The Commentary
The Gun Control debate.


Wednesday, June 11, 2003  

Let's Try This Again

You wrote:

"I don't believe that the right to keep and bear arms that the Second Amendment protects is a blanket right, without restrictions."
right after I had just written:
"Well, that might be because that's not what I'm trying to convince you of."
Followed by nearly 700 words to illustrate that point.

[Strother Martin] "What we've got here is failure to communicate." [/Strother Martin]

You'll note that the standard response to "I don't believe that the right to keep and bear arms that the Second Amendment protects is a blanket right, without restrictions" is "What part of 'shall not be infringed' don't you understand?" But I don't go there. Let's do this one more time:

The Second Amendment protects an individual right to keep and bear arms, equivalent to the individual rights of free speech, free assembly, and free worship.

You'll note that none of these other rights are, or have ever been "blanket rights, without restriction."

What these rights have received, under the rule of law, is rigorous protection against restriction under the legal basis of "textual meaning," (what did they write?") then "original intent" (what did they intend?") and then filtered through the tests of:"rational restriction," or "strict scrutiny", or "compelling state interest".

The Second Amendment has not received equal treatment. Certainly not since the Civil War.

If what you are looking for is evidence that the Founders did intend Americans (as they understood them - largely the free white male property owners) to possess their own arms and carry them without restriction, I present the following:

Federalist Papers, No. 29: "Concerning the Militia"
"Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year."
To wit, the Militia Act of 1792 thus required:
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, 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. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. 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 power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.
Which has since been replaced by U.S. Code, Title 10, Subtitle A, Part I, Chapter 13:
Sec. 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.
Continuing:

William Rawle's law text A View of the Constitution of the United States - published in 1892 and was the text used at West Point - stated:
"The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.

"The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."
Apparently not. And neither was the 14th Amendment, at least when it comes exclusively to extending the Second Amendment protection of the right to arms over the states.

Thomas Jefferson:
"The constitutions of most of our States assert that all power is inherent in the people; that... it is their right and duty to be at all times armed."
Not any more. At least not in most cities.
"No freeman shall be debarred the use of arms (within his own lands or tenements)."
Unless you live in Washington D.C. or Chicago, or NYC, or...

James Madison:
"[T]he advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms."
Seems the government, at least the state governments, don't want to "trust the people with arms" any more. And neither does the Federal government. But we have been getting severely mixed signals, I'll admit.

There are, of course, many more quotations which I'm sure you're aware of, but here's some interesting information you probably haven't seen: Isaac Weld's 1807 bookTravels Through the States of North America, specifically page 234 where he discusses how Americans are armed when travelling, and pages 237 and 238 where he discusses the militia system and how each man must provide his own weapon. This illustrates the reality of the individual right Chief Justice Taney was so terrified that free blacks would receive if they were recognized as citizens - the right to "keep and carry arms wherever they went." You want to disregard it because the decision was so obviously racist, but you reject the wrong part. What should have been rejected was the denial of citizenship and all that went with it. And that INCLUDED
"...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... 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."
Then there's Bliss v. Commonwealth, from 1822 in which the Kentucky Supreme Court held:
"The Right of the Citizen to Keep and Bear Arms in defense of themselves and of the state cannot be taken away or impaired. An Act to prevent the carrying of concealed weapons is unconstitutional and void."
This is the earliest state Suprememe Court case known to have covered this point. It was largely ignored by other courts. So much for precedent.

Have I made my point clear now?

posted by Kevin | 04:45


Monday, June 09, 2003  

OK, I'll Work On That

But it's going to have to wait until a bit later. I'm swamped. Give me a day or two. I'll try to keep it under 10,000 words. Really.

posted by Kevin | 20:45
 

No, feel free...

Okay... I don't believe that the right to keep and bear arms that the Second Amendment protects is a blanket right, without restrictions.

Furthermore, I'm thinking that there may be a link between Swiss military service and the low level of gun crime in that country.

posted by Jack | 16:58
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