D.C. handgun ban ruling

[tvp45]

Can you (or anyone) elaborate on this? I'm not sure I understand the distinction being made.

 

They were barred from bearing arms, but could own and use guns? What's the difference between arms and guns? Or, is it something else subtle I'm not grasping?

 

If you've ever seen the pictures of the 101st Airborne standing outside Central High School in Little Rock, Arkansas in 1957, that is bearing arms as understood in 1789 Virginia. It requires a long explanation of the form of government, and how militia fit into that, to fully explain. If you're interested, I'll post that later. The differences are quite subtle in today's world and stem in part from the English Civil War (the one with Charles I and Cromwell, etc). It was literally a mark of free citizenship; all white male adults, save magistrates and Episcopalian ministers, were in the militia, though disabled veterans, idiots, etc were "excused". It helps a bit to know that militia rolls, county tax lists, and voting lists were the same.

[iNow]

If you've ever seen the pictures of the 101st Airborne standing outside Central High School in Little Rock, Arkansas in 1957, that is bearing arms as understood in 1789 Virginia. It requires a long explanation of the form of government, and how militia fit into that, to fully explain. If you're interested, I'll post that later.

 

This one?

 

 

 

I'm still not following the logic, so an additional post from you on this topic would be welcomed. Guns are a subset of arms, so how would it be possible that they were barred from arms, but allowed to have guns?

[tvp45]

That's not the picture I had in mind. Here's a link to a somewhat bad copy

http://www.bbc.co.uk/.../standard/schools/?source=2

 

The airborne troops in this picture are bearing arms. This collective aggressive posture is what, for example, free Blacks could not do. This is the county right - to use organized armed men to enforce peace and safety - that was possessed and prized by the 1789 citizens on the Virginia frontier. For the individual, this was a duty, similar to jury duty in that it was also a sign of a free man, but nonetheless a duty.

 

It should be noted that, in the pursuit of short answers, I am glossing over about 5% of the truth since the practice of having militia units led to all kinds of exceptions, special cases, and simple ignorance of the law.

[ParanoiA]

So, can we sum that up by saying that "bearing arms" used to mean flexing in a soldier's role? (something's wrong with the link, I see no picture). So that would explain why women could own and use guns, but not "bear arms", since they could not really participate in this kind of duty?

[tvp45]

Oops. I never said I could type.

Try again

http://www.bbc.co.uk/scotland/education/hist/freeatlast/timeline/standard/schools/?source=2

Not so much flexing in a soldier's role as in a citizen's role. That's the point in understanding the wording - the militia and the citizens were one and the same (sorry, but women weren't real citizens yet).

[iNow]

So, basically you are equating "bear arms" as "congregate in groups with weapons?" Sort of like loitering?

[ParanoiA]

Oops. I never said I could type.

Try again

http://www.bbc.co.uk/scotland/education/hist/freeatlast/timeline/standard/schools/?source=2

Not so much flexing in a soldier's role as in a citizen's role. That's the point in understanding the wording - the militia and the citizens were one and the same (sorry, but women weren't real citizens yet).

 

Ok, ok, I get that now. I'm thick sometimes. Interesting stuff. In that context, it does appear to lend stock to the notion that it's not an individual right. However, one then has to wonder how the civilian militia was therefore thought to have armed itself without the individual right to arms. Or was that supposed to be government provided?

[doG]

Or was that supposed to be government provided?

 

Under Virginia Law, the context of this side discussion, it explicitly said that each free man was to be provided with a firelock and fixed bayonet, powder and balls. They were also required to keep a pound of powder and 4 pounds of balls in their dwelling. This militia was a descendant of the Crown's Militia responsible for protecting the colony prior to the Declaration of Independence.

[tvp45]

Ok, ok, I get that now. I'm thick sometimes. Interesting stuff. In that context, it does appear to lend stock to the notion that it's not an individual right. However, one then has to wonder how the civilian militia was therefore thought to have armed itself without the individual right to arms. Or was that supposed to be government provided?

 

In practice, it was seldom armed very well. You may know that, at the onset of the American Civil War, many VA militia units could not be mustered into service for lack of any type of standardized arms, even Brown Besses. There is a diary entry which I will try to find from perhaps the 1820s in which a young man describes how most of the men are armed only with cornstalks at the yearly regimental muster. Apart from the unpleasantness with the British and the Madison housewarming, the militia was not much used save for local alarms. Their principal duties were road repairs.

[CDarwin]

I know Tennessee militias were actively engaged in Indian wars. Andrew Jackson actually led the state militia in a full scale (relative to Indian wars) invasion of Chickasaw lands. So, some were better armed than others.

[john5746]

http://www.guncite.com/journals/vandhist.html

 

An excerpt:

 

VI. Conclusion

English history made two things clear to the American revolutionaries: force of arms was the only effective check on government, and standing armies threatened liberty. Recognition of these premises meant that the force of arms necessary to check government had to be placed in the hands of citizens. The English theorists Blackstone and Harrington advocated these tenants. Because the public purpose of the right to keep arms was to check government, the right necessarily belonged to the individual and, as a matter of theory, was thought to be absolute in that it could not be abrogated by the prevailing rulers.

 

These views were adopted by the framers, both Federalists and Antifederalists. Neither group trusted government. Both believed the greatest danger to the new republic was tyrannical government and that the ultimate check on tyranny was an armed population. It is beyond dispute that the second amendment right was to serve the same public purpose as advocated by the English theorists. The check on all government, not simply the federal government, was the armed population, the militia. Government would not be accorded the power to create a select militia since such a body would become the government's instrument. The whole of the population would comprise the militia. As the constitutional debates prove, the framers recognized that the common public purpose of preserving freedom would be served by protecting each individual's right to arms, thus empowering the people to resist tyranny and preserve the republic. The intent was not to create a right for other (p.1039)governments, the individual states; it was to preserve the people's right to a free state, just as it says.

 

Well, I never really read into this amendment much - not sure that this is completely correct, but it does appear that the amendment was intended to give private citizens the power to fight a potential tyrannical standing army. So, I should be allowed to purchase military equipment, like a tank. I mean a shotgun isn't going to do it.

 

Maybe the problem is we don't allow these rights to be fully realized, so that people can learn that it is no longer needed and in fact dangerous.

[Mr Skeptic]

Well, an armed population does not need the most powerful weapons to defeat their government. The population outnumbers the government by far. Examples can be seen from peasant revolts everywhere.

 

However, ensuring that the army remains loyal to the people rather than the government is a better idea.

[tvp45]

There were, during the Constitutional Convention, at least two attempts (the stronger, I think, by Pennsylvania) to have the second amendment explicitly refer to individual rights to possess and use guns for self-defense and hunting. Many gun owners, me included, have wished those attempts had succeeded. This reinterpretation of the Constitution by a surprisingly activist Supreme Court achieves much the same result. It will have an enormous impact in those cities where gun laws are particularly strict (e.g., New York) and in those states where gun rights organizations are pushing for open carry (for those who don't know, this amounts to carrying a visible, holstered handgun, much as police do. It will also fuel the debate about allowing firearms into the National Parks. It will be interesting to watch follow-up cases.

[ParanoiA]

This reinterpretation of the Constitution by a surprisingly activist Supreme Court achieves much the same result.

 

Really? You think this was an 'activist' decision? Seriously, I can see how you may disagree with the interpretation, but it seems particularly clear after doG's post covering their opinions on the matter that Scalia and company were not advocating interpretation based on the result they'd like to see, but rather based on what they believe the intent of the constitution was.

 

So are you saying they're lying? That really, they just made that shit up and they just want to see guns unrestricted?

 

At the same time the majority ignores a more important question: Given the purposes for which the Framers enacted the Second Amendment' date=' how should it be applied to modern-day circumstances that they could not have anticipated? [/quote']

 

Now that is an activist judge. That is an activist decision. That has nothing to do with interpreting the constitution accurately - that has to do with interpreting the constitution flexibly to suit your personal opinion. That is not the court's job.

[doG]

There were, during the Constitutional Convention, at least two attempts (the stronger, I think, by Pennsylvania) to have the second amendment explicitly refer to individual rights to possess and use guns for self-defense and hunting.

 

You need to revisit your history. The Bill of Rights was not a topic at the Constitutional Convention which convened in Philadelphia from May 25 to September 17, 1787. The proposed Bill of Rights was presented to Congress on June 8, 1789, two years later.

 

This reinterpretation of the Constitution by a surprisingly activist Supreme Court achieves much the same result.

 

Reinterpretation? Can you provide any evidence that the court has ever ruled that it meant anything else? The history behind the Bill of Rights is in post 7 above. Can you point out any errors of fact in that history?

 

The 2nd Amendment means the same thing today as it did when it was written. It is not the court's job to change the meaning of law over time, only to decide what it means. If the meaning of law becomes outdated then it is the job of Congress to change it, not the court's.

[tvp45]

You need to revisit your history. The Bill of Rights was not a topic at the Constitutional Convention which convened in Philadelphia from May 25 to September 17, 1787. The proposed Bill of Rights was presented to Congress on June 8, 1789, two years later.

 

 

 

I apologize for sloppy language. A (not "The") bill of rights was argued at the Constitutional Convention. The right to own guns was part of that argument. A bill of rights was not included, largely due to the opposition from Mr. Madison. Once the Constitution had been ratified, Mr. Madison (as seen in a letter he wrote the Reverend George Eve in Culpeper County) then supported a bill of rights in the form of amendments. It might be argued that Mr. Madison was influenced by political sentiment in Virginia, but he claimed the flip-flopping was so that future generations would not see those rights as being the only rights guranteed to citizens. I have no way of knowing if the original right would have been the second one enumerated; thank you for correcting me.

 

As for SCOTUS precedent, I am unaware of any previous decision that specifically addressed the question of individual vs collective rights. To the best of my knowledge, Miller was the next previous decision and that clearly does not address the question, except in the eyes of very passionate gun-rights advocates. If there are decisions about which I am ignorant, can you please tell me?

 

As to why the history lesson included in the decision might be incorrect, I can only assume that the Justices, like most of us, are woefully ignorant of history and, in that ignorance, tend to insert personal prejudices and agenda. BTW, before someone suspects me of such an agenda, I am a strong advocate of gun ownership. It's just that I don't feel I derive my rights from the Constitution; the Constitution spells out those natural rights which i have agreed to allow the government to regulate. I am much more comfortable with Mr. Madison's theories than I am with Mr. Jefferson's.

[doG]

A (not "The") bill of rights was argued at the Constitutional Convention. The right to own guns was part of that argument. A bill of rights was not included, largely due to the opposition from Mr. Madison.

 

I find no record of such debate in Farrand's Records. It is well known that a number of delegates left the convention in protest because it did not contain a Bill of Rights.

 

As for SCOTUS precedent, I am unaware of any previous decision that specifically addressed the question of individual vs collective rights. To the best of my knowledge, Miller was the next previous decision and that clearly does not address the question, except in the eyes of very passionate gun-rights advocates. If there are decisions about which I am ignorant, can you please tell me?

 

Me tell you? It was you that made the statement, "This reinterpretation of the Constitution by a surprisingly activist Supreme Court achieves much the same result." I do not see the court's opinion as a reinterpretation and asked for you to support your statement.

 

As to why the history lesson included in the decision might be incorrect, I can only assume that the Justices, like most of us, are woefully ignorant of history and, in that ignorance, tend to insert personal prejudices and agenda. BTW, before someone suspects me of such an agenda, I am a strong advocate of gun ownership. It's just that I don't feel I derive my rights from the Constitution; the Constitution spells out those natural rights which i have agreed to allow the government to regulate. I am much more comfortable with Mr. Madison's theories than I am with Mr. Jefferson's.

 

All of the rights of the people are derived from the Constitution, as are the rights of the States and the powers of Government.

[tvp45]

I find no record of such debate in Farrand's Records. It is well known that a number of delegates left the convention in protest because it did not contain a Bill of Rights.

 

 

 

Me tell you? It was you that made the statement, "This reinterpretation of the Constitution by a surprisingly activist Supreme Court achieves much the same result." I do not see the court's opinion as a reinterpretation and asked for you to support your statement.

 

 

 

All of the rights of the people are derived from the Constitution, as are the rights of the States and the powers of Government.

 

Are you saying that you find no record of a debate on a bill of rights or that you find no records of the specifics of such a debate?

 

The question of rights is central, perhaps, to our differences and is unlikely to be settled. I date my political rights from 1215 and my natural rights from eternity. If you date yours from 1791, we are "at sixes and sevens" and unlikely to reach similar conclusions. I respect your right to that view, but will oppose that view at the ballot box (well, actually, touch screen:eyebrow:).

 

It was not my intent to debate the merits of individual versus collective rights, merely to answer the question about the peculiar wording of the second amendment. Thanks for the mental exercise. I appreciate your not using the Pennsylvania Minority Report; that would have made my explanation particularly convoluted.

[doG]

Are you saying that you find no record of a debate on a bill of rights or that you find no records of the specifics of such a debate?

 

Specific details. People's rights came up and it is the reason several delegates left in protest but I didn't find any particular debate on a right for the people to keep and bear arms.

[tvp45]

Specific details. People's rights came up and it is the reason several delegates left in protest but I didn't find any particular debate on a right for the people to keep and bear arms.

 

Farrand only mentions that there was a discussion on September 12, without giving details. Mr. Madison's notes flesh out the topic. There is, in the National Archives, the text of the proposed rights as presented by George Mason. The right to bear arms under that proposal is number 17 (not 2) and the language is fairly similar to the actual 2nd amendment. In support of your position, it should be noted that many Mason supporters have understood his language (and his position) to mean individual rights. If so, this would imply the actual 2nd amendment is also about individual rights. I still find the balance of proof shifted in favor of collective duty, but I acknowledge the points raised by those supporters.

 

You may find the motion to consider a bill of rights here:

http://www.yale.edu/lawweb/avalon/debates/912.htm

I do not have a link to the National Archive text. I would be grateful to know if you find one.

 

I cannot recall at this moment a source for what I remember as a stronger Pennsylvania argument and I have not examined Gerry's positions.

[doG]

Mason's proposed rights were post Constitutional Convention, during the period of ratification. Mason refused to sign the Constitution at the end of the Convention because he had called for a committee to draft a Bill of Rights at the Convention and it was voted down 10-0 with 1 absent. This record is in Volume 2 of Farrand's Records on page 588.

[Pangloss]

CBS News ran a great piece this morning focusing on Cato's Robert Levy and his efforts to bring this case to fruition. They have it on their web site in both text and video form. (It's about a 7-minute video piece.)

 

http://www.cbsnews.com/stories/2008/06/29/sunday/main4217235.shtml

 

It ended with a great quote. The reporter asked Levy if it bothers him that people will die as a result of this decision.

 

"Well of course, it matters," he said. "And I think it's indisputably true that there will be people who die because of this ruling. There will be other people who would have died were it not for this ruling, and so one has to take into account not just the cost but the benefits."

 

A very realistic point of view.

[tvp45]

Mason's proposed rights were post Constitutional Convention, during the period of ratification. Mason refused to sign the Constitution at the end of the Convention because he had called for a committee to draft a Bill of Rights at the Convention and it was voted down 10-0 with 1 absent. This record is in Volume 2 of Farrand's Records on page 588.

 

Yes, I think you are correct and that I have mistaken the draft document at the National Archives. I have found a note that Mason offered that day to immediately prepare such a bill, but apparently made no draft at that time. I have no access to Mason's papers, I think. An interesting point. I don't think it shifts the evidential balance, but it certainly suggests a deeper look at Mason. Perhaps his writings can shed more light on the Quaker dilemma. Cheers.

[waitforufo]

The problem most people have with the second amendment has to do with how to define the term "well-regulated."

 

A well-regulated clock keeps time accurately. Members of a well-regulated militia can hit their targets when they shoot. America has always highly valued marksmanship. In order to keep yourself well-regulated in the use of arms you have to practice. Owning your own weapons facilitates you ability to practice. Also, when the bill of rights was written, firearms were all a bit unique with their own idiosyncrasies. Maintaining familiarity with your own weapon was important.

[iNow]

I think the "problem most people have with the second amendment" has more to do with how difficult it's made drafting and implementing reasonable standards in communities facing serious challenges with gun violence.

 

I don't personally know the answer to how best solve that problem, but IMO it's more about stopping senseless death than about confusion on the term "well-regulated" militia.