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St. George Tucker, Saul Cornell, and Justice Stevens:

The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights has just been published by the Northwestern University Law Review Colloquy. The article, by David Hardy, will also appear in the printed edition of the N.W.U.L. Rev.

St. George Tucker is perhaps the preeminent source of the original public meaning of the Constitution. His 5-volume American edition of Blackstone's Commentaries was the by far the leading legal treatise in the Early Republic. Tucker included extensive analysis, in footnotes and in an appendix, explaining how the English common law of Blackstone had been changed in America. Tucker's analysis of the Second Amendment plainly described it as an individual right, encompassing the keeping and bear of arms for personal self-defense, for hunting, and for militia service. Justice Scalia's majority opinion in Heller quoted from Tucker's American Blackstone.

Justice Stevens' dissent in Heller cited a 2006 article by historian Saul Cornell. That article stated that Tucker's 1791-92 lecture notes described the Second Amendment as relating only to the militia.

David Hardy's article reviews Tucker's lecture notes, as they involve various freedoms enumerated in the Bill of Rights. Hardy finds that Tucker's view of the Constitution was far more libertarian (regarding issues such as free speech and press, or warrantless searches) than either modern Supreme Court doctrine, or the views sometimes ascribed to the Founders.

As for the Second Amendment, Hardy finds that Cornell's article, and therefore Justice Stevens' opinion, contains a major factual error: the militia language which Cornell quoted was not from Tucker's description of the Second Amendment. The language was from Tucker's explanation of Article I's grant of militia powers to Congress. Tucker's description of the Second Amendment comes 20 pages later in the 1791-92 lecture notes, and is nearly a verbatim match with the text Tucker's 1803 book, unambiguously describing the Second Amendment as encompassing a personal right for a variety of purposes, not just for militia service.

The Cornell article is St. George Tucker and the Second Amendment: Original Understandings and Modern Misunderstandings, 47 Wm. & Mary L. Rev. 1123 (2006). Perhaps the error in article, and the derivative error in a Supreme Court opinion, could have been averted with bettter cite-checking.

Readers interested in Tucker may also be interested in my article The Second Amendment in the Nineteenth Century (BYU L. Rev.)(also discussing the scholarship of Tucker's son Henry St. George Tucker, and his grandson John Randolph Tucker), and in Stephen Halbrook's response to Cornell, St. George Tucker's Second Amendment: Deconstructing "The True Palladium of Liberty" (Tenn. J.L. & Pol'y).

J. Aldridge:
Tucker's analysis of the Second Amendment plainly described it as an individual right, encompassing the keeping and bear of arms for personal self-defense, for hunting, and for militia service.

Really? Are you sure? There was no such individual right at common law. The 2A is just as Story &Pomeroy said: “The object of this clause is to secure a well-armed militia.”
12.22.2008 5:39pm
Melancton Smith:
J Aldridge wrote:

Really? Are you sure? There was no such individual right at common law. The 2A is just as Story &Pomeroy said: “The object of this clause is to secure a well-armed militia.”


Seems pretty clear if one bothers to read the article. Tucker wrote:


The right of the people to keep and bear arms shall not be infringed—this may be considered as the palladium of liberty. The right of self defense is the first law of nature. In most governments it has been the study of rulers to abridge this right with the narrowest limits. Where ever standing armies are kept up &the right of the people to bear arms is by any means or under any colour whatsoever prohibited, liberty, if not already annihilated is in danger of being so


Since we have standing armies, including Federally controlled National Guard and our right to bear arms is prohibited by any means or under any colour, then it follows that our liberty, if not already annihilated, is in danger of being so.

Just doing your homework for you.
12.22.2008 5:57pm
booger:

Really? Are you sure? There was no such individual right at common law. The 2A is just as Story &Pomeroy said: “The object of this clause is to secure a well-armed militia.”


Are YOU sure? Which "common law" are you talking about?
12.22.2008 6:10pm
Dan Hamilton:
See they NEVER give up. They twist any wording they can find to fit their view of the 2ed. And some day they may win and the Supreme Court will agree with them. The anti-2ed people will rejoice. They will have won the war of WORDS. What they always forget is that the pro-2ed people are willing to back up their words with actions if they have to. The anti-2ed people expect someone else to back up their words. How foolish.

Continue with your WORDS, have your fun. But what will you do on the day that angry citizens decide to hold YOU accountable for what you have done? Call on the 1st? If you have destroyed the 2ed why would you expect to be protected by the 1st? After all the pro-2ed citizens would want to make sure YOU wouldn't attack their freedoms again. You see you don't leave us any other options. Since you cannot be reasonned with, and your lies and destortions will never stop and they did work on the Supreme Court. Well, what else are we to do if you ever win.

I pray every day that the anti-2ed people don't win. I like my confortable life. And all that death and distruction no matter which side would win. It isn't my sort of thing. So please be reasonable leave the 2ed alone, accept that it is an individual right, leave us alone.

The meaning of the Bill of Rights isn't a game! Expand the Rights but restrict or destroy those Rights and You will make people mad. Get them mad enough, you and the other anti-2ed people will only have yourselves to blame.

I have my guns for defense and because I like finely crafted machines. I am non-violent and have never hurt anybody and I pray I never have to. Please be reasonable.
12.22.2008 6:23pm
J. Aldridge:
Dear Melancton Smith:

Tucker also wrote:

"He who ceased to be a citizen of some particular state, without becoming a citizen of some other particular state, forfeited all the rights of a citizen in each and all of the states. There was no one right which the citizen could exercise, and no one duty which he could be called on to perform, except as a citizen of some particular state. In that character alone could he own real estate, vote at elections, sue or be sued; and in that character alone could he be called on to bear arms, or to pay taxes."

And:

"The right of the people to keep and bear arms shall not be infringed (Amendment II) may be changed, or modified, by the States, but the Federal Government is forbidden to do either."
12.22.2008 6:49pm
CDR D (mail):
I think it is fairly well a reality that an overwhelming majority of the American public accepts that the right to arms is an individual right, and that it is secured not only by the 2A, but by common law, natural law, and long standing tradition extending back to the Classical Era.

The J. Aldridges of the world have a remarkably risible task ahead of them if they think they can convince the public otherwise.

In a perverse sort of way, I wish *Heller* had gone the other way. I would have loved the see the reaction of the people to the reduction of their rights by sheer pettifoggery.
12.22.2008 7:03pm
J. Aldridge:
CDR D:

The majority of the public has been influenced by twisted NRA arguments over the last 30 years. It was well accepted by the public up until the 1960's that the 2A was a collective militia right.

I'm not trying to to convince anyone of anything. I am only pointing out the flaws from missinterpreting the 2A.
12.22.2008 7:10pm
MarkField (mail):

St. George Tucker is perhaps the preeminent source of the original public meaning of the Constitution.


More so than the Federalist? The debates in the state conventions? Debates in the First Congress?

I mean, you can choose your own "preeminent" source, but it strikes me as idiosyncratic to pick a book not even published until 15 years after ratification.
12.22.2008 7:11pm
T Gracchus (mail):
The notion that "the preeminent source of public meaning" is a treatise written by one person is odd. That the treatise lacks any methodology which is a plausible means of canvassing or determining predominant public meaning suggests some lack of seriousness.
12.22.2008 7:12pm
AnonLawStudent:

"The right of the people to keep and bear arms shall not be infringed (Amendment II) may be changed, or modified, by the States, but the Federal Government is forbidden to do either."

Equally true of the First Amendment, but then there is this concept called "incorporation" by the Fourteenth Amendment.
12.22.2008 7:18pm
CDR D (mail):
>>>I'm not trying to to convince anyone of anything.


<<<

You're not? Like hell you're not.

You're plainly trying to convince people:

"The majority of the public has been influenced by twisted NRA arguments over the last 30 years. It was well accepted by the public up until the 1960's that the 2A was a collective militia right."

Sorry. I've been around a bit longer than the 1960's.

No cigar.
12.22.2008 7:19pm
J. Aldridge:
AnonLawStudent wrote: "Equally true of the First Amendment, but then there is this concept called "incorporation" by the Fourteenth Amendment."

When did the people come together and decided the 2A should be incorporated against the states and document this decision? Remember the first attempt to incorporate the First Amendment against the States (1875) via constitutional amendment failed. I'm not familiar with any future attempt to make any other Amendment a strict prohibition against the states.

Of course there is nothing to stop a simple majority of the SCOTUS from amending the constitution anymore. Sad.
12.22.2008 7:38pm
Nunzio:
Guns and abortions. Those are our rights.
12.22.2008 7:52pm
Chief Overlord (mail):
Now, most people on here would call me a liberal. I only have a few libertarian slants, mostly to do with the consumption of illegal narcotics (but that's for another time).

However, on this case in particular, I find myself in continual disagreement with my peers.

The text of the amendment is clear:

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

It clearly states:

1. A militia is necessary;
2. Therefore people are allowed to own guns.

It does not say:

1. A militia is necessayr;
2. Therefore people can own guns (but only if they're part of a special official militia)

The principles of statutory interpretation are clear: take the ordinary meaning of the words. The first clause of the sentence doesn't limit the right to bear arms, it simply states the reason for the existence of the right. There is no qualification.

I understand why some people are opposed to gun ownership. I understand why some people want to interpret the amendment in a particular way to impose a qualification on the right, but it is simply the wrong way to go about it. If you want the law changed, pass another amendment. Don't play stupid word games with a clearly stated law.
12.22.2008 7:53pm
Jon Roland (mail) (www):
We've had Tucker's Blackstone containing the same material online for several years (although some formatting is still needed beyond Volume I).

There was no such notion as a "collective right" in the founding era. That is an innovation adopted by anti-gun advocates in the mid-20th century. All rights are individual, even if some can only be exercised on collective occasions, like voting (although there is not a right to vote, but the right not to be denied the privilege to vote on certain grounds, a subtle but important distinction).

St. George Tucker was the first of a long line of distinguished legal scholars, most of whose treatises are scheduled to be added to our site.

As for "incorporating" the 2nd Amendment, from the debates on the 14th Amendment it is clear that the right to keep and bear arms was the main right it was intended to protect. See "Intent of the Fourteenth Amendment was to Protect All Rights", which examines the legislative history.
12.22.2008 8:05pm
Jon Roland (mail) (www):
The right to keep and bear arms is a fundamental right, more fundamental than the constitution of government, deriving from the superior constitutions of nature and society. It cannot be constitutionally removed by amendment of the constitution of government.

If you don't think some individual has the competence or responsibility to keep and bear arms, then petition a court of competent jurisdiction to disable the right by due process, with a jury deciding by unanimous verdict that it has been proved beyond a reasonable doubt that the right, if not disabled, would present a clear and present public danger.

And if you prevail in court, don't ask someone else to enforce the court order. Don't seek to disable a right unless you are prepared to volunteer to enforce the deprivation, by yourself, at your own risk.
12.22.2008 8:14pm
CDR D (mail):
>>>Don't seek to disable a right unless you are prepared to volunteer to enforce the deprivation, by yourself, at your own risk.


<<<

Yer kidding...right?

Haw.

"In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas."

-Breyer dissent in *Heller*-

Can we say non sequitur, boys and girls"
12.22.2008 8:26pm
frankcross (mail):
Jon Roland, what provision of nature's constitution says that you can go to a court and disable someone's rights?

I didn't think nature's constitution had courts. And if peoples' constitutions can amend nature's constitution, well then the content of nature's constitution doesn't have much power, does it?
12.22.2008 8:48pm
James Lindgren (mail):
Saul Cornell's error was already discovered and noted by Robert Churchill, in an article I quoted from in an earlier post. Here is a longer quote from Cornell:




Tucker's 1803 edition of Blackstone's Commentaries has long been discussed by scholars of the Second Amendment. That volume contained an appendix entitled "A View of the Constitution of the United States." Cornell discovered some years ago that a manuscript draft of this text existed among Tucker's law lectures in the Tucker-Coleman papers at the Swem Library. He is to my knowledge the first to use this text, which dates from the early 1790s and is the most informed commentary on the Second Amendment dating from the period immediately after ratification. As is true of the revised version published in 1803, the manuscript draft is organized as an article-by-article commentary on the Constitution of 1787, followed by the amendments. Cornell professes to offer an analysis of Tucker's "earliest gloss on the Second Amendment" and quotes passages from the manuscript draft suggesting that Tucker saw the amendment as guaranteeing the right of states to arm their militias (p. 74). But the passages of the manuscript draft that Cornell discusses are not Tucker's gloss on the Second Amendment. They are instead his gloss on the militia clauses of the original Constitution. On Tucker's gloss on the Second Amendment itself, both in the 1790s manuscript and in the 1803 published version, Cornell is silent. I hope Cornell will take the opportunity to explain his decision to pass over this material.

It is clear from the Tucker's gloss on the Second Amendment in the manuscript draft that he saw in the amendment a guarantee that extended well beyond the concern over federalism that Cornell discusses. Tucker noted that "in England the people have been disarmed under the specious precept of preserving the game." In a note on the facing page, Tucker commented that in England, "the right of the people to bear arms" was by the inclusion of limiting language "entirely done away." In this gloss, Tucker suggested that the passage of England's game laws had in England eliminated the constitutional protection that the Second Amendment was intended to guarantee. Tucker reiterated this view in 1803, noting that under the game laws in England, "the right of keeping arms is effectually taken away," while expressing his hope that in America, "the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty."[4]

The problem for Cornell's argument is that England's game laws prohibited citizens, the vast majority not enrolled in the militia, from possessing firearms for private purposes. That Tucker saw the game laws as a contravention of the right protected by the Second Amendment is clear evidence that he understood that right to apply in America to all citizens and to weapons owned for both public and private purposes. Tucker's view mirrors that of Samuel Nasson and Saumel Latham Mitchel, cited by Cornell, and of a supporter of Samuel Adams in August 1789 who interpreted the House draft of the Second Amendment as a vindication of Adams's earlier proposed amendment that prohibited Congress from preventing "the people of the United States, who are peaceable citizens, from keeping their own arms."[5] All of these early interpreters of the language embedded in the Second Amendment understood it to guarantee a right to keep arms that transcended "the inextricable connection" to militia service that Cornell posits.


Jim Lindgren
12.22.2008 9:18pm
MarkField (mail):

There was no such notion as a "collective right" in the founding era.


Sure there was: "whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."
12.22.2008 9:19pm
MarkField (mail):
I don't really have a dog in the fight about the original meaning of the 2A, but I have to say that I don't find the original post or Prof. Lindgren's addendum to be very persuasive.

The language quoted by Melancton Smith is perfectly consistent with a collective right. The assertion "That Tucker saw the game laws as a contravention of the right protected by the Second Amendment...." is an overstatement of what Tucker said. All Tucker said was that the game laws had served in England as a pretext to take away the right to a militia. That doesn't mean that the game laws themselves contravened the right, it means that they were a pretext for contravening the right.

Those are two different things. The latter means only that the game laws took away guns, which had the indirect effect of eliminating the collective right to a militia. The former means that each individual had an individual right to bear arms and the game laws violated that specific right. Tucker may have meant the individual right, but the passages quoted aren't sufficient to state that with certainty.
12.22.2008 9:32pm
J. Aldridge:
Jon Roland wrote: "There was no such notion as a "collective right" in the founding era."

Really? George Thatcher said the provision “the people have a right to keep and bear arms in their common defence,” did not deprive the people of their natural right “of using arms when they are attacked individually, and not in common and together.” Clearly there was a distinction between individuals defending themselves separate from defending themselves collectively.


P.S. Jon Roland did a disservice to the the 14th's legislative history by failing to properly put Bingham's "bill of rights" remarks in proper context. Shame on him!
Worst, he totally omits Bingham's important House Report #22 of 1871, which explained much intent behind the first section of his amendment. Shame on him again!

See Madison's magnificent work on the legislative history of the Fourteenth Amendment here.







James Wilson said Pennsylvania's Constitution provided for a person to "assemble people together in order to protect and defend his house.” Again, a distinction is made between individual self-defense and collective defense.

How does a single individual protect himself and property or community from an organized group of armed people? hmmmmmm? Wouldn't a trained and organized militia force be a more proper defense?
12.22.2008 9:38pm
Leif Rakur (mail):
In the era that produced the Second Amendment, it doesn’t appear to me that Americans understood the Second Amendment’s “right of the people to keep and bear arms” to mean the “right of individuals to keep and carry arms.”

Bear arms, used in a wholly military context, meant “render military service.” It was a commonly used idiom in the language of the time. To say that a person was capable of bearing arms or able to bear arms was to say the person was capable of military service or able to render military service.

A declaration of right that used a “bear arms” clause identical to that of the Second Amendment was agreed to on July 26, 1788, for transmission to Congress as part of New York’s ratification of the Constitution:

“That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.” (Elliot’s Debates, vol 1, p 328)

If “bear arms” here meant “carry arms,” then “bearing arms” here would mean “carrying arms.” That would be to say that the people as individuals had a right to keep and carry arms, but that only those actually capable of carrying arms should be in the militia. Such a meaning would be absurd, particularly in view of the fact that almost everyone not in diapers is capable of carrying arms of some kind.

The meaning of New York’s provision must be, I think, that the people as a political community have a right to keep arms and provide militia service, with the actual militia duties being performed by those judged capable of doing so.
12.22.2008 9:52pm
Jon Roland (mail) (www):
MarkField:

There was no such notion as a "collective right" in the founding era.

Sure there was: "whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."

Nope. What is being asserted there is the individual right to resist oppression and not to be impeded from participation or representation in the establishment of a replacement government. The latter is exercised on a collective occasion but is still an individual right.

The notion of a "collective right" is one that only exists in an officially sanctioned collective activity. But constitutional rights are all immunities against official action.

To be an immunity, an individual has to be able to exercise it in concert with others, but may also exercise it alone, or in secret. That is a key distinction.


Jon Roland, what provision of nature's constitution says that you can go to a court and disable someone's rights?

I didn't think nature's constitution had courts. And if peoples' constitutions can amend nature's constitution, well then the content of nature's constitution doesn't have much power, does it?


The constitutions of nature and society allow disablements of the exercise of rights through judicial due process, which put the burden of proof on the petitioner seeking to disable them. What is not permitted is legislative disablement, which has the effect of reversing the presumption and burden of proof. In other words, the prosecutor only has to prove the right was exercised, not that if not disabled there would be a substantial harm done.

Gun control legislation is an attempt to prevent harm, based on a faulty model of causation and the effects of legislation. Most legislative measures intended to prevent harm are suspect, and in this issue, are severely counterproductive. The way to prevent gun violence is to organize and train everyone as militia.
12.22.2008 10:04pm
JayF (mail):
Leif Rakur: In the era that produced the Second Amendment, it doesn’t appear to me that Americans understood the Second Amendment’s “right of the people to keep and bear arms” to mean the “right of individuals to keep and carry arms.” Bear arms, used in a wholly military context, meant “render military service.”

More about that:

What Did "Bear Arms" Mean in the Second Amendment?
by Clayton E. Cramer and Joseph Olson

Georgetown Journal of Law &Public Policy, Vol. 6, No. 2, 2008

Abstract:
Among the many heated controversies concerning the Second Amendment is the correct meaning of the phrase keep and bear arms. Those who argue that the original meaning of the Second Amendment was only to protect a collective right, either of the states to maintain militias, or perhaps of citizens to jointly form state-controlled militias, assert that bear arms refers exclusively or at least overwhelmingly, to the military carrying of weapons. Some have claimed that even keep arms was exclusively military in its meaning. While one might challenge the overly narrow focus on bear arms instead of the entire phrase keep and bear arms, those arguing for a collective right have thrown down the gauntlet by making this strong claim about just two words. This paper demonstrates that the Founding Generation did not understand bear arms as limited to military or collective militia duty but saw it as merely one way of expressing the concept of possession (as a modern speaker might say carry a gun).
12.22.2008 10:08pm
J. Aldridge:
This paper demonstrates that the Founding Generation did not understand bear arms as limited to military or collective militia duty but saw it as merely one way of expressing the concept of possession (as a modern speaker might say carry a gun).

Not only possession, but also USAGE. Civil laws never used the words "keep and bear arms" but the words guns, fire-arms, pistols, lead, etc.
12.22.2008 10:24pm
Jon Roland (mail) (www):
J. Aldridge:

Jon Roland wrote: "There was no such notion as a "collective right" in the founding era."

Really? George Thatcher said the provision “the people have a right to keep and bear arms in their common defence,” did not deprive the people of their natural right “of using arms when they are attacked individually, and not in common and together.” Clearly there was a distinction between individuals defending themselves separate from defending themselves collectively.

Exercising an individual right in concert with others does not make it a "collective right".


P.S. Jon Roland did a disservice to the the 14th's legislative history by failing to properly put Bingham's "bill of rights" remarks in proper context. Shame on him!
Worst, he totally omits Bingham's important House Report #22 of 1871, which explained much intent behind the first section of his amendment. Shame on him again!

See Madison's magnificent work on the legislative history of the Fourteenth Amendment here.

P.A. Madison is the one doing the disservice. The question for U.S. Const. Art. IV Sec. 2 is how to interpret the phrase,
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

He is arguing that this somehow excludes incorporation of the first eight (or even all ten) amendments, but all of those rights are to be found in the constitutions of some of the states, or at least two of them. The clause does not say all of the states. Arguably, it would extend the rights recognized by any state to all other states. If the rights are (correctly) understood as more fundamental that the Constitution, then undisputed recognition by any state is recognition by all, and Madison's argument fails.
12.22.2008 10:28pm
frankcross (mail):
Jon Roland, where do I find this content for the constitution of nature?

How could a constitution of nature provide for disablement by jury trial and due process, when nature has no juries? We had centuries when there were no juries or due process, but there was of course nature. Was the constitution of nature operative then?
12.22.2008 10:38pm
J. Aldridge:
Jon Roland wrote: "He is arguing that this somehow excludes incorporation of the first eight (or even all ten) amendments, but all of those rights are to be found in the constitutions of some of the states, or at least two of them."

Actually it isn't Madison arguing that, but Bingham, et al. Notice Bingham says of the privileges and immunities in H.R. #22 (1871): "in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two."

Did the privileges and immunities of US citizens under article two ever include any of the first eight amendments? Why did congress a couple years later offer to amend the Constitution in order to bind the First Amendment against the states if the Fourteenth Amendment REALLY incorporated the first Eight Amendments through P&I's?????
12.22.2008 10:45pm
J. Aldridge:
^^ article two = article four! ooops.
12.22.2008 10:47pm
MarkField (mail):

Nope. What is being asserted there is the individual right to resist oppression and not to be impeded from participation or representation in the establishment of a replacement government. The latter is exercised on a collective occasion but is still an individual right.


Not to put too fine a point on it, this claim is preposterous. Look, it's basic John Locke that the right to form a government belongs to the people collectively. Locke never in a million years argued for an individual right of revolution, and Jefferson was making no such argument either. Saying it's an "individual right exercised on a collective occasion" is just semantics.
12.22.2008 10:51pm
Repeal 16-17 (mail):
Keep in mind that proposal was not passed by the Congress. Since when does a member of the Congress proposing a Constitutional amendment affect the meaning of the Constitution? Maybe the Congress didn't pass that proposed amendment because it thought the proposal was redundant.
12.22.2008 11:02pm
nyejm (mail) (www):
Chief Overlord wrote:


The first clause of the sentence doesn't limit the right to bear arms, it simply states the reason for the existence of the right. There is no qualification.


Why do no other amendments "state the reason" for the existence of the right(s) they preserve? Wouldn't it be odd to state the reason for the existence of this right and no others? Might that weigh in favor of reading it as a qualification than an explanation? Wouldn't the amendment be more clear (at least, more supportive of your position) if it stated in its entirety, "The right of the people to keep and bear arms shall not be infringed"? If the first clause is not a qualification, it is either superfluous or inconsistent with the rest of the amendments, or both, isn't it?
12.22.2008 11:07pm
GCA (mail):
According to MarkField:

"The language quoted by Melancton Smith is perfectly consistent with a collective right. The assertion "That Tucker saw the game laws as a contravention of the right protected by the Second Amendment...." is an overstatement of what Tucker said. All Tucker said was that the game laws had served in England as a pretext to take away the right to a militia. That doesn't mean that the game laws themselves contravened the right, it means that they were a pretext for contravening the right."

Seems pretty tortured to me, considering there is plenty of reference to individuals and no reference to a militia in the passage at issue. "The right of self defense is the first law of nature..." I have to go to the State and become part of a formed militia to defend myself?
12.22.2008 11:26pm
comatus (mail):
Oh, I smell Soros' project money in this. What have we got on this Cornell fellow? Is he another Bellesiles?
12.22.2008 11:35pm
pintler:

Not to put too fine a point on it, this claim is preposterous. Look, it's basic John Locke that the right to form a government belongs to the people collectively. Locke never in a million years argued for an individual right of revolution, and Jefferson was making no such argument either. Saying it's an "individual right exercised on a collective occasion" is just semantics.


There are two possible models - the king gets to decide who gets arms, in which case only his troops have them, and disaffected peasants get to revolt with pitchforks and flails, or the king doesn't get to decide, and whomever wants arms gets to have them, and they can use those arms to revolt if they want.

Single actor revolts don't work too well - just ask McVeigh or John Brown - but when the majority of the population wants to overthrow a despot, widespread access to arms makes that a lot easier.

You can say widespread access to arms is a bad idea, because of Somalia, Yugoslavia, and South LA - but those weren't part of the story the founders had lived. A broad based, successful revolution against what they viewed as tyranny was, and that colored their views.
12.22.2008 11:51pm
Jon Roland (mail) (www):
frankcross:
Jon Roland, where do I find this content for the constitution of nature?

By studying the natural sciences, from physics through psychology. Calling "natural law" the "constitution of nature" is a way to view it for its implications for law. Recall the ancient maxim:
Nemo tenetur ad impossibile. No one is bound to an impossibility.

That also applies to the improbable or what it is not to be expected normal social beings will rationally do.

How could a constitution of nature provide for disablement by jury trial and due process, when nature has no juries? We had centuries when there were no juries or due process, but there was of course nature. Was the constitution of nature operative then?

Of course nature has juries. People and the things they do are part of nature. People have found that juries are a more rational way to protect the rights of defendants than relying on judges, prosecutors, witnesses, or other officials, who are susceptible to being biased, corrupt, or incompetent. We adopted the use of juries because we found judges cannot be trusted. That is just a recognition of human nature and behavior in certain kinds of situations.
12.23.2008 12:35am
AnonLawStudent:

Why do no other amendments "state the reason" for the existence of the right(s) they preserve? Wouldn't it be odd to state the reason for the existence of this right and no others?

See Art. I, Section 8. The preambular phrase "To promote the progress of science and useful arts" is not a limitation on the operative provisions authorizing patents and copyrights. E.g. Schnapper v. Foley, 667 F.2d 102 (D.C. Cir. 1981); see also Eldred v. Ashcroft, 537 US 186, 210-17 (2003).
12.23.2008 12:39am
MLS:
I can only imagine the uproar that would have followed had a sheriff knocked on Ben Franklin's door and told him to turn over his musket(s) because he was too old to serve in the militia.
12.23.2008 12:55am
Jon Roland (mail) (www):
J. Aldridge:
Notice Bingham says of the privileges and immunities in H.R. #22 (1871): "in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two."

I wouldn't hold up Gingham as a model of rigorous or precise thinking or exposition, but the most reasonable way to decode that is to point out that the rights recognized in the Bill of Rights are "immunuities" --rights against the actions of state actors. Then "privileges" are "rights" arising from the constitutions of government, U.S. or state, such as to vote and hold office. The immunities are then shared by persons in states and the U.S., but the privileges vary from one to the other. A citizen of state A has the privilege to vote and hold office in state A but not in state B. A citizen of a nonstate territory has privileges there that he does not have in a state, but all the same immunities.

Did the privileges and immunities of US citizens under article two ever include any of the first eight amendments? Why did congress a couple years later offer to amend the Constitution in order to bind the First Amendment against the states if the Fourteenth Amendment REALLY incorporated the first Eight Amendments through P&I's?????

It included the immunities, including those of the Ninth and Tenth Amendments, recast to fit the states. The problem for the framers of the 14th was Barron v. Baltimore, which held, in essence, that adoption of the Bill of Rights did not create a federal question jurisdiction to overcome the omission of a jurisdiction in Art. III for federal courts to decide cases and controversies between a citizen and his own state. (I would argue, as Barron did, that the Bill of Rights, except for the First Amendment, did extend federal court jurisdiction to such cases, but following that precedent it became necessary to more explicitly extend federal court jurisdiction to them.

The "incorporation" of the immunities recognized in the First Amendment to the states should more correctly be understood as an incorporation of the Ninth Amendment, which includes all the other immunities. But the SC was constrained by the clumsy way the cases on that were argued.
12.23.2008 1:01am
James Gibson (mail):
I hate to say this but this thread is reminding me of several Scotus Blog threadsprior to the Heller ruling.

People mixing up Tucker comments with comments made by Blackstone. I believe it was Blackstone who brought up the English Hunting laws.

Then People siting Tucker as the last word on the meaning of the Constitution: seems too much like one Scotus argument I had over why people should take William Rawle as "the" source for the meaning of the Constitution. Neither had their works peer reviewed and neither served in Congress (though one served in the militia and the other was a Tory).

And of course the statement that the Collective right was the understood meaning until 1960 and then the NRA changed it. Yet it seems that Collective right wasn't ever breathed by a US Attorney General until 1938 (Homer S. Cummings) and wasn't made the policy of the AG office until 1968. As stated by Justice Reinhart of the 9th circuit in Silveria Vs Lockyer (pg 20) that the Collective right position of the AG was a decades-old position not a centuries old position.

In the end this post just shows how many people want to get their facts jumbled just to hold the views they have.
12.23.2008 2:26am
Melancton Smith:
Leif Rakur wrote:

Bear arms, used in a wholly military context, meant “render military service.” It was a commonly used idiom in the language of the time. To say that a person was capable of bearing arms or able to bear arms was to say the person was capable of military service or able to render military service.


Care to explain what "the Right of the People to Keep and Render Military Service" means?
12.23.2008 3:40am
Melancton Smith:
J. Aldridge wrote:

Really? George Thatcher said the provision “the people have a right to keep and bear arms in their common defence,” did not deprive the people of their natural right “of using arms when they are attacked individually, and not in common and together.” Clearly there was a distinction between individuals defending themselves separate from defending themselves collectively.


Is Free Speech an individual or a collective right? I think both. As is 2A. Again, many reasons to restrict the govt from disarming the citizens...one of which is necessary to the security of a free state.

No militia means no free state. The militia comprises the whole body of the people.

Another purpose of 2A is to maintain a basic level of firearms skill amongst those that might be called upon to render service in defense of the state. This was acheived by a general right to keep and bear arms.

If you read the Amici for DC v Heller (and I read all of them) you'd see Generals discussing how important it was to us in WWII that many of our soldiers were capable of using guns prior to being called up.
12.23.2008 3:48am
Old Fart:
It sure doesn't take ole J. Aldridge long to tilt away at any windmill that stands for the plainly understood individual right recognized by the Second Amendment.

Surely, with his tenacity and dry wit, he must believe himself to be engaged in a mission on par with Don Quixote.

But his reasoning and conclusions betray his true character, sadly, as more akin to that of Sancho Panza...
12.23.2008 4:31am
PersonFromPorlock:
For a collective right embedded in the Bill of Rights, how about the First Amendment's Religion Clause? "[A]n establishment of religion" clearly refers to an established church and the Clause clearly just prohibits Congress from creating a 'federal' church or interfering with state-established churches (the "thereof" in "the free exercise thereof"). There's no individual right protected by the Religion Clause at all; indeed, the Congress had no problem with the denial of individual religious freedom inherent in the state-established churches the Clause protects.

Oddly enough, people who easily discern the collective nature of the Second Amendment seem to have trouble seeing this argument. ;^)
12.23.2008 9:14am
PubliusFL:
MarkField: The latter means only that the game laws took away guns, which had the indirect effect of eliminating the collective right to a militia.

The game laws restricted private possession of firearms. How could such laws have the indirect effect of eliminating the collective right to a militia, except through the direct effect of eliminating the individual right of arms possession? And doesn't that mean that an individual right to arms possession is a necessary underpinning of the collective right to a militia? That explains the relationship between the two clauses of the 2nd Amendment.
12.23.2008 9:54am
Jack Okie (mail):
One more thread of the same old same old. I have asked before, but as far as I know never received an answer: If these are natural rights, then do they not apply to all people everywhere? Do they apply only to English colonists? What about the Inuit, or Nepalese, or those living under the Ch'in dynasty? Do the Inuit have a militia?
12.23.2008 10:08am
MarkField (mail):

Seems pretty tortured to me, considering there is plenty of reference to individuals and no reference to a militia in the passage at issue. "The right of self defense is the first law of nature..." I have to go to the State and become part of a formed militia to defend myself?


Yeah, except that the right of self-defense was often used in those days to refer to the right of a nation or people.


The game laws restricted private possession of firearms. How could such laws have the indirect effect of eliminating the collective right to a militia, except through the direct effect of eliminating the individual right of arms possession? And doesn't that mean that an individual right to arms possession is a necessary underpinning of the collective right to a militia?


That's a plausible reading of Tucker. I'm just pointing out that it's also plausible to read him as saying that the game laws were a pretext to eliminate the (collective) right to a militia.

Just to be clear, my arguments here are NOT intended to deny a RKBA. I'm only interested in the history and how we read it. I don't find it very persuasive to declare Tucker the single most important source of meaning, nor do I find his own meaning quite as unambiguous as some seem to.
12.23.2008 10:35am
Dan Hamilton:

If these are natural rights, then do they not apply to all people everywhere? Do they apply only to English colonists? What about the Inuit, or Nepalese, or those living under the Ch'in dynasty? Do the Inuit have a militia?


Yes Jack the natural rights apply to everyone.

Just because governments deny their people these natural rights doesn't mean they don't exist. The US was just the FIRST Government to recognize and protect these natural rights.

Joggers in California have the natural right to life. Mountain lions have a natural right to life. When the Lion decides on Jogger for lunch. The Jogger has a natural right to self defense. Nothing is required to be a quiet lunch. But unless the Jogger has a gun he will have little chance of not becoming lunch. The State of California has taken away the Joggers ability to defend himself and is responsible for the Jogger becoming lunch.

Natural Right exist for everyone. Doesn't mean that Government allow people to effectively use those rights.

In California Mountain Lions are more important then Joggers. One of the many reasons I don't and never will live in California.
12.23.2008 10:50am
PubliusFL:
Jack Okie: If these are natural rights, then do they not apply to all people everywhere? Do they apply only to English colonists? What about the Inuit, or Nepalese, or those living under the Ch'in dynasty? Do the Inuit have a militia?

Sure, why not? I'm pretty sure the Inuit traditionally had a militia. All able-bodied men were hunters and fishers, and in time of war they all became warriors.

MarkField: That's a plausible reading of Tucker. I'm just pointing out that it's also plausible to read him as saying that the game laws were a pretext to eliminate the (collective) right to a militia.

That doesn't clear anything up for me. I'm just not getting the alternative reading. Unless Tucker has an individual right to arms possession as a premise, what's the connection between the game laws and the collective right to a militia? It seems like a complete non sequitur unless the militia is based on a right to private individual firearms ownership.
12.23.2008 11:11am
Andy Freeman (mail):
> How does a single individual protect himself and property or community from an organized group of armed people? hmmmmmm? Wouldn't a trained and organized militia force be a more proper defense?

In other words, Aldridge believes that people who don't defend themselves in a way he finds proper should not be allowed to defend themselves.

Of course, there is the question of what exactly constitutes an acceptable-to-Aldrige "trained and organized militia force". I look forward to his explanation why a govt must be involved.
12.23.2008 11:25am
Andy Freeman (mail):
> It was well accepted by the public up until the 1960's that the 2A was a collective militia right.

Let's find out a bit more about this collective militia right.

Suppose that Idaho wanted to have a militia consisting of the able bodied legal residents of Idaho. Furthermore, Idaho wanted said residents to have machine guns. So, it provided a tax deduction to encourage machine gun ownership.

Could Idaho exempt its militia members from NFA?

If Idaho can't arm its militia members as it pleases, what "right of Idaho" does the 2nd protect? Does the 2nd let Idaho keep troops without congressional consent, overturning the restriction against doing so in the last sentence of Article I?

One problem with the collective right argument is that it doesn't protect the right of any collective either.

Aldridge will disagree. He's invited to describe some of the things that his version of the 2nd protects with details involving who gets to have a gun that could otherwise be restricted by an act of some govt.
12.23.2008 11:35am
MarkField (mail):

That doesn't clear anything up for me. I'm just not getting the alternative reading. Unless Tucker has an individual right to arms possession as a premise, what's the connection between the game laws and the collective right to a militia? It seems like a complete non sequitur unless the militia is based on a right to private individual firearms ownership.


You need to put yourself in a collective rights mindset for this thought exercise. Let's take the right of revolution as an example (pace Jon Roland, that's the quintessential collective right). Suppose I were to argue that the game laws were a pretext for eliminating the right to revolution (on the theory that they removed the only practical method of revolution, i.e., guns). Similarly, restricting freedom of speech might constitute a pretext to infringe the right of revolution (because I need to talk to my fellow citizens in order to organize the revolution). This doesn't necessarily mean I think there's an individual RKBA or an individual right to freedom of speech, it only means that keeping arms and free speech are important prerequisites to the exercise of a right which I actually do believe exists.

The reason I suggest this as a possible reading is that Tucker used the word "pretext". Normally speaking, if he were referring to an infringement of a right, he wouldn't say that something was a "pretext" for infringing the right, he'd say the right itself was infringed. Period. Use of the word "pretext" implies the indirect reasoning I suggest. At least, it suggests to me that there's more than one possible meaning here.
12.23.2008 11:37am
Clayton E. Cramer (mail) (www):

Oh, I smell Soros' project money in this. What have we got on this Cornell fellow? Is he another Bellesiles?
He defended Bellesiles' fraud for a long time, until it became untenable. And if you read some of the reviews of his last book, you can see Cornell seems to have a reading disability, citing Aymette as proof that pistols could be banned--when Aymette upheld a law that did not apply to anything but Bowie knives and Arkansas toothpicks. And this is obvious when you read the decision, or bother to read any other materials about it.
12.23.2008 12:01pm
Clayton E. Cramer (mail) (www):
J Aldridge writes:

The majority of the public has been influenced by twisted NRA arguments over the last 30 years. It was well accepted by the public up until the 1960's that the 2A was a collective militia right.
How then is it that hundreds of court decisions from the 19th and 20th century recognized that the 2nd Amendment protected an individual right? They often argued that it did not apply to the states, or protect all forms of arms carrying (concealed carry wasn't protected, for example), or did not apply to blacks, but the decisions that argued that it did not protect an individual right are extraordinarily rare. Through 1991, I was able to find ten such decisions--and hundreds that accepted its individual nature. See my book For the Defense of Themselves and the State (Praeger Press, 1994) for examples.

A more accurate statement is that from about 1900 to the present, law professors and many federal judges considered the 2nd Amendment to be a collective right. But that's hardly the people.
12.23.2008 12:06pm
Clayton E. Cramer (mail) (www):

Yeah, except that the right of self-defense was often used in those days to refer to the right of a nation or people.
And used to refer to the right of individuals to defend themselves. The law review about the meaning of "bear arms" referenced above includes quotes from John Adams and supreme court justices that explicitly refer to "bear arms" in an individual self-defense meaning.
12.23.2008 12:11pm
Clayton E. Cramer (mail) (www):

Yet it seems that Collective right wasn't ever breathed by a US Attorney General until 1938 (Homer S. Cummings) and wasn't made the policy of the AG office until 1968.
And in 1934, Cummings was still prepared to admit that a complete federal ban on private ownership of machine guns might violate the Second Amendment--hence the complicated tax stamp scheme that he proposed for the National Firearms Act. See the National Firearms Act Hearings before the House Ways &Means Committee where both Cummings and his assistant acknowledged that were limits to what the federal government could do in this area.
12.23.2008 12:19pm
Clayton E. Cramer (mail) (www):

That's a plausible reading of Tucker. I'm just pointing out that it's also plausible to read him as saying that the game laws were a pretext to eliminate the (collective) right to a militia.
Except that English law did not recognize a collective right to a militia. Elizabeth, for example, was rather fearful of the rabble, and created a select militia of the trusted members of the gentry. There was a duty to participate in the miltia, but not a right to do so. Tucker is pointing out that the game laws were used as an excuse to disarm ordinary Englishmen. The government certainly could have disarmed the militia by specifying that they were to be armed only with reeds.
12.23.2008 12:23pm
Clayton E. Cramer (mail) (www):

One problem with the collective right argument is that it doesn't protect the right of any collective either.
The other problem is that John Adams, in arguing for an individual right to bear arms for self-defense, acknowledged that it was not a right for non-governmental militias to be armed for any other purpose. See Adams' A Defence of the Constitutions of the United States of America. Of course, Adams used "bear arms" to refer to the individual self-defense carrying of weapons.
12.23.2008 12:26pm
Kommunists-are-bad Karl:
I'm not sure if the commenters on this page are really as familiar with the founding fathers viewpoints as they think. Two driving forces behind the structure of the constitution were the founder's fears of tyranny and mobocracy (basically the fear of poor people with guns). In fact the institution of slavery in the south was a direct response to Bacon's Rebellion. Further there is only one major body in the federal government designed to fight tyranny which is the House of Representatives (Through 2 yr. terms and direct election). The Senate, Presidency, and Supreme Court all act as deterents against mobocracy. The contention that the founding fathers original intent was an individual right clashes with their fear of poor whites revolting like Bacon's and Shay's Rebellion. The founding fathers were mostly wealthy property holders who did not want anyone without property and under 25 voting. Why do you think they would give young landless people the absolute right to own a gun?
12.23.2008 12:49pm
Clayton E. Cramer (mail) (www):

I'm not sure if the commenters on this page are really as familiar with the founding fathers viewpoints as they think. Two driving forces behind the structure of the constitution were the founder's fears of tyranny and mobocracy (basically the fear of poor people with guns). In fact the institution of slavery in the south was a direct response to Bacon's Rebellion.
So how is that there are slaves before Bacon's Rebellion, if "the institution of slavery in the south was a direct response" to it?

Further there is only one major body in the federal government designed to fight tyranny which is the House of Representatives (Through 2 yr. terms and direct election). The Senate, Presidency, and Supreme Court all act as deterents against mobocracy.
You make it sound as though mobocracy and tyranny are opposite poles. They aren't. Read through the Philadelphia Convention discussions, and you will see that along with fear of "Gracchianism" (populism) there was a greater fear that a eloquent member of the elite would rouse the masses to back him with populism as the claim, but enrichment of the tyrant as the real goal.

The contention that the founding fathers original intent was an individual right clashes with their fear of poor whites revolting like Bacon's and Shay's Rebellion. The founding fathers were mostly wealthy property holders who did not want anyone without property and under 25 voting. Why do you think they would give young landless people the absolute right to own a gun?
Your knowledge of the Framers is defective. It is true that the voting franchise was more limited in the South, but especialy in New England, the franchise was pretty widely distributed, with typically 70% of free white males voting—and in free black males voted in some of the colonies upto the time of the Revolution. Voting age 25? Where?

Widespread ownership of arms was supported by most of the Framers. Indeed, I can't find one prepared to argue against it. They did argue against mob action, of course, but I can't find even one that was prepared to argue for disarming the masses to prevent mob action. Can you?

Remember that a lot of mob action in the late Colonial period was done by sheer force of numbers.
12.23.2008 1:30pm
RKV (mail):
Karl, I don't think so Quicksdraw. You've maybe been reading too much Howard Zinn. In fact here's proof of just the opposite of your contention "Why do you think they would give young landless people the absolute right to own a gun?" All those young landless people were legally required to own one.

The Militia Act of 1792 reflects the founder's sense of who should own a gun (if they are a citizens that is, and not a slave or native American). And let's also recall that the right secured in the 2nd is a right of the people, not a right of the militia members. OK?

"That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. " ...

"That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service"

http://www.constitution.org/mil/mil_act_1792.htm
12.23.2008 1:32pm
Clayton E. Cramer (mail) (www):

All those young landless people were legally required to own one.
And not just the Militia Act of 1792. There are colonial statutes in every colony but Pennsylvania requiring gun ownership at the start of the Revolution. My book Armed America has gobs of examples of such statutes, as well as laws in many colonies requiring every free man to be armed when attending meetings, going to church, or travelling. See here for more examples than you will have time to read.
12.23.2008 1:56pm
Nick B (mail):
Sorry to burst your bubble, but even those who think it's a "Militia" right need to brush up on TITLE 10 Subtitle A PART I CHAPTER 13 § 311. It's not defined how you think it's defined. (Updated as of Jan 3rd, 2007 in the reference I found)
12.23.2008 2:40pm
PubliusFL:
MarkField: Suppose I were to argue that the game laws were a pretext for eliminating the right to revolution (on the theory that they removed the only practical method of revolution, i.e., guns). Similarly, restricting freedom of speech might constitute a pretext to infringe the right of revolution (because I need to talk to my fellow citizens in order to organize the revolution). This doesn't necessarily mean I think there's an individual RKBA or an individual right to freedom of speech, it only means that keeping arms and free speech are important prerequisites to the exercise of a right which I actually do believe exists.

That reasoning doesn't seem to work in context. Tucker notes that the game laws are possible because the English right to bear arms is limited to such arms as are "suitable" to the subject's "condition and degree." Tucker points out that in English practice, the exceptions swallow up the rule, and the American guarantee compares favorably because it lacks such exceptions. It doesn't matter too much whether the individual right to possess arms is philosophically rooted in an individual right of self-defense or a collective right to a militia. The point is that Tucker believes that the deeper right, whether collective or individual, is preserved by means of a legally protected individual right to possess arms, free of exceptions that allow the government to narrowly circumscribe the class of arms the citizen may own.
12.23.2008 3:03pm
Brett Bellmore:
What a shocker, next you'll be telling us that the head of the Tobacco Institute can't be trusted to honestly relate research into the effects of tobacco.

Tell me again why we humor this PR flack's pretense of being an objective, or even honest, scholar?
12.23.2008 3:30pm
rmonahan (mail):
if abortion is a right protected by the constitution i think it would be reasonable to assume that that the second amendment means precisely what it says and that heller was properly decided.
12.23.2008 3:31pm
PersonFromPorlock:

...and that heller was properly decided.

Only if you're ready to accept Speech Licenses.
12.23.2008 3:54pm
PubliusFL:
PersonFromPorlock: Only if you're ready to accept Speech Licenses.

Well, "properly decided" in result, if not in all its reasoning and explaining. Nothing wrong with Heller if you throw out all the non-essential dicta. ;)
12.23.2008 4:16pm
Michael B (mail):
"Perhaps the error in article, and the derivative error in a Supreme Court opinion, could have been averted with bettter cite-checking."

Perhaps, but only perhaps. Imo, that's a very generous "perhaps".

Re, an Obama administration

With ideologues of note being appointed by the president-elect (e.g., Holder and Holdren conspicuously), not to mention Stevens and others on the Court, this type of scholarship (Tucker's) will need to be shored up and guarded against all manner of textual corruptions and propagandizing of same.

Dog bites man and obvious enough, in the abstract.
12.23.2008 5:21pm
Leif Rakur (mail):
James Monroe, serving as Madison’s Secretary of War, described the right to militia service, using the presently feared and hated “collective” word:

“The Commonwealth has a right to the service of all its citizens, or rather, the citizens composing the Commonwealth have a right collectively and individually to the service of each other, to repel any danger which may be menaced.

“The manner in which the service is to be apportioned among the citizens, and rendered by them, are the objects of legislation. All that is to be dreaded in such a case, is the abuse of power, and happily our Constitution has provided ample security against that evil.”

(Under the Second Amendment, for instance, the federal government could not, by abusing its military powers, abolish the militia system in favor of a standing army.)

And Monroe added this: “In support of this right in Congress, the militia service affords a conclusive proof and striking example. The organization of the militia is an act of public authority, not a voluntary association. The service must be performed by all, under penalties which delinquents pay.”

( Source: Secretary of War James Monroe, October 17, 1814, in a report to Congress, “Explanatory Observations accompanying the Letter from the Secretary of War to the Chairman of the Military Committee of the House of Representatives,” published in its entirety in the Annals of Congress, in the l3th Congress, 3rd Session of the House, pp 483-491.)
12.23.2008 7:31pm
MarkField (mail):

It doesn't matter too much whether the individual right to possess arms is philosophically rooted in an individual right of self-defense or a collective right to a militia. The point is that Tucker believes that the deeper right, whether collective or individual, is preserved by means of a legally protected individual right to possess arms, free of exceptions that allow the government to narrowly circumscribe the class of arms the citizen may own.


I agree that it doesn't matter too much in terms of gun ownership. It would matter if the right were collective, in the sense that the state (though not the feds) could place important restrictions on gun ownership and use as long as those restrictions were relevant to the militia.

I agree with the rest, in the sense that I'm fairly confident Tucker did believe in an individual right. I'm not entirely convinced that the particular quotes offered by Profs. Kopel and Lindgren prove that fact.


The founding fathers were mostly wealthy property holders who did not want anyone without property and under 25 voting. Why do you think they would give young landless people the absolute right to own a gun?


I agree with your post until your conclusion. There are two errors in your conclusion. First, Southern elites very much wanted all white males to be armed because of their fear of slave revolts. Second, your argument is relevant to a collective rights view of the 2A (because that allowed elites to control the lower class whites), but not to the elimination of the right to own guns (for the first reason stated).
12.23.2008 7:50pm
Andy Freeman (mail):
> Under the Second Amendment, for instance, the federal government could not, by abusing its military powers, abolish the militia system in favor of a standing army.

Huh? I'm pretty sure that the Federal govt has a standing army and ignores the militia.

No, the National Guard is not a militia. The feds own the equipment and pay the costs. There is some delegation of power to state governors, but it's revocable, as some governors discovered when they tried to keep "their" NG out of Nicaragua. Since the president can delegate to pretty much anyone, delegating to governors doesn't imply that the NG has some state nature. In short, the NG is just like the regular military - it just has some interesting enlistment provisions.
12.23.2008 8:31pm
Leif Rakur (mail):
Andy Freeman: No, the National Guard is not a militia.

But of course the Supreme Court and at least one Circuit Court have said that the National Guard is the militia of the Constitution in modern form. By this, I suppose they mean that the National Guard is the closest thing we have to the militia of 1787 abd 1789. There are differences. For instance, the militia service was conscript service, not voluntary like that of the National Guard, militiamen were supposed to provide their own weapons (although many didn't), and militiamen did not get paid to muster for training.
12.23.2008 9:30pm
Warsong1 (mail) (www):
I agree with Clayton Cramer, and, almost everyone else arguing for the 2ndA as an individual right. As to the Collectivists, I'd like to have three questions answered that might sway me to their side, if they can do so without non-sequiters or specious quotes out of context:

1. Can you build a Collective Society without Individuals?
2. Can an Individual exist without the guidance of a Collective Society, and, retain Rights not effected or controlled by society at large?
3. Are Rights granted by the Constitution, or, do they exist irrespective of any Document written by man?
12.24.2008 5:25am
Andy Freeman (mail):
> But of course the Supreme Court and at least one Circuit Court have said that the National Guard is the militia of the Constitution in modern form.

Oh really? They've said that the NG, unlike other branches of the US military, is not under presidential control?

I've no doubt that courts have used the word militia to describe any number of things, but as long as the NG is under the control of the president, the NG is a select militia, aka "the regular army".
12.24.2008 12:08pm
RKV (mail):
For all of you who incorrectly say the NG is not part of the militia. RTFS. This material is not hard and way too many posters here are doing nothing more than guessing. And because it's Christmas, I'll stick to the polite description of their contribution here.

TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311

§ 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.

Last amended in 1993 btw. Nota bene: the legal definition of militia membership has changed very little from the first federal act (1792).
12.24.2008 2:15pm
Andy Freeman (mail):
> For all of you who incorrectly say the NG is not part of the militia.

Not so fast. The claim is that "National Guard is the militia of the Constitution in modern form.", that is, the "well regulated militia" of the 2nd amendment. Note the singular.

Note that section 311 says that there are two classes of milita, the organized (the NG is one example) and the unorganized. In other words, Section 311 argues against the theory that the militia of the constitution is a singular.

Since it is settled law that the president has command authority over the NG, just as over the Army, it's completely appropriate to call the NG a select militia, which means that it's not the milita of the 2nd amendment.
12.24.2008 5:02pm
Leif Rakur (mail):

Note that the Supreme Court and the Fifth Circuit cited Art. I, 8, cl 15, 16, in saying that the National Guard is the modern militia.

“The National Guard is the modern Militia reserved to the States by Art. I. 8, cl. 15, 16, of the Constitution.” ( U.S. Supreme Court, Maryland v. United States, 1965)

“We begin our consideration of this appeal with full recognition that the national guard is the militia, in modern-day form, that is reserved to the states by Art I, 8, cls. 15, 16 of the Constitution. Maryland v. United States, 381 U.S. 41, 46 (1965).” (Fifth Circuit Court of Appeals, James H. Lipscomb v. Federal Labor Relations Authority (2003) )
12.25.2008 1:55am
Warsong1 (mail) (www):
From the Heart of Baghdad:

This description of the NG went down the tubes when Bill Clinton seized full Federal Control of the National Guard through an Executive Order. The States still retain nominal control, but, the President can call them up whenever he deems it necessary for rolls such as they play in Iraq. The NG is fully funded by the Federal Government, and, every piece of NG Equipment has a GP number (Government Property number, which I deal with, and, must account for, every day).

Where the States are concerned, Governors retain control within the borders of their States. However, again, the NG is fully funded by the Federal Government, and, nothing in this arrangement can be construed to name it anything except a Select Militia...one of the things the Founding Fathers feared the most.

The unorganized Militia is still every able bodied man or woman between the ages of 18 and 45, and, still recognized in both Militia Laws written within the lifetime of the founding Fathers, that remain in effect to this day.
12.25.2008 10:49am
Warsong1 (mail) (www):
For the Militia Laws, go to The Constitution Society and read The Militia Act of 1792, or, go to this Google page and, read until you go blind.
12.25.2008 11:18am
Leif Rakur (mail):
It appears that the Fifth Circuit and the Supreme Court do not regard the "unorganized" militia to be part of the militia of the Constitution. Certainly, the Constitution uses no such designation as "unorganized militia."

In effect, the Act of 1792 actually authorized a "select" militia such as the National Guard, since it said that the respective states could by law decide which persons to exempt from militia duty.

The Militia Act of May 8, 1792, which was officially titled "An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States," was repealed more that 100 years ago (1903).
12.25.2008 2:28pm
Warsong1 (mail) (www):
Leif Rakur:
"The Militia Act of May 8, 1792, which was officially titled "An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States," was repealed more that 100 years ago (1903)."

Ah, not having a great deal of interest in things around the turn of the 19th/20th Century, I seem to have missed that. But, I'm not unhappy, that simply wipes away the first half of the Second Amendment (Article IV/II), leaving, "The right of the people to keep and bear Arms shall not be infringed."

I like that...
12.26.2008 5:14am
RKV (mail):
Lief and Warsong, as noted above, 10 USC 311 is still the law, so any comments about the repeal of the Militia Act are moot. This material is not very hard, and willful ignorance is painful to observe.
12.26.2008 8:37am
Kevin P. (mail):

comatus (mail):
Oh, I smell Soros' project money in this. What have we got on this Cornell fellow? Is he another Bellesiles?


Saul Cornell and his Second Amendment Research Center are bought and paid for by the Joyce Foundation.
12.26.2008 2:35pm
Warsong1 (mail) (www):
RKV,

"(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."

If you read this, the definition of who is a member of the Militia has to refer back to that of the "Militia Act of 1792." Being unspecified as to membership excludes no-one. In fact, the original intent was to include those who were too young or old to be a member of the "Officially Designated Militia," but, could (and, would) step up to fight. At many Battles, during the Revolutionary War, the most effective warriors were those we would consider ancient.

I may be 68 years old, but, I'm an ex-Professional Archer that could be considered deadly with Bow, Pistol, Revolver and Rifle as far as I can see, with better than 20-20 vision. I'm also in Baghdad, and, I've been here, as well as Al Hillah and Basrah during their most trying times.

One might not think that boring would be a term that would describe Baghdad, but, I'm seriously looking for an opening in Afghanistan, somewhere near the sound of the Guns. I hate being bored.
12.27.2008 11:09am
Leif Rakur (mail):
Note to Second Amendment pundits and the U.S. Supreme Court:

When Alexander Hamilton and John Jay told Congress that “the people have a right to keep and bear arms,” there’s no way they could have been referring to a right of individuals to carry arms for their own private purposes. Below I explain why that is, but first read this:

“That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.”

This was a declaration in the bill of rights agreed to by Hamilton, Jay, and others as part of a proposed bill of rights transmitted to Congress, along with New York’s ratification of the Constitution, by that state’s ratification convention in 1788.

Now think about these facts:

If “bear arms” in the declaration had meant “carry arms,” then “bearing arms” in the same declaration obviously would have meant “carrying arms.” That would have been to say that the people in general had a right to carry arms but that only those actually capable of carrying arms should serve in the militia.

Such a meaning would be absurd, particularly in view of the fact that almost everyone not in diapers is capable of carrying arms of some kind.

Alexander Hamilton and John Jay surely were saying in this Second Amendment precursor that the people as a political community had a right to keep arms and provide militia service, with the actual militia duties being performed by those judged capable of doing so.

The right expressed in the Second Amendment is the same as that proposed by New York.

Check out New York’s declaration in Elliot’s debates, vol 1, p 328.
12.27.2008 3:53pm

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