Wanted: Meaningful response backed by a sound argument

Not the way it works. I make a claim, show my arguments, and then you address my arguments. Repeating "you didn't prove it" is nonsense! Not what one would expect from a serious poster.

Thanks anyway...

 

You make a claim
You demonstrate your arguments to be sound.
You haven't done that.
And you know it.

"It took me a long time to research the validity of my arguments,"
^^^
False statement, willfully made.

 

I do have to show the arguments that led me to make my claim. But once I do, it's YOUR burden to, at a bear minimum, address them to show in what way they are wrong or insufficient. Unless, of course, they are not wrong or insufficient. In which case all you have to do is bang the table and repeat "prove it!... prove it!" until your face turns blue.

Looks like the latter is the case so... thanks for playing.

 

One problem with a blog format such as this is you cannot have the full discussion in one go. We have to break it up into chunks, and circumstances in life prevent me from posting as frequently as I might like. This first chunk will deal with why the limited to militia participation right is a fraudulent interpretation.

Where I believe your argument fails is how the militia only limitation you place on the right actually destroys it.

I appreciate your reference to the Amicus brief. I read it when Heller was being debated. But what I suggest you are failing to understand is the framework of the argument regarding the militia. And this leads me into my argument which suggests your interpretation reads the Amendment in a vacuum and ultimately in conflict with the Constitution.

Let me deal squarely with your assertion of the purpose of the Amendment which your interpretation asserts:

I respectfully submit this is entirely incorrect, and it is perhaps this fundamental misplacement of the purpose of the Amendment—namely, what government it constrains—leads you astray. Here is why:

Despite Congress being granted the power to establish a national federal army, there was a universal fear of such an instrument. The best way to avoid reliance on this “engine of despotism” (to quote Patrick Henry) was to rely instead on a militia. This was easier said than done, for experience had taught the hard lessons learned from attempting to coordinate militia units from the several states which possessed often incompatible equipment and indifferent levels of training.

Nevertheless, it cannot be disputed that at the time of the nation’s founding this was the militia scenario: The states controlled all aspects of their militia—from its size, organization, and its arms.

The Federalists argued that the way to avoid reliance on a national standing army was to make the militia system a credible alternative. This required transferring the militia power to a strong central government which could impose uniformity over the several state militias. See, for example, Alexander Hamilton:

"This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union 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." Alexander Hamilton, Federalist #29. (note how Hamilton is actually quoting the language of Article I section

The Federalists ultimately won the day, and this argument over the control of the militia and its arms was settled by the adoption of the powers give to Congress in Article I Section 8. Here you find Congress has the power:

“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.”

Make no mistake over what this means. This is total power over the militia’s organization, the arms which may or may not be used by the members of that organization, and the training/disciplining of them.

Further, when you read the Constitution as a whole (which is a foundational rule of constitutional interpretation) we also find that Congress’ power over the organization, arms, disciplining, and the training of the militia is rendered absolute by the Constitution’s Supremacy Clause found in Article VI:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.”

In short, Congress holds the absolute power to deny the states the authority to provide its militia members with so much as a slingshot.

This power was readily recognized and accepted as the effect of the language of Article I Section 8—as made supreme by the Article VI Supremacy Clause. One Anti-federalist fear which arose from the realization of such a transfer of power to the federal government was this: A grant of total federal authority over the arming, equipping and disciplining of the militia would enable a federal tyrant to corrupt the militia and subvert its power to establish his rule. Hamilton ridiculed this fear and claimed the expressly reserved power of the states to appoint officers would prevent that fear from becoming reality:

"What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the sole and exclusive appointment of the officers? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia." Id.

Here Hamilton notes that a specific power was left in state control—that of appointing the militia’s officers. This is not an arming power but a power to establish and thus control the leadership of the militia.

I mention this specific reservation of state power in Article I Section 8 because it further erodes your argument. For yet another rule of constitutional (as well as statutory) interpretation is the ancient common law maxim (still intact today) of “expressio unius est exclusio alteriusm"—i.e., the expression of one is the exclusion of others not named. See United States v. Wells Fargo Bank, 485 U.S. 351, 357 (198.

Thus, when Article I Section 8 was drafted, the inclusion of one reserved power to the states shows the desire to exclude other powers being retained. This includes the power of a state to arm (and thus retain the power to neglect to arm) its militia.

Now if you don’t choose to believe me, then consider a well-known Anti-federalist response to all of this—as provided by a famous native son of my state:

"Let me here call your attention to that part which gives the Congress power '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.' By this, sir, you see that their control over our last and best defense is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither — this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory." Patrick Henry, Speech of June 5, 1788, before the Virginia Ratifying Convention, reprinted in The Anti-Federalist Papers and the Constitutional Convention Debates, beginning page 199, Mentor Books, 1986, edited by Ralph Ketchum. (bold emphasis added)

Here you find Henry absolutely on point in his interpretation of the effect of the vast power transfer found in Article I Section 8. And this is, indeed, the very power Congress continues to wield over the militia even today. Thus, I submit your argument which claims the purpose of the 2nd Amendment was to protect the people “from neglect by the State Government” is absolutely incorrect—for there is no power left to the state over militia arms for it to able to neglect.

Simply put, the argument over the arms of the “well-regulated militia” was entirely settled—and this power shift to Congress was well-understood—BEFORE the 2nd Amendment was drafted. This leads me to my argument that the interpretation you advance renders any “right of the people” null and void….

 

We agree on what the right is supposed to be in the amendment: A protection of the “right to keep and bear arms.” It is the understanding of exactly who is constrained to recognize and respect the free exercise of this right which is critical to our analysis. The Amendment’s protection is not from the power of the states to neglect it as you suggest, for they have no such power. Simply put, the protection the Amendment provides is from the power of the federal government. Indeed, another fundamental rule of constitutional construction is the universal understanding that the BoR is a restriction placed solely upon the power of the federal government. See, for example, Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 247 (1833):

The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.

See also more specifically United States v. Cruikshank, 92 U.S. 542, 553 (1875):

The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government….

An understanding of what government the amendments in the BoR were expected to restrain allows us to see the fatal flaw of the militia only interpretation of the 2nd Amendment: Its inability to explain how it fulfills the purpose the interpretation claims the Amendment was created for.

Why is this so? Simply put, it is because the interpretation rads the Amendment in a vacuum to blissfully ignore the power Congress has over the militia.

There is no “right of the people” associated with militia service. In fact, your only “right” regarding the militia is the initial choice of whether to volunteer or not.

Congress alone has the power to organize the militia. This includes setting its size. If Congress decided the size of the Virginia militia would be 300 men, then there is nothing that either you, or I, or the state could do about it. You have no say or right here.

Congress’ organizing power also grants it a power of who may be admitted for service, and it is not required to accept you. In fact, the only portion of the militia admission power not dominated by Congress is the power specifically reserved to the states to appoint officers. Yet even this is beyond your power to freely exercise—for it is controlled by the state. This domination of the ability to enter militia services is what the Heller majority noted when it said:

Thus, if petitioners are correct, the Second Amendment protects citizens' right to use a gun in an organization from which Congress has plenary authority to exclude them. District of Columbia v. Heller, 554 U.S. 570, 600 (200

Additionally, assuming Congress exercises its power to admit you, you are not granted any right to have any arms. Congress alone decides what, if indeed any, weapon you will have access to use. You have no say or right here.

Further, even if you are permitted to enter the militia, and even if Congress decides to allow you to touch a weapon, you must deal also with Congress’ power over discipline and training—from which Congress holds the exclusive power to decide when—if at all—you may train with your firearm. You have no right or say here.

Finally, if you are allowed to have a firearm and even allowed to train and become proficient with it, then the entire scope of your “right”—the when, where, and for what purposes you may “keep and bear” it as a militia member—is totally controlled by either the state or the federal government depending on which government authority is exercising control over the militia at the time. You have no say or right here.

Thus, when you compare your interpretation of the RKBA to the remainder of the Constitution, your interpretation defines the “right of the people” to be this:

You may exercise the ability to “keep and bear arms,” but only if we choose to allow you to join the club, and then only if we choose to provide you with “arms” (by which we mean only the ones we decide to allow you to have—if any), and then only for the purposes and activities which we command you to do for us and in our name.

That is not a “right of the people.” That is merely a privilege which the government possesses the absolute power to bestow or deny the citizen.

Therefore, the ultimate goal of your interpretation—denying any individual RKBA beyond government controlled militia service—leaves us with a right which you have divorced from any ability to meet its stated purpose, i.e. the protection of the “right of the people to keep and bear arms” from power of Congress to deny it absolutely.

Now I have run my mouth for a bit, and its only fair for you to have your turn. I welcome your thoughts on my attack on both your interpretation of and the purpose you assign to the Amendment.

If I might risk a suggestion, I would propose this: You go ahead and answer my criticism of your interpretation, and I will return and attempt to answer the questions you raised in your last post. To me that is a fair way to handle it, and you may accept this as my promise to provide my explanation of the militia preamble—and what effect, if any, it has on the RKBA—from which you may proceed to attack what I say and ask me to defend it.

---

Mr. Madison has introduced his long expected amendments. . . .It contains a bill of rights [including] . . . .the right to keep and bear arms.--Fisher Ames, 1 Works of Fisher Ames, pp. 52-53 (1854) [Letter to Thomas Dwight, June 11, 1789].

The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people. Fisher Ames, 1 Works of Fisher Ames, pp.53-54 (1854) [Letter to F. I. Minoe, June 12, 1789].

Last Monday, a string of amendments were presented to the lower house; these altogether respected personal liberty. . . .William Grayson, 3 Patrick Henry, p. 391 (1951) [letter from Grayson to Henry, June 12, 1789].

 

You have made innumerable claims.
Not -one- of them have you demonstrated to be true -- If you have a point to make, that's your burden
Not one.
To wit:

A claim you have not, and can not, demonstrate to be true
Disagree? Cite the post, paste the text.

A claim you have not, and can not, demonstrate to be true
Disagree? Cite the post, paste the text.

A claim you have not, and can not, demonstrate to be true
Disagree? Cite the post, paste the text.

A claim you have not, and can not, demonstrate to be true
Disagree? Cite the post, paste the text.

This is a false claim, willfully made, as you know you cannot demonstrate any of them to be valid.

 

People who’s solution to everything is “ban it” are never satisfied. Like greedy corporations, it is never enough. There is always another moral panic that justifies (to them) some more banning and regulation.

So I will answer for them:

There is no point at which they will be satisfied. Once all the semi-autos are gone, all the rest of the guns will be next with few exceptions. Many posters would be personally gleeful if we not only banned all semi-autos, but we didn’t offer to pay for them either (going above and beyond other countries). The reason for this is spite.

And that is another reason their answer is “there is no point they will reach that will make them satisfied”, spite. They don’t just want to regulate gun owners, they hate them and want them to suffer.

Moving back to not being satisfied, after the rest of the guns go, look to the UK for what comes next. They despise stand your ground and many really don’t like any self defense being deployed (you are being a vigilante). They would rather you choose between fleeing your home or risk jail for trying to stand up to your home invaders. Knives will be next, then self defense in general after that. Then it will go to “what is that hammer doing in your car, is that part of your occupation? You are under arrest for having a dangerous weapon.”

Moral panics, and the people who love them, can never be satisfied. It doesn’t stop until you have no guns, knives, anything for self defense, can’t legally defense yourself and the police are the only ones with access to weapons so as better to control you and the rest of the worker bees.

 

That only supports my argument. I will repeat it: your argument was that the 2nd A had to protect... something... from the Federal Government. And originally you arbitrarily fill that "something" with an "individual right to own weapons" I have shown (through the Historians' Amicus Brief) that there was very little mention of such a right in the deliberations. And that little mention there was had very little support. So there is no reason, linguistic or historical, to introduce an individual right to own weapons. The alternative to this (proposed by the Historians) is precisely that, lacking an appropriate army, a militia was necessary for the protection, as you correctly point out. And that they feared States might neglect (and some were already neglecting) their state militias. So the 2nd A was enacted to protect the people's right to form part of those militias, so long as they were "well regulated". And what "well regulated" means is established in clauses 15 and 16 of Article 1 of the Constitution.

But here and in the following paragraphs you acknowledge that the purpose of the 2nd A refers to a military scenario. So it appears like we agree on that.

And, at this point, all I need to underline is the fact that the language (as explained in the Linguists' Amicus Brief) also supports the conclusion that the 2nd A was meant to protect the right to possess weapons for military-related purposes. And that there is no interpretation possible of the language used that would lead us to believe this granted some individual right to own weapons for any other purposes. There is, of course, and individual right to keep and bear arms as part of a militia. Which is the only reason an individual would "bear arms". As historian Garry Wills puts it "one does not bear arms against a rabbit". You only bear arms against an enemy force. And you fight it collectively as part of a well regulated militia. You don't fight the British Army individually.

The right to bear arms is not the same as a right to own weapons. The former is for "collective" use as part of a militia to defend the security of a free state, the latter is for individual use to hunt, or sport or shoot at a robber. Completely different things. The 2nd A only refers to the former.

 

If you are ever interested in learning how a serious debate is carried out, you might want to take a peek at this and subsequent posts.

http://www.politicalforum.com/index...-sound-argument.585248/page-9#post-1072475672
or
http://www.politicalforum.com/index...sound-argument.585248/page-10#post-1072477445

 

Golem, your latest reply avoids my argument. To restate, my primary argument was this:

The goal behind the “collective militia only right” interpretation was not to understand a workable right. Its goal was to deny an individual RKBA. To do this it imagined a right which exists only within the sphere of militia service. This limits any RKBA to an activity which is totally dominated by the power and the will of Congress. Thus, this interpretation of the 2nd Amendment reads it to protect a right which cannot exist. This is the ultimate proof that this interpretation is entirely fraudulent.

My request, since you claim allegiance to this interpretation, was for you to enlighten me by stating your argument for how your right actually works. I ask this because I already know the attempt, and the subsequent discovery that it cannot be made to work, will demonstrate the failure of this interpretation.

Are you willing to address this criticism or not?

Here I must state my general preference for how people should respond to my arguments. I greatly prefer that you address what I did say rather than what you wish I had said. I neither said nor implied your wishful interpretation of an acceptance that the 2nd A refers to a military scenario.

Further, this is even inconsistent with your own prior interpretation of my position, which said: you arbitrarily fill that "something" with an "individual right to own weapons." And so I further state that my preference is—when considering what I actually say—that your opinions of it remain free from your own internal contradictions.

Exactly. Here at least you are accurately summarizing a point I did make. I have deconstructed your opinion that the Amendment was designed to protect against a state choosing to neglect its militia. In that opinion you are alone. Anyone who examines this position can see that the adoption of Article I Section 8 transferred the militia power to Congress—and thus left no power behind for the state to neglect. Further, your opinion runs contrary to the entire history of Constitutional interpretation of the purpose of the BoR—which was that these amendments were intend to, and did, act only as a restraint upon the abuse of power held by the federal government.

I have stated you are wrong to hold your opinion that the purpose of the Amendment was to protect against state neglect of the militia. Do you accept my argument, or do you have a different response to this?

This is not correct. See, for example, the following from a case which specifically describes the 2nd Amendment term “bear” arms:

Surely a most familiar meaning is, as the Constitution's Second Amendment (“keep and bear Arms”) (emphasis added) and Black's Law Dictionary, at 214, indicate: “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” Muscarello v. United States, 524 U.S. 125, 143 (199 (Ginsberg, dissenting) (emphasis on the word “bear” in the quote appears in the original and was not added by me)

As I’m sure you are aware, Justice Ginsberg was a dissenter in Heller, and in the above opinion she was joined by Justice Stevens, who wrote one of the dissenting opinions. My how quickly their opinion changed….

It is absolutely incorrect to argue that the word “bear” can only apply to a military context.

And yet we find the Amendment reads “keep and bear” rather than simply bear. “Keep” cannot have a military only context.

In addition, on the topic of a “collective right,” if we look beyond the 2nd. Amendment we find the specific phrase “the right of the people” is used in three amendments. It is used in the 1st, 2nd, and 4th Amendments. Your argument requires one to accept that the exact same phrase is defined in more than one way. Namely, that the phrase “the right of the people” refers to an individual right to peaceably assemble, and an individual right to petition the government in the 1st Amendment, is then somehow transformed into a collective right to keep and bear arms as part of a militia in the 2nd, only to re-transform back into an individual right to be free from unreasonable search and seizure in the 4th.

There is absolutely zero evidence that our founders intended this exact phrase should be subjected to such a linguistic backflip. This is particularly true when, as I have said, these mental gymnastics are used to define a 2nd Amendment right which cannot exist.

 

Here I submit you are also wrong. You must understand that no rights were “granted” by the BoR. It merely recognized pre-existing rights which our founders believed were important enough to be enumerated for specific protection. I submit your argument represents a fundamental misunderstanding of Constitutional law:

The law is perfectly well settled that the first ten Amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guarantees and immunities which we had inherited from our English ancestors, and which from time immemorial had been subject to certain well recognized exceptions arising from the necessities of the case.. . . Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897)

Our founder’s understanding of the rights “which we had inherited from our English ancestors” comes from the expression of these rights found in Blackstone’s Commentaries. Regarding the RKBA, this work stated:

The fifth and last auxiliary right of the subject, that I shall present mention, is that of having arms for their defense, suitable to their condition and degree and such as are allowed by law. Which is also declared by the same statute W & M st. 2.c.2. (i.e. The English Bill of Rights) and it is indeed a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. In these several articles consist the rights, or as they are frequently termed, the liberties of Englishmen. . . .

And we have seen that these rights. . .consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights. To preserve these from violation, it is necessary that the constitution of parliaments be supported in it full vigor. . . .And lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next to the right of petitioning the king and parliament for redress of grievances; and lastly, to the right of having and using arms for self preservation and defense. Sir William Blackstone, 1 Commentaries on the Laws of England, p. 136 & 140 (1st. ed. 1765, reprinted 1979).

This is not a militia only right. It is a right to have individual arms for self-preservation and defense. The importance of Blackstone’s Commentaries cannot be overstated. For example, when Supreme Court Chief Justice John Marshall attended law school his textbooks were the Commentaries and the Bible.



(As a side note, if you look at the first American edition of Blackstone’s Commentaries, you will find its editor, Sir George Tucker, made this observation on the RKBA being a component of the right of self-defense:



The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest possible limits...and [when] the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. Sir George Tucker, Judge of the Virginia Supreme Court and U.S. District Court of Virginia , in I Blackstone COMMENTARIES, Sir George Tucker Ed., 1803, pg. 300)



To put it simply, the RKBA is a component of the natural individual right of self-defense. And this understanding of an individual RKBA outside militia service was not limited to the legal profession. Consider, for example, the call to arms by the citizens of Boston while the city was under military occupation by General Gage and what ultimately happened to these arms. Listen to how the colonists in Boston laid claim to a RKBA:



Instances of the licentious and outrageous behavior of the military conservators of the peace still multiply upon us, some of which are of such a nature, and have been carried to so great lengths, as must serve fully to evince that a late vote of this town, calling upon the inhabitants to provide themselves with arms for their defense, was a measure as prudent as it was legal. . . .It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their defense; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression. O. Dickerson ed., Boston Under Military Rule, p79 (1936) (quoting from what was at the time the most widely circulated periodical in the colonies, A Journal of the Times).


Here we see the citizens of Boston arming themselves. They are asserting it is their right to do so as individuals who were neither connected with nor who had any duty to use these arms as members of any militia. Of course, the suggestion was made by certain British authorities that it might be improper for them to individually arm themselves like this, to which the following reply was made:


It is certainly beyond human art and sophistry, to prove that the British subjects, to whom the privilege of possessing arms is expressly recognized by the Bill of Rights,. . .are guilty of an illegal act, in calling upon one another to be provided with them, as the law directs. Id. At p. 61.


I chose this example because it is by no means trivial. The citizens of Boston who had armed themselves were later disarmed by a trick which so shocked the conscience of the colonists that the Continental Congress chose to include it as a specific complaint against British misrule.


Many of us know the Declaration of Independence. Few of us recognize that when open hostilities erupted at Lexington and Concord the Continental Congress issued another declaration—the DECLARATION OF THE CAUSES AND NECESSITY OF TAKING UP ARMS (July 6, 1775). In this document to Congress felt the deprivation of private arms (again, outside militia service) was an act odious enough to draw a specific complaint. Witness the complaint against the first mass confiscation of private firearms program—as accomplished through the ruse of a “secured storage” requirement:


The inhabitants of Boston being confined within that town by the general their governor, and having, in order to procure their dismission, entered into a treaty with him, it was stipulated that the said inhabitants having deposited their arms with their own magistrates, should have liberty to depart, taking with them their own effects. They accordingly delivered up their arms, but in open violation of honor, in defiance of the obligation of treaties, which even savage nations esteemed sacred, the governor ordered the arms deposited as aforesaid, that they might be preserved for their owners, to be seized by a body of soldiers; detained the greatest part of the inhabitants in the town, and compelled the few who were permitted to retire, to leave their most valuable effects behind….


Even here we see the military governor, General Gage, is not challenging the understanding that the citizens have an individual RKBA outside militia service. The acceptance of this right leads him to disarm them by ruse instead. And, having achieved his goal of limiting resistance to oppressive measure by largely disarming the populace:


The general, further emulating his ministerial masters, by a proclamation bearing date on the 12th. of June, after venting the grossest falsehoods and calumnies against the good people of these colonies, proceeds to '[D]eclare them all, either by name or description, to be rebels and traitors, to supersede the course of the common law, and instead thereof to publish and order the use and exercise of the law martial.'


There can be no question that our forefathers believe we had a RKBA outside militia service—and that this RKBA was important. Indeed, it was an assumed and accepted fact at the time the Constitution was adopted. See, for example, this argument in support of adopting the proposed Constitution:


“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.” Noah Webster, "An Examination into the Leading Principles of the Federal Constitution" (1787) in Pamphlets on the Constitution of the United States (P. Ford, 188.


See also the comments in favor of the Constitution’s adoption by the man who would later write the 2nd Amendment:


Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the 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. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. James Madison, The Federalist Papers #46


Madison knows full well that the militia arming power is being given to Congress, and that the states would have no power to arm their militias. What he is speaking of here is the individual RKBA which exists outside militia service and which, in extremis, could provide a source of arms to resist a federal tyrant.


So I must respectfully disagree with your argument that the 2nd Amendment “granted” a right. It recognized this pre-existing right.

 

Fascinating. I have never had that “line through” text show up before which we see above....

Now as for the 2nd Amendment’s militia clause, it is nothing more than a preamble. Preambles were often used by our founders. Preambles which are attached to enumerated rights serve two purposes:

1. They are a statement of public policy; and

2. They explain why the right which follows is being specifically enumerated for protection.

To illustrate this, consider an example from my Constitution of Virginia (which, as a proud son of the Commonwealth, I note was enacted BEFORE the Declaration of Independence):

SEC. 16. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other. Constitution of Virginia, June 6, 1776.

Here you can see the right is this: “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.”

The preamble explains why this right was important enough to be enumerated in the Virginia Constitution for protection:

“That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence….”

Here is another example, this time from the Constitution of North Carolina (December 14, 1776):

That retrospective laws, punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive, unjust, and incompatible with liberty; wherefore no ex post facto law ought to be made.

From this provision we see another use of a preamble to state a principle—“That retrospective laws, punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive, unjust, and incompatible with liberty”—followed by the operable language of the right—“wherefore no ex post facto law ought to be made.”

Turning to the 2nd Amendment, the militia clause is nothing more than a restatement of the policy goal which holds that the best way to protect liberty was to avoid reliance on standing armies for defense and instead to rely on a militia. Indeed, even a cursory search of state constitutions will discover a number examples of this policy statement:

CONSTITUTION OF VIRGINIA (June 6, 1776)

That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

DELAWARE DECLARATION OF RIGHTS (September 11, 1776)

That a well-regulated militia is the proper, natural and safe defense of a free government. That standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the legislature.

CONSTITUTION OF MARYLAND (November 3, 1776)

That a well-regulated militia is the proper and natural defense of a free government.

That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the legislature.

CONSTITUTION OF NEW HAMPSHIRE (June 2, 1784)

A well-regulated militia is the proper, natural, and safe defense of a state.

Standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the legislature.

Here you can see the source of the language found in the 2nd Amendment preamble: “A well-regulated militia, being necessary to the security of a free state.” Madison did not create new language. He merely copied from these universally accepted expressions of public policy. Indeed, the words “free state” are used because the expressed goal is to have a government where citizens do not live in fear of a tyrant’s ability to seize power and oppress them. Thus, each of these statements—including the 2nd Amendment’s militia preamble—merely represents an expression of a policy goal, a universally believed truth, if you will: “Standing armies are a threat to liberty, and we should whenever possible avoid them and rely upon a militia.” That is all they are.

In sum, while the militia clause is a statement of why the right was felt important to enumerate in the BoR, it is NOT the right itself. The right is the individual RKBA. You want to know why little comment was made about private arms outside militia service? It is because this was already a universally accepted fact. There was no need to restate the position that the Americans possessed the “advantage of being armed” any more than there was a need to also note that tomorrow the sun will rise in the east.

Now this does lead to the question: Why does the militia preamble precede the RKBA as the explanation for why its was important to enumerate?

The answer to this question lies in the natural link and relationship of the time between the individual RKBA and the militia. In short, the RKBA was not dependent on the needs of the militia. Rather, the militia was dependent on the individual RKBA which existed outside militia service as the accepted source of the militia’s arms. See, for example, the case most often misunderstood by anti-individual RKBA advocates:

“The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of the Colonies and the 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 a kind in common use at the time.” United States v. Miller, 307 U.S. 174, 179 (1939). (bold emphasis added

This was what the entire experience these men had with the militia. Indeed, Congress’ first real exercise of its new Article I Section 8 power over militia arms—the 1792 Militia Acts—was a decision to continue the common practice of requiring militia members to appear for service bearing their private firearm:

“That every citizen, so enrolled and notified, shall provide himself with a good musket or firelock…and shall appear, so armed, accourtred, and provided, when called out to exercise or into service….” https://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=003/llac003.db&recNum=691

These were not arms which were used only for militia service. These were privately held arms which everyone—from the staunchest Federalist to the most fiery Anti-Federalist—accepted was the individual citizen’s right to keep and bear outside militia service and which were—like their owners—impressed into temporary militia service as needed.

This is why there was a link between the individual RKBA and the militia clause in the Amendment—the militia was reliant on the existence of this right for its arms. And because the individual RKBA was viewed as the source of militia arms, recognition of this right was important to “the well-regulated” militia.

I have considerably more argument and evidence on these points but I want to stop here for now to give you another opportunity to address the points I have made and provide me your reasons for any disagreement. Here is what I ask:

As an adherent to the “collective militia only” interpretation, can you tell me what the “right” is which the 2nd Amendment protects from the power of Congress to deny it to “the people”?

I submit that you cannot do so.

If you cannot do so, then are you willing to concede that this interpretation is fraudulent?

I submit that it is.

Since you have argued that the Amendment “doesn't protect the people from the Federal Government, it does protects them from neglect by the State Government,” can you tell me what power the state has retained for which it might possibly be guilty of neglecting?

I submit that you cannot do so.

Can you cite any authority that shows the BoR created or “granted” rights rather than recognizing specific pre-existing ones—like the preexisting individual RKBA outside militia service?

I submit that you cannot do so.

I welcome your thoughts on these observations.

---

"On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text, or invented against it, conform to the probable one which was passed." Thomas Jefferson, The Complete Jefferson, p. 322 (1957) [Letter to William Johnson, June 12, 1823].

"And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the Press, or the rights of Conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms. . . ." Samuel Adams, Debates & Proceedings in the Convention of the Commonwealth of Massachusetts, 86-87 (February 6, 178.

 

Thank you for your further admission that you know cannot demonstrate your claims to be true.
When you think you -can- make a claim you -can- demonstrate to be true, let us know.

You know your statement, above, is false.
Why do you make statements you know are false?

 

I don't claim allegiance to this interpretation. My interpretation is quite simple. I can summarize it the following way: The right to keep and bear arms applies only to militia because that is literally what the 2nd A says.

I'll address any criticism you care to make about arguments I have made. Can't do the same for criticisms of arguments I haven't made.

Fair enough. I re-read the post I responded to and I still believe that that would be the most reasonable inference from your post. But if you didn't intend that to happen then it would save us a lot of time if you stated what it is you are trying to prove. Otherwise my answer would simply be that it makes no difference to my argument whether it protects the people from the federal government or from neglect or from the state government, and that would be a completely separate topic that is irrelevant to my point. If you want to address my point, great. If we are in agreement about my point and instead wish to change the subject, that's fine. Maybe I have something to opine about this new topic. Maybe not. Though, of course, I already did submit a bit of an opinion. But not actually relevant to my point.

BTW, I'm sure you have notice that your posts are pretty long. I don't want to make them even longer by responding to matters that are irrelevant to the point we are discussing.

Well... in that we agree. It protects "something". What it is it protects is a different topic. My argument at this point is the one I stated above.

That opinion is not quite mine. It's the opinion that the historians wrote in the Amicus Brief. I find it reasonable, but it's just a different topic. Hopefully when you get to this point you will have addressed my real argument, as I stated it above.

I have not disputed that there have been many misinterpretations of the words. Most notable of all that.... obliteration of the Science of Linguistcs that Scalia made in the Heller decision. But it's the language of the 2nd A that I am discussing.

It doesn't. What makes this interpretation clear is that it's followed by "and bear arms" (and no other qualifiers), which clearly refers to a military-type scenario. And most particularly by being prefaced with the reason why you "keep and bear arms" that is clearly the need for a "well regulated militia", also with no other qualifiers.

There is an individual right (if you want to interpret it that way) to "keep and bear arms" for the defense of the state as part of a well-regulated militia (which is a collective entity). This right was violated by Trump when he decided not to accept transgender people in the military. But there is no individual right to own guns.

No idea what "backflip" you are talking about. A military-type scenario is how it would be understood by any American with an average education in the 17th century when they heard the idiom "keep and bear arms". Corpus Linguistics (reference below) is a database of all writings, newspaper articles, books, court decisions, pamphlets ... basically everything that was written at the time the Bill of Rights was enacted. 67% showed of "bear" close to the word "arms" in a collective (military). 17.4% had an individual component, but they required a different qualifier such as "bear arms for the defense of the state and for personal defense". But, again, you do not bear arms against a rabbit. An 17th century American would laugh at such an interpretation (heck! even a 21st century American would find it odd). There was one mention of a sign in front of a Church that read "Please do not bear arms inside the House of Christ" (something like that). Which was clearly sarcastic.

https://blog.harvardlawreview.org/corpus-linguistics-and-the-second-amendment/

 

"Grant", "confer", "reaffirm", "concede" recognize"... It makes absolutely no difference to my argument. I'm sorry you probably took a lot of time to research this. And I don't want to belittle it, but it's just irrelevant to my point. I use "grant" for short. But you can substitute it for whichever you think is best.

My point is that the 2nd A does not "express" or "refer to" [or insert your favorite word] a "right to own guns". And the evidence is that the text does not say that it... does that (whatever word you want to substitute for "does that").

It would be easier if you made you points or counter-arguments succinctly. Without engaging on long discourses about one particular and irrelevant term.

BTW, when I said above " But there is no individual right to own guns." I meant there is none in the 2nd A.

 

I wish the founders had written 2A with an eye toward intentional misinterpretation and mangling of definitions.

My rabbit hunting with scoped rifle pictures didn't take. Google images has plenty.

 

After reading your long posts here, I can't recall any disagreement. I learned quite a bit.
On a side note, do you consider police as standing militia? There's no wrong answer. I think they are.
14A, section1 makes no distinction between police citizens, militia citizens, and all other citizens.

 

But your problem, which completely refutes your entire premise, is that there is no such language in the 2nd A. It quite specifically states the peoples right, not the militias right. This is demonstrated by numerous supreme court rulings. Your position has no basis in fact. Your interpretation does not exist in law, or by the rules of grammar.

 

Do you not consider guns to be arms?

 

Sorry if my posts are too long, but I am replying to someone who suggests that others need to do their own research (a fair position BTW), and I just wanted to present him with some research he may not have seen yet.

I don’t believe the police is a militia. I believe there is ample evidence that the states retained police power when the Constitution was drafted. What the states did lose was power over the militia’s organization and arms, which was transferred to Congress. Congress decides all matters of militia organization and arms, and what Congress establishes then falls under the control of the governor until such time as it is called into national service. Today’s National Guard is merely the result of Congress using its Article I Section 8 power to legislatively organize and arm the militia.

This power over the militia is what shows the “militia only “ interpretation is fraudulent, for it takes a “right of the people” and limits it to an activity which Congress totally controls, thereby rendering a “right of the people” to be merely a privilege which the federal government has the absolute power to grant or deny access to.

No one has ever explained how this “limited to militia participation” right actually works—because it cannot.

 

If you believed it was irrelevant to your argument then why mention it?

In any event I disagree, and I argue that it is not only relevant but critical to understanding the right. The reason is very simple:

If you are enumerating a pre-existing right, then the RKBA found in the Amendment is the pre-existing RKB private arms—a right which did pre-exist the Constitution—which was laid claim to by the colonists—and which was the traditionall source the militia relied upon for its arms.

If you are “granting” a right, then you are making up something new out of whole cloth which can be defined however you like.

We already know the universally accepted position was the BoR did not “grant” any rights but instead enumerated certain pre-existing ones which our founders believed were important.

In addition to this, I will note that when the BoR was circulated during the ratification process Madison campaigned in support of his amendments. His friend (and fellow Federalist), Tench Coxe, sought to assist him by publishing an explanation of each of the rights in the several Amendments for consideration by the public at large. Concerning what was ultimately ratified as the 2nd Amendment he wrote the following explanation:

"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear private arms." Tench Coxe, Remarks on the First Part of the Amendments to the Federal Constitution. Published under the pseudonym, "A Pennsylvanian" in the Philadelphia Federal Gazette, June 18, 1789 at 2 Col. 1.

In addition, Coxe penned a letter to Madison to inform him of his attempt to help explain the proposed amendments. He included a copy of his “Remarks” with that letter. This is how he explained to Madison his motivation for writing his remarks:

“It has appeared to me that a few well tempered observations on these propositions might have a good effect. I have therefore taken an hour from my present Engagements, which on account of my absence are greater than usual, and have thrown together a few remarks upon the first part of the Resolutions. I shall endeavour to pursue them in one or two more short papers. It may perhaps be of use in the present turn of the public opinions in New York state that they should be republished there. It is in fed. Gazette of 18th. instant.” Tench Coxe, 12 Madison Papers, pp. 239-240 (Rutland Ed. 1979) (Letter from Coxe to Madison, June 18, 1789).

Madison received the letter and the enclosed copy of the published “Remarks” while he was campaigning for the Amendments in New York. This is how Madison replied to Coxe:

“Dear Sir,
Accept my acknowledgments for your favor of the 18th. instant. The printed remarks inclosed in it are already I find in the Gazettes here. It is much to be wished that the discon[ten]ted part of our fellow Citizens could be reconciled to the Government they have opposed, and by means as little as possible unacceptable to those who approve the Constitution in its present form. The amendments proposed in the H. of Reps. had this twofold object in view; besides the third one of avoiding all controvertible points which might endanger the assent of ⅔ of each branch of Congs. and ¾ of the State Legislatures. How far the experiment may succeed in any of these respects is wholly uncertain. It will however be greatly favored by explanatory strictures of a healing tendency, and is therefore already indebted to the co-operation of your pen.” James Madison, 12 Madison Papers, p. 257 (Rutland Ed. 1979) (Letter from Madison to Coxe, June 24, 1789).

Madison clearly had an opportunity to suggest that Coxe had it all wrong, and he did not do so in reply. Neither did he ever do so in public (for example: “you may have read this from Coxe but that is not what it is really about…”) Instead he acknowledged that the push for his amendments was “already indebted to the co-operation of your pen.”

This is, to my knowledge, the only explanation of the 2nd Amendment provided to the public at large for their consideration of whether they should support its passage or not.

And so my question is: Were they recognizing the pre-existing RKBA, or were they creating a new “militia only” right (which, as I have argued, cannot actually exist within the power structure of the Constitution)?

I note this history for you because I do not know whether you have ever seen this before—it having been entirely ignored by the “historians” brief you have cited.

 

You have consistently said this, and I have understood your argument form the beginning. This is why I have now repeatedly asked you to tell me how your interpretation actually works.

To restate my question for a third time: Since this RKBA is a “right of the people,” how does limiting it to the militia provide “the people” with any right?

You know now that Congress has the power over the militia—its size; who may or may not participate; everything that would be considered “militia arms”; when, if at all, the participants may have arms in the militia; and for what, if any, purpose they may so much as lay a hand on them. And you now know this power is made absolute by the Supremacy Clause. Your interpretation limits any “right of the people” to the scope of this activity over which Congress has the total and absolute power to deny the exercise thereof.

If we are building a car which does not and never can run, then we must all agree we have a bad build. If we build an interpretation which likewise cannot fulfill its function, then we have to be prepared to admit it is a bad interpretation—and your interpretation destroys any “right of the people” in the Amendment.

I’m asking you to tell me otherwise. Take the wheel, crank the car, hit the gas, and show me how your interpretation runs if you want me to purchase what you are selling.

How does the 2nd Amendment—as you interpret it—protect anything we can call a “right of the people” when you limit it to “applies only to the militia?” How does it stop Congress from abridging it entirely?

Then now is again your opportunity to do this with the above argument I have made. This is the third request for you to do so.

And while we are on the topic of addressing argument you did make…you have claimed the purpose of the Amendment is this:

When I said you were alone in your opinion that the Amendment was designed to protect against neglect of the militia by the state governments, I meant it. Your utterance of this belief is the first time I have ever heard anyone argue this. I’ve told you I have read the “historians” brief before when it was originally filed. In addition, the ideas of its principle author, Carl Bogus, have been much discussed over the years in this forum. I tell you now he has never made the claim you make above in any writing of his we have seen before. Nevertheless, I do understand that you believe the authors of the brief agreed with you:

As a reminder, I did address your “real” argument—your “militia only” interpretation of the Amendment—three times.…I await your reply.

While we wait, let me say that a careful reading of this brief demonstrates that they did not agree with your opinion. In fact, having re-read the brief I am prepared to assert that you have fundamentally misunderstood your own research.

When you read the brief you see them outlining the historical arguments made during the original Constitution’s ratification debates concerning who should have control over the militia’s organization and arms. When you read the brief, you will see that what they did talk about was the arguments concerning the wisdom of transferring the militia power to Congress—with Federalists (like Madison and Hamilton) arguing it was necessary, and Anti-federalists (like Patrick Henry) arguing it would lead to disaster. And you will understand that this debate concerned the adoption of the Constitution and Article I Section 8 BEFORE the 2nd Amendment was ever discussed. To quote your own research as it discussed the debate over Article I Section 8:

When this clause was debated on August 23, several delegates again criticized the proposed scope of congressional jurisdiction over the militia. But their reservations were rebutted by other delegates, led by Rufus King, speaking for the committee, and Madison, who insisted that the only effective militia would be one ultimately controlled by Congress. This discussion included important comments on how the militia would be armed. Madison wondered whether King’s initial definition of “arming, [as] specifying the kind size and caliber of arms” would exclude Congress “furnishing arms” to the states. King replied that “arming meant not only to provide for the uniformity of arms, but included authority to regulate the modes of furnishing, either by the militia themselves, the State Governments, or the National Treasury.” Several efforts to weaken the proposed clause in the interest of preserving greater state control over the militia proved futile. Madison and others argued that “The states neglect their militia now,” and would do no better after the Constitution gave the national government greater resources for national defense. At p16 of the brief.

Here your brief notes Madison is rejecting a compromise which would have given some, but not all, of the organizing and arming power to Congress. This compromise would have left residual power to the states which they could neglect, and Madison is stating that is the problem we have now as his reason not to compromise but to have all the organizing and arming power transferred to Congress. In short your brief correctly concludes that it was the transfer of the organizing and arming power to Congress in Article I section 8 which was intended to protect the militia from state neglect—and not an Amendment which had yet to be drafted or discussed.

Further, your brief goes on to argue that nothing in the subsequent adoption of the 2nd Amendment altered this entire transfer of power over militia organization and arms to Congress. To quote your own research again:

“The amendment, as revised, would still assuage AntiFederalist concerns by stating a principled commitment to the value of a militia. But it would not hinder Congress in using its best judgment to determine how to organize, arm, and discipline an effective militia.” At p29 of the brief.

And so I contend that you have drawn the absolute wrong conclusion from your research. If you wish to address this specific criticism, then I invite you to cite to the brief where it argues the Amendment “doesn’t protect the people from the Federal Government, it does protects them from neglect by the State Government.”

 

It IS the people's right to bear arms to ensure the security of a free state. But there is no right that is stated on the 2nd A to own guns. That was made up more recently.

 

Only when used in a military scenario. You use a gun to hunt rabbit, but that doesn't mean you "bear arms" against a rabbit. You bear arms against an enemy. The 2nd A makes it patently and explicitly clear that it is referring to a military scenario, by reference to "a well regulated militia" and "the security of a free state"

 

correct. I'm glad you realize membership in a militia is entirely irrelevant.

It is explicitly stated in the 2nd A

It's in plain English right in the amendment from inception and has not changed since.