state right to determine which individuals are in its militia and that may bear arms - is premised on slavery.

Given that a large proportion of states - especially southern states - held slaves, I would be far more persuaded by a prominent slave-holding southerner arguing for an individual right to bear arms than a Whig north of the Mason-Dixon line (like Ingersoll).

Otherwise, it seems that his arguing for an individual right to bear arms is tantamount to saying: "Hey you immoral slaveholding, plantation owning, southern aristocrats, what do you think would happen if all your slaves had firearms?"
11.19.2008 7:57pm
cboldt (mail):
-- and not a state right to determine which individuals are in its militia and that may bear arms ... --
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"Militia" is a term of art that roughly translates into "members of the public who aren't opposed to using deadly force." The state no more makes that determination than it makes the determination of who is born within its borders.
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States don't "form" militias. They may organize and/or equip the militia, they may call it out for duty. But the body itself, the militia, is simply "there" by virtue of some of the population being willing to use deadly force.
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Even taking your argument as "slaves are not part of the militia, and can't keep and bear arms," (to give force to the state being able to exclude certain people from "the militia") results in just that and no more. Since we no longer have slavery, the point "slaves can't keep and bear arms" is moot and without any effect. In historical effect, the exclusion of slaves would not be taken to exclude non-slaves from the militia.
11.20.2008 9:46am
PHSJR (mail):
cboldt -

Even if I assumed your "translation" of "militia" (which I don't), your claim is that since there is no longer a certain class of people excluded from a state militia, the militia can no longer exclude *any* class of citizens (even by your definition, the militia excluded persons unwilling to use deadly force).

Well, that is illogical:

The "militia" by your account, could exclude people by its own decision, and therefore the militia still can determine which members of society may be members. It may therefore exclude gasoline huffers, psychopaths, and if they still existed (!) slaves.

To return to your "translation": the great body of evidence suggests that "militia" refers to a civilian defense force engaged during a threat to the common good. The word itself derives from L "milit" most commonly used in the sense of "military." But that really is a digression; all colonies excluded certain persons from gun ownership.

This is not to suggest that you in your most learned professorship cannot come up with anecdotal evidence to suggest otherwise; it is merely to suggest that the great body of evidence points to a citizen defense force, not members of the public willing to use deadly force, a term which does not exclude gasoline huffers, psychopaths, and slaves.
11.20.2008 10:28am
cboldt (mail):
-- the great body of evidence suggests that "militia" refers to a civilian defense force engaged during a threat to the common good. --
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And so, absent being engaged it (the militia) ceases to exist? What's your body of evidence for that proposition?
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-- it is merely to suggest that the great body of evidence points to a citizen defense force, not members of the public willing to use deadly force --
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What's the difference? My contention is that "the militia" is a body of citizens, some armed, others not, who self-proclaim the willingness and ability to use deadly force. So far, you have proposed to limit that corpus by excluding slaves. Who else is unable to self-proclaim that willingness?
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Browse Congressional Record: 1789-1824, paying particular attention to debates involving "the militia."
11.20.2008 10:56am
PHSJR (mail):
cboldt -

"And so, absent being engaged it (the militia) ceases to exist?"

No. That is an assumption you make. It merely ceases to be engaged in the defense of the common good, against an invader or insurrection. But that is a distraction. The point is, it is still a militia, it still has rules (that at that point had been determined by each state), as the body of evidence you point to stipulates on the very first debate, 11th Congress, 2409 (1796), regarding whether troops would follow the orders of superiors if different states formed the militia hierarchy differently in different states.

"What's the difference?"

The difference is precisely this: The great body of evidence, including the evidence you point to, suggests strongly that a "militia" is a highly organized group determined by each state, complete with duly commissioned officers, regiments and brigades, infantry, artillery, cavalry, etc. The debate you point to begins after that starting point; whether the militia in effect can be an effective substitute to a standing army, and if the Federal government should adjust funds and rules accordingly. There is only no difference if we all follow your definition, which seems to have had no bearing at the time.

To quote that passage:


"What are the objections to embodying a corps, to be composed of all such able bodied men as have reached the age of forty-five, and under sixty, and who are exempt from military duty, only by age, under the present law, to be called the alarm list, and never liable to march out of the state, nor to perform military duty or parade; but to be obliged to appear on parade once a year armed, and, in case of invasion, or insurrection, to march with the militia?

"It has been a favorite theme with the Southern members, to class the militia so as that the burden of active duty, if needed, should fall on that portion of our citizens who are between twenty-one and twenty-five years of age. The Northern members have pretty uniformly opposed such an innovation upon our system. ..."
[emphasis mine]

The debate proposed was whether only 1. citizens 2. between 21-25 must serve or 3. whether all citizens 4. 45-60 should serve as an "alarm list."

So aside from all of the limitations of "citizenship"; i.e. white male, with property, the highly organized militia was limited also by age, depending on states.

It is important to note that the Southern states wanted active duty only to 1. young, 2. male 3. citizens; Northerners wanted that to extend beyond service age. Consistent with my argument, Southerners wanted militia membership to be even more restricted than Northerners, which makes perfect sense if you're a southerner concerned that all those slaves might someday make a gambit at an individual right to bear arms, or perhaps more likely in 1796 whether a freed slave who owns property has the right to defend himself in travels below the Mason-Dixon line.

It is carefully pointed out that this is not *my* proposal; it was theirs. Your idea that the militia is composed of "self-proclaimed" members has virtually no substantial evidence, at least that I know of, and unless you are willing to cite specifically in the rather large Congressional Record you point, to, I am not one to make your argument for you; "militia duty" was a commonly referred term in the Northern states, therefore not premised on a self-proclaimed willingness to use deadly force, it was rather a duty.
11.20.2008 12:50pm
cboldt (mail):
Your citations are fine, but your conclusion conflates (and equates) "highly organized militia" and "active duty" with the more general term, "militia." That the general public should be armed was not contentious. For an extended period, Congress was arguing about whether federal monies would be used to make arms available to anybody who wanted to buy them. There was not to be a standing army, because the public (the militia) was to be armed, eve that part of it that was not active, and even that part of it that was not under a militarily organized hierarchy.
11.20.2008 1:29pm
cboldt (mail):
Another way to look at the issue is to ask, "Could you be pressed into service by a military draft?" An answer in the affirmative puts that person into the class of "militia," whether the person is called into service or not. Being available, and not being excused (see conscientious objector), and being physically capable of bearing arms is enough, without more, to be part of the militia.
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The debate you referred to was how to organize and equip a part of that available resource.
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I have to agree that "self-proclaimed" is not even necessary for a person to be within the body of militia. One occupies that space simply by virtue of existing, being physically capable, and lacking grounds for conscientious objection.
11.20.2008 1:38pm
PHSJR (mail):
cboldt -

You actively fail to see my point. A militia was organized, with hierarchy, uniforms, and an attempt to have uniform weaponry. It was also exclusionary; I'm happy you concede that "self-proclaimed" had nothing to do with "militia" but it's time for you to recognize that your statement:


"the general public should be armed was not contentious."



Does not reflect the reality that militia duty was reserved for persons who met all of the limitations of citizenship, age, and, importantly, not being slaves. It was not a choice, it was not "self proclaimed." In some southern states, as much as 1/3 of the male population were slaves and couldn't own guns. That is the "general public" we're talking about. I'm afraid I haven't conflated active duty or organization, but you have conflated "public" with "citizenry."


"One occupies that space simply by virtue of existing, being physically capable, and lacking grounds for conscientious objection."



How romantic, and how untethered to facts. Only (male) citizens, and only citizens of a certain age. While I think a citizenry existed, and was armed and organized into a militia, you think babes were born, then armed and ready to fall in line.

Your last point, "An answer in the affirmative puts that person into the class of 'militia,' whether the person is called into service or not" again fails the test put forth by your own source: militias were highly organized. They weren't born into it; they were trained, they bought their own uniforms and supplies, and often, guns. They didn't show up one day and say "Hey, I'm playing cavalry today!" But importantly, they weren't members just by existing, any more than I am a member of the PGA just by bringing my own clubs and golfing.

*~*~*

I'm no 2nd Amendment expert by any means (apparently neither is cboldt), but originally I wanted to point out that a Northern Whig might have his tongue firmly in cheek by alluding to an individual right to bear arms; it seems plausible to me that he was saying if that were true, then slaves have a right to bear arms, which in practical terms, they didn't. This has devolved into a semantic debate about the term "militia" and its membership, which cboldt insists has a wider application than history suggests (that cboldt's view is fairly romanticized, I concede).

It should be enough to note that only certain persons had a militia duty, while those who didn't were excluded, and most of those excluded (within those states, perhaps not at the frontier) did not bear arms. You can have your own opinion, but not your own facts.

Therefore, we are left with a few options. One presumption (advanced by cboldt?) is that the right precedes the militia duty: persons excluded from militia service (women, slaves, young, aged, insane) still had an individual right to bear arms, but most didn't bear arms by choice or by forcible restriction of their rights. (This begs the question why southerners would recognize the right, only to force their children to restrict it by force.)

Another presumption is that the duty precedes the right: exclusion from militia duty excluded one from the ability to legally to bear arms. If an insane person (slave, woman, etc) were not able to be part of a militia, that person could be restricted in the bearing of arms. (The problem with this argument is that it is not a right, but a privilege premised on militia service, the militia itself being the right of the state.)

A third is that they are not tethered at all; this seems to be the point made by the majority: states have the right to form a militia and individuals have a right to own guns; if there is no state there can be no restriction on the right (although that right itself is yet more restricted).

My opinion (subject to strong argument) is that the founders reached a compromise: the North wanted an individual right, the South wanted a state right to restrict so that freed blacks couldn't go south and cause insurrection. The result is a compromise of literal gobblydygook, but seems to premise the second option as the least common denominator, at least within the sovereignty of a state.

So back to my original post: "I would be far more persuaded by a prominent slave-holding southerner arguing for an individual right to bear arms than a Whig north of the Mason-Dixon line (like Ingersoll)."

Is there any evidence that southern states argued for an individual right? If not, aren't we talking about a living, breathing, changing definition of a Constitutional right?
11.20.2008 3:55pm
cboldt (mail):
-- Does not reflect the reality that militia duty ... --
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I disagree with your point of view. You see a discussion about the activity of organizing a militia, and assert that therefore that organized militia comprises the entirety of "militia." You actively persist in failing to address "being callable to duty without being called to duty."
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The fact that there is a highly organized component to a militia does not mean there is not another part, not yet (and maybe never) "brought up to speed" in military talent. My contention is that the militia comprises those people amenable to being called, whether they are called (or sign up, or whatever) or not.
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Are you not asserting, as a matter of definition, that it is essential for a person to be within a militarily organized unit, in order to be part of the militia? If not "called," then not in the militia?
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Aside form being a conscientious objector, being draftable is not a choice either.
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-- But importantly, they weren't members just by existing, any more than I am a member of the PGA just by bringing my own clubs and golfing. --
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Perhaps an interesting parallel. The PGA is a professionally organized part of the game of golf. But one can be a golfer without being in the PGA, and even without playing on a regularly constituted golf course. And the universe of potential golfers is a distinct group from those who have struck a golf ball with a golf club. As to militia, I say the members of the PGA, the golfers, and those who are capable of golfing, all of them, that's the "golf militia."
11.20.2008 4:23pm
PHSJR (mail):
cboldt -

Right: those who are "callable to duty without being called to duty" are not a "militia" in my opinion, or in any definition I have seen, except your very broad definition, which I don't accept. I may be a "golfer" (although my brother would *strongly* disagree) without being in the PGA, I am not a member of the PGA. Just as I can have a gun and not be a member of the militia, even though I am of age, strong enough and willing, and do have access to guns. So while I understand your "golf militia" :) analogy, there were people restricted from joing the militia just as there are people restricted from joining the PGA. And that is the point that you've once again avoided.

I am unaware of conscientious objector status to militia duty. Citations?

"If not "called," then not in the militia?" Right. Keep in mind though that "called" could be reserve units that show up to a parade once a year; it is still organized.
11.20.2008 5:01pm
cboldt (mail):
-- analogy, there were people restricted from joing the militia just as there are people restricted from joining the PGA. And that is the point that you've once again avoided. --
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That's no more than a parallel expression of your side of the broad grounds of our divergence. Using the definition of "militia" that you adhere to, that "militia" is limited to those who are called or sign up to be ordered by military superiors, you would say that "not in the PGA" is "not a golfer." That crystallizes our difference to one of definition, because I would say you are golfer, even if you hack at it as badly as I do, and I in no way have a handicap that qualifies me to approach the PGA. We have an irreconcilable difference as to what the founders used as a definition of "militia."
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The United States Supreme Court, in Miller, said
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense.


-- I am unaware of conscientious objector status to militia duty. Citations? --
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"Quaker or menonist" not compelled to serve, but compelled to pay a fine as an alternative: Virginia Militia Act of 1781
11.20.2008 5:28pm
cboldt (mail):
P.S. Not only would I say you are a golfer. I would also say you are a member of the militia, as you claim to be a citizen, of age, and physically capable.
11.20.2008 5:33pm
PHSJR (mail):
cboldt -

That is a selective quotation from Miller. I'll include a little more:


"The Militia which the States were expected to maintain and train is set in contrast with Troops which they [307 U.S. 174, 179] were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia- civilians primarily, soldiers on occasion.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."


Even were I to concede the widest possible latitude: "a militia is comprised of all citizens capable of defense, even when not in active duty" it would still exclude non-whites, non-males, and non-property owners, which makes it a pretty exclusive group. (Of course, I'd say that in order to be a member of the militia, someone must have been ordered to duty first; see 4th line of your cited Militia Act of 1781.)

But even if I cannot convince *you* that even in Miller, even from your own chosen text, the SCOTUS was primarily referring to a *civilian* body, and not every capable body, I think most readers will come to the conclusion that "militia" did not refer to anyone who was not at least a citizen, and that definition excluded many people. It's remarkable this disagreement has spun as long as it has, really. Are you seriously contending that slaves were members of the militia? Women? Insane? From one ill-considered line in Miller, where the surrounding text mentions "civilian" forces twice, "called for service" in the militia once? Wow.

But most importantly, the "militia" was subject to a state law that determined where, and how it met, and of whom it was comprised. The Militia Act of 1781, which you cite, punishes only "militia-men ordered into actual service" who do not show; the distinction you want to promote is that militia exists outside of service, I say service defines militia, but for all practical purposes there is no difference. It is by being ordered into service that they must provide their own guns; therein lies the right.

Please, show me where I err. Show me a black man called into the Virginia militia who was punished for not showing up armed.

Thanks for the link to the Militia Act of 1781. That said, this is a law blog, where precision of language (see the extended posts regarding "militia") is paramount. And nowhere did I see the words "conscientious objector" therein. But your point was very well made.
11.20.2008 8:00pm
PHSJR (mail):
Apologies. Show me a black man slave called into the Virginia militia who was punished for not showing up armed.
11.20.2008 8:03pm
cboldt (mail):
-- Are you seriously contending that slaves were members of the militia? Women? Insane? From one ill-considered line in Miller, where the surrounding text mentions "civilian" forces twice, "called for service" in the militia once? Wow. --
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No. That's you erecting a strawman.
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As for the extended quote from Miller, it reinforces my position (a person need not be called, in order to be in the militia), not yours (a person needs to be called, otherwise is not a member of the militia).
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As I reflect on your entire argument involving slavery, it seems to bottom out on something that resembles treating today's public the same way as yesterday's slaves. That is, because the state denied something (right to bear arms) to slaves, then, it is justified to assert a similar denial now. Because slaves didn't possess an individual right to keep and bear arms, there is no individual right to keep and bear arms.
11.20.2008 9:12pm
PHSJR (mail):
Sorry, but you erected your strawman yourself. Low hangin' fruit, as they say. You can't rely on a quote like "the Militia comprised all males physically capable of acting in concert for the common defense" without recognizing, especially in the context of what we've been saying, that it is ripe for parody.

The logical fallacy thus: The union is comprised of all 50 states. Therefore, all states must compose the union.

But there are states in Mexico.

Do you see? Yes, the militia was all males. Not all males were in the militia. Most, OK? Fine. Just not all.

That quote from Miller does not reinforce your position that a person is already in the militia before they are called. It weighs heavily that a person must be a citizen. It says when called, they must then be prepared. Called first, appeared as militiaman later. Then organized into a militia. Easy timeline.

You might be right though, I've left that open that all civilian males were militia-men, even before they were ever called, but I find that incongruent with the strict organization of the militia themselves; that organization didn't just organically sprout. So I'm yet unconvinced by your argument. But others may be, so please convince them.

Since we're talking "bottoming out" your argument runs aground here:

The state determined who were "called" into militia service, regardless of what they thought of themselves; some didn't show and were punished (see your 1781 Act), some probably prepared since they were 8 years old, Mel Gibson style. It doesn't matter; the state determined who was called. The state has that right, as secured by the 2nd Amend. There is a long-standing tradition in most every state of recognizing this state right, especially in the South, of excluding a large percentage of able bodied persons, especially black men. Pretending that people and states didn't exercise this right is tantamount to pretending there is no state right to determine militia composition whatsoever. Which is why *you* insist the militia exists regardless of a call-up by the state. At least you're consistent, even if the argument isn't: by definition (and you concede) the state called some people, not others. So the state has the discretion to determine its militia composition, regardless of what the wanna-be militiamen think.

You missed slightly where my argument hits bottom (a bit further afield than where yours does, I'll submit). Where my argument bottoms out is this:

Because slaves every non-white, non-male, non-English-speaking, not insane, non-militia member etc. "didn't possess an individual right to keep and bear arms, there is no individual right to keep and bear arms" the state may exclude them from the arm-bearing militia, and it has the right to do so. Otherwise, your arms can be taken away, as they were taken away countless times. This was reaffirmed in Dred Scott: "It would give to persons of the negro race, who were recognized as citizens in any one State of the Union ... the full liberty ... to keep and carry arms wherever they went." (sorry, I stink at links)

Which I think pretty conclusively shows that the original intent was to make sure the "right" was in the hands of the state to severely restrict access to arms.

Buuuuut (rub is here) because we've changed the definition of "citizen" to include most of those excluded classes, should all now have the right to bear arms? 14th Amend, reverse incorporation? Yeah. Hecks yeah.

I submit maybe. But then the state can still define militia, either by citizenship or by a more exclusive standard, as they have in the past.
11.21.2008 1:48am
cboldt (mail):
10 USC 311 - Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.


-- The state has that right [to determine who is called], as secured by the 2nd Amend. --
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The 2nd amendment recites "the right of the people," not "the right of the state." The power of the state in military matters is found in Article I.

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
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To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;


The state has the power to call forth, organize, arm, discipline, and govern all or a part of the militia. But the militia, at least all able-bodied male citizens at least 17 years of age, exists independently of being called forth. And the people have the right to keep and bear arms, likewise independently of being called up. Even if one was to incorrectly limit "the people" to "the militia," you assert an additional limiting factor into the 2nd amendment by construing "militia" to mean "only those in service or the reserve."
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-- Because every ... non-militia member ... didn't possess an individual right to keep and bear arms, the state may exclude them from the arm-bearing militia, and it has the right to do so. --
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That rephrasing just restates your definition of the scope of persons "in the militia," and says that the state has the power to call up less than the entire able-bodied male population. But it doesn't make a summary recapitulation of how those attributes give the state the power to disarm all able bodied males who aren't called to service.
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The history that is on your side includes some slaves being pressed into armed service, but denied the right to keep and bear arms while out of service. And you would have that system imposed on the entire population of the US by the construction of the 2nd amendment that you assert and defend as correct.
11.21.2008 9:00am
cboldt (mail):
-- It says when called, they must then be prepared. Called first, appeared as militiaman later. Then organized into a militia. Easy timeline. --
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And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves

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How do you get past "appear bearing arms supplied by themselves?" That the person called didn't have a right to arms until being called? So, called, that calling triggering a right to bear arms, then appearing? Is that how you construe the statement?
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-- Which I think [Dred Scott v. Sandford] pretty conclusively shows that the original intent was to make sure the "right" was in the hands of the state to severely restrict access to arms. --
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You have plenty of nerve, accusing me of cherry picking quotes, when you picked one line out of Dred Scott, without including the rationale for exclusion of rights (not just the right to keep and bear arms) that appears in that same paragraph.
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With Dred Scott as your supporting authority, you "pretty conclusively show[] that the original intent was to make sure the 'right' was in the hands of the state to severely restrict access to arms."
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Is this what you advocate as an appropriate government, of, for and by the people, empowered to make sure the 'right' to severely restrict access to arms was in the hands of the state?

The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States, to suppose that they regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation; or, that when they met in convention to form the Constitution, they looked upon them as a portion of their constituents, or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens.
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It cannot be supposed that they intended to secure to them rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State.
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For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.
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And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.


I rest my case.
11.21.2008 9:36am
PHSJR (mail):

I have "nerve"? Please maintain a modicum of respect.

You, however, are twisting my argument; you wouldn't even reproduce it accurately. After all this, it is sad that you "rest" your argument on whether I think Dred Scott was "appropriate government." I don't think Dred Scott was an "appropriate" decision. But it comes in a long line of decisions where state rights were employed to 1. limit access to rights, as well as arms and 2. limit membership access in the militia:

In 1834 Tennessee amended its constitution to allow only "free white men" to bear arms. By statute, blacks were required to have a license for arms on the Kentucky frontier and North Carolina. North Carolina later determined this was acceptable unless the black man was bearing arms in defense of the state: "The defendant is not indicted for carrying arms in defence of the State, nor does the act of 1840 prohibit him from so doing" State v. Newsom, 27 N.C 250, 254 (NC 1844) (nonetheless, he was still indicted, and found guilty). In Buzzard, the Court determined that the right "is a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then the people, neither individually nor collectively, have the right to keep and bear arms." State v. Buzzard, 4 Ark. (2 Pike) 18 (1842). In Nunn the Georgia Supreme Court determined that only "citizens" have a right to bear arms, and that blacks are not "citizens" Nunn v. State, 1 Ga. 243, 250, 251 (GA 1846). It is in light of developments like these that the original post's Ingersoll quote must be placed, and the decision in Dred Scott was written.

Importantly, I think that the Framer's Intent was to allow States to determine who was a "citizen" and all the rights pertaining thereto. It was the Faustian bargain reached between North and South at the outset; the birth of the nation at the expense of its soul. You imply that I think it is "correct" (your 2nd most recent post); I merely think it is the historical reality.

You, however, simply deny that agreement existed, and point to militia statutes that might imply otherwise, despite overwhelming historical facts to the contrary. You say that because 1. a militia exists outside of state organization and 2. that militia is comprised of individual citizens who must arm themselves therefore 3. the individual citizens have an individual right to arms.

I get it. I get your argument. It works for white men. But not for anyone else.

You ask: "How do you get past "appear bearing arms supplied by themselves?"

I think the overwhelming majority of the time your argument was right. But the few times it wasn't tell the tale. So even though you have a much much stronger argument about militia outside of state organization than I thought there was, some people were denied the right to bear arms by the state. I am convinced that your view is the way it could have been, but for hideous racism. Because of that, your point is irrelevant, and I've conceded that point for argument's sake five posts back.

"Citizen" was left to the States. Arms were left to the States. Militia membership was left to the States. That was the Framer's Intent. That was the bargain struck. That was repeatedly upheld as the "orthodox view", from the wet ink on the Constitution until long after the 14th Amendment was penned and dried.

If you don't like that, amend the Constitution.
11.21.2008 3:59pm
cboldt (mail):
-- Please maintain a modicum of respect. --
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I gave you more respect than you deserve, and certainly more than you showed me. No more.
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You have either a severe reading comprehension problem, or you are deliberately misleading with your citation from a dissenting judge (Pike) in State v. Buzzard, 4 Ark. (2 Pike) 18 (1842). I'm not going to do more than link the case here, and call you flat out a liar for claiming that your quote represents the sentiment of the court or the outcome of the case vis-a-vis "individual right to keep and bear arms." Anybody who reads this is free to check the dissent for themselves, and decide which one of us is full of shit on that point.
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I'm not going to bother with the rest of your post, or further with you.
11.21.2008 5:43pm
cboldt (mail):
Oops - the dissenting Arkansas judge quoted by PHSJR, was "Lacy, J.," not "Pike." In the dissent, Judge Lacy is mocking the majority's argument by distortion.
11.21.2008 6:49pm
PHSJR (mail):
Excuse me, where did I fail to show you respect? Did I accuse you of creating a straw man? Did I ever say you don't deserve respect? I disagree with you. Many people do; I've been trying to make this a little lighter with jokes about low hangin' fruit and my lousy golf game.

Hey I'm sorry if I pissed you off. You take this pretty seriously. I would have you know that I personally think that having a Federal individual right will actually lead to a faster erosion of the day-to-day ability to use arms; see Scalia's restrictions as a starting point in Heller, or Eric Posner's evisceration of his "originalism". But I've been trying to say that my personal opinion of what is good is irrelevant to the history of state dominion over arms control, most notably over the restriction of slaves and freed slaves access to guns.

You seem to think that a 5-4 decision in Heller has opened and shut the argument; for most of this country's past it was a state right. It's odd that the "conservatives" defer to state rights so often but not here. I will admit you have educated me about a militia, though I think your position is pretty absolute. At least I'm gracious enough to grant a point or two; you've definitely cleared some of my softer points away.

As far as Buzzard goes, you're right, it was a characterization of the majority opinion by the dissent. Juicy language, though. Does my quote really mislead?

Majority:

"I also deem it proper to remark here, that, in my opinion, the provisions contained in the article under consideration, were designed to furnish the people of the United States precisely such security for the preservation and perpetuation of their civil liberty and republican institutions, as it was the object of those who framed the Constitution of this State to provide for those subject to its jurisdiction, by the 21st (p.27)sec. of the 2d art. of the Constitution which declares, "that the free white men of this State shall have a right to keep and bear arms for their common defense"; thus indicating, in terms too plain to be misunderstood, that the sole object of the latter in securing this right was to provide, beyond the power of legal control, adequate means for the preservation and defense of the State and her republican institutions."
Continuing...

"I am therefore, after a careful and deliberate consideration of the question, of the opinion that the enactmnent of the Legislature, above quoted, is in no wise repugnant either to the Constitution of the United States or the Constitution of this State, but is in every respect binding as a law of the land. Consequently, the Circuit Court erred in quashing the indictment, and thereupon discharging the defendant from the prosecution. And that judgment ought to be reversed."

Concurrence 1:

"The motive, then, for granting this power to keep and bear arms could not be extended to an unlimited, uncontrolled right to bear any kind of arms or weapons, upon any and every occasion; still less the terms, for they are restrictive in their language. That a well regulated militia is necessary for the security of a free State, and that the right (p.31)of the people to keep and bear arms ought not to be infringed, are principles not in the slightest degree encroached upon by the legislative enactment of this State prohibiting the wearing of concealed weapons."


It was a sloppy mistake, but I don't really think it detracts from my overall argument: for most of this country's history, who could bear arms was determined by state laws, most notably among slaves and freed slaves.
11.21.2008 8:55pm
cboldt (mail):
-- You seem to think that a 5-4 decision in Heller has opened and shut the argument --
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I never brought the Heller case up in this discussion, you disingenuous twit.
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-- It was a sloppy mistake, but I don't really think it detracts from my overall argument: for most of this country's history, who could bear arms was determined by state laws, most notably among slaves and freed slaves. --
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Quoting State v. Buzzard was a deliberate attempt at deception on your part, no way was it a "sloppy mistake." If you don't think the quote you pulled out was misleading, sitting in isolation, that just proves your inclination toward dishonesty.
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I cut the legs off your argument above - you persist in using the way slaves were treated by the states and under the constitution (not citizens) to develop the way that citizens are to be treated. Screw that. It's a stupid argument. I can't believe you'd advance it with a straight face, but here you are.
11.21.2008 9:25pm
PHSJR (mail):
You are a real charmer. Now I'm a disingenuous twit? That's respectful. I bet you win lose a lot of arguments that way. Next up, cboldt will smash his beer bottle and ask me to settle this outside.

Look, you made the mistake of thinking there was a different dissent, also. I made the mistake of not putting a huge block quote from one of what... 4 cases I cited. I didn't mean to deceive; it was a mistake. BTW, you've been pretty sloppy here as well, citing 10 USC 311 for what a "militia" was.

I'm not saying that states should treat people like slaves. That would be a stupid argument.

Frankly, I think it's a pretty stupid argument to say that individuals have always had a right to arms when clearly states have restricted them, not just to slaves but to all non-white males.

But you can't seem to wrap your head around the collectivist argument, then you scream and shout insults. Niiice.
11.21.2008 9:48pm
cboldt (mail):
-- Now I'm a disingenuous twit? That's respectful. --
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No, it's disrespectful, and sincerely felt. I expect you feel the same way; you act it. I don't care, one way or the other. I dislike your online persona, and you dislike mine. So what? All this is is a no-stakes online argument.
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The statements from 2 of the 4 cases you cited were in the nature of "slaves aren't citizens," which simply supports your argument that since the states were free to treat slaves as non-citizens, they were likewise free to treat citizens as non-citizens. I looked up Buzzard because the quote seemed outrageous. That you didn't sense it was outrageous, and decided to offer it as support is evidence that your "mistake" had a deceitful purpose. That you came back and said "the quote doesn't affect my argument" is just amazing chutzpah. The quote says, essentially "collective rights," and you say you aren't arguing is support of the collective rights theory. Dingbat.
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The fact that I reject the conclusion that the 2nd protects only the right of people serving in the state national guard or reserve does not men I can't wrap my head around the argument - it means I considered it and rejected it. As for the grounds that you advance to justify finding only a collective right, "slavery," shit, that's LOL ridiculous. If you buy that trash, it's no wonder you're confused.
11.21.2008 10:29pm
PHSJR (mail):
OK.

You refer to the "National Guard" with contemporary statutes. That is at least as "deceitful" in purpose as my mistake.

I'm glad this isn't the Republic of Cboldt where your last word is law; that you "considered it and rejected it" basically means nothing: you cannot even repeat the argument I've made to you.

I will walk away from this able to easily brush aside the next person who says "Look here. All males, of age, are in a militia. Militia-men must show up at arms. Therefore, all males have a right to bear arms," merely by pointing to statute about freed black men who couldn't.

You, however, will smash a beer bottle and throw insults.

As a personal aside, I suggest you consider not drinking and posting.
11.22.2008 12:54pm
cboldt (mail):
-- you cannot even repeat the argument I've made to you. ... I will walk away from this able to easily brush aside the next person who says "Look here. All males, of age, are in a militia. Militia-men must show up at arms. Therefore, all males have a right to bear arms," merely by pointing to statute about freed black men who couldn't. --
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Pot, kettle, black. You intend to brush aside any historical observation that doesn't support the outcome you want; and as you've shown in this thread, you'll resort to illogic and misrepresentation in order to accomplish the outcome you want, i.e., the 2nd amendment does not reiterate an individual right to keep and bear arms.
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-- You, however, will smash a beer bottle and throw insults. As a personal aside, I suggest you consider not drinking and posting. --
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There you go again. You threw the first, second and third insults, eventually got some back, and now you're back to your adolescent self, throwing insults without basis. I have firm basis to call you out as a liar, and am perfectly justified in being prickly toward you.
11.22.2008 4:42pm
PHSJR (mail):
Hey now. I didn't lie about anything.

If you go back and re-read this thread, you started with insults, and swears. I honestly thought you were drinking at 10:30.

Look at how you equate "any historical observation" with my thumbnail of your argument above, and then accuse me of "illogic and misrepresentation."

By the way, I *will* take thoughtful and factual argument into consideration, and if I'm wrong, I'll flip. I haven't internalized this debate like you have.
11.22.2008 5:28pm
cboldt (mail):
-- If you go back and re-read this thread, you started with insults, and swears. --
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I've reviewed the thread on several occasions, and each time, besides the substantive points, I noticed me ignoring where you fabricated or misstated my position (except I did point out one of your strawmen in that regard), goading, and similar juvenile "just having fun." I'm not going to buy your plausible deniability schtick. Stick it. Whether you were looking to provoke a reaction or not, you're stuck with it. You are dishonest in argument, and it is reasonable for me to doubt your sincerity as to personal expression as well.
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As for thoughtful and factual argument, it's up there, in this thread. It can be read with an open mind, or read hypercritically (e.g., your characterizing my error in naming the dissenting judge in Buzzard as being material; converting casually stated positions into radical positions (strawmen) in order to dismiss them; etc.). Revisiting the argument now would be an exercise in futility. If you feel like revisiting the subject, give the thread a rest before reading it again.
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I have nothing further to say to you at this point in time.
11.22.2008 6:29pm