Thursday, November 22, 2007

Part 2 - SCOTUS and The 2nd Amendment ruling (DC v Heller Preview)

Part II focuses on the original history of the 2nd Amendment. Part 1 is here.
Part 3 will be court rulings. Part 4 will be on the Miller case and its legacy. Part 5 will be the DC case.

Before I continue on, I want to link to Guncite. It is the best Second Amendment resource site on the internet. It covers just about every single arguement, exsposes bogus quotes (both pro and anti), and most importantly, sources everything, so I can look at their sources after reading it to find more information. The Second Amendment Law Library also has a home there now. It's not the same as it once was in the late 90's, but still a good spot. It is mostly pro in its articles, but also has some anti articles there as well. Both are good reads to get an understand of the issue.

The Second Amendment of the United States Constitution was born 9-25-1789.

From the National Archives.
The Preamble to The Bill of Rights

Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution

(snip)

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.


First off, there's nothing about "hunting" listed here. The Second Amendment is not about hunting. That is a major reason why my guard goes up when pols talk about the 2nd Amendment and then about hunting. John Kerry kept doing this, even though he voted to ban all rifle ammunition. I support hunting, but there is no federal constitutional right to hunt. Hunting is a state level issue. There's nothing about "sporting purposes" either, or target shooting, etc. Any politician that talks about those issues in regards to the 2nd Amendment need to be watched. They could be ignorant on the issue and are willing to learn about it, or they could be outright hostile like John Kerry was.

Secondly, we know what the last part means. Right of the people. That's cut and dry. However, many leftists, particulary among the chattering classes (media) like to say that the 2nd Amendment gives the right to to keep and bear arms only for the National Guard. Two problems with that.

1. What's the "well regulated" Militia?
2. What's the National Guard?

Back in 1789, the militia was all white men. It still is under US CODE, but now expanded to all American men regardless of race ages 17 to 45. It's most of us reading this.

US Code says
(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.


Now the militia predates the National Guard, which is PART of the militia. This bill was passed in 1916. The National Guard was formed in 1903 - 124 years after the Second Amendment was formed. That's not to mention that today's Guard are soldiers that serve the country more often than the state (Between the Iraq War and 1991 Desert Storm/Shield).

In order to find out the original meaning and intent of the 2nd Amendment, we have to go back to early American law, which is largely based on English common law. Common law is "judge made" law. That's not meant as a pejoritive or in a negative sense. Back then, most of the law wasn't in statutes or written down. It was based on customs of the period. The American colonists brought the law they knew with them, mostly English.

Most of the statutes today are codified versions of common law. That is particulary true in criminal law (all statutes). One Example is the differences in homicide between murder and manslaughter. Contracts are also largely governed by statutes (UCC) but based on common law. Property law is largely still governed by common law unless it is in contracts. Torts are largely still governed by common law today.

How common law is supposed to work is that custom was usually the law. Judges make rulings based on situations, and later judges look at previous judges in how they ruled on the same situation, and that is passed down as precident. Precident is an influence on the courts to this day. What makes the 2nd Amendment case interesting is that there is little to no precident in the Supreme Court, and that last case was bad precident (as one side did not show up).

The first major statutory influence was the Magna Carta in 1215. The Magna Carta placed some limits on the government at that time, most notably habeas corpus. It was the start of "due process" later in the 5th and 14th Amendments.

The Right to Keep and Bear Arms goes back further than even the 2nd Amendment. The English Bill of Rights in 1689 allowed Protestants to have arms for "defence" (British spelling), as allowed by law. That wouldn't help me very much back then, but it is a starting point of influences. It is also worth noting that one of the Penal Codes enacted by Britain against Ireland barred Catholics from owning firearms. Early gun control. They didn't trust my ancestors with guns. After "To Hell or Connaght" Cromwell, I wonder why? Some in South Boston are still mad about Cromwell today - and I thought I had Irish grudges.

The most influential English common law thinker in America, was William Blackstone. Most know Blackstone's quote of "It is better that ten guilty persons escape than one innocent suffer."
From Blackstone's Commentaries on the Laws of England


THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and 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


Sounds a lot like the 1765-1769 precursor of 2nd Amendment to me. Blackstone isn't law, although he is a major influencer of law.

As anyone from Civics 101 remembers, the United States is a system of checks and balances. That's what the Bill of Rights are about. That's what our system of Federalism (I'd argue anti-federalism is what much of federalism is called today) and our system of the three branches of government are. The 2nd Amendment is the last check and balance, mostly of a deterrance, against an out of control government (foreign or domestic). The good news is that it hasn't had to really be invoked yet.

James Madison wrote the 2nd Amendment. Two things going on influenced this heavily. One was the American Independence from the tyranny of King George and Lord North. The other was the Whiskey Rebellion and the failure of the Articles of Confederation. Guncite has a bunch of quotes from founding fathers of this country on the militia and firearms, including Thomas Jefferson, who I wish could be cloned for 2008. Jefferson and the anti-federalists were more suspicious of government power in general than the federalists. However, I'm concentrating on the Federalist Papers. Federalist 46 in particular. This is one issue the federalists and anti-federalists were in agreement or very near agreement. Federalist 46 was about state vs federal power.

...... But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other. The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter.

The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.

Extravagant as the supposition is, let it however be made. 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.

Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it. The argument under the present head may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people. On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.


That's from Federalist 46, written by the same author of the 2nd Amendment, James Madison. It was just treated as a given that the populace was armed. I'll take this one step further. In 1790, the US Census gave a population of 3,929,214. That is three years after the ratification of the Constitution. A 500,000 strong armed militia mentioned by Madison is 1/8 of the total population of the US at the time. 1,615,125 of the total population were white males, which at the time, were the only members of the militia. 1/3 of the white male population at the time was the militia. Keep in mind that families were larger back then than they are today as well. The median age of the population in 1800 was 16 years old. Math isn't my strongest subject, but that explains who the well regulated militia is - us.

Don't take my word on the census numbers. It's all in the census archives

The original intent of the 2nd Amendment is clear. Between the common law traditions and the Federalist Papers, as well as historical context at the times, it is clear. Do not disarm the militia. Do not disarm the people of this country. The Right of the people to keep and bear arms shall not be infringed.

Part 3 is next. The Courts and legal history.

3 comments:

Laci the Chinese Crested said...

Well regulated and militia defined from the US Constitution:

Article I, Section 8:

The Congress shall have power...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;

Yeah, the Congress has power to ARM the militia.

Patrick Henry Said:

Argument IV: against the standing army Constitution: Article I Section 8
7.1 A standing army we shall have, also, to execute the execrable commands of tyranny; and how are you to punish them? Will you order them to be punished? Who shall obey these orders? Will your mace-bearer be a match for a disciplined regiment? In what situation are we to be? The clause before you gives a power of direct taxation, unbounded and unlimited, exclusive power of legislation, in all cases whatsoever, for ten miles square, and over all places purchased for the erection of forts, magazines, arsenals, dockyards, &c. What resistance could be made? The attempt would be madness.

8.1 You will find all the strength of this country in the hands of your enemies; their garrisons will naturally be the strongest places in the country. Your militia is given up to Congress, also, in another part of this plan: they will therefore act as they think proper: all power will be in their own possession. You cannot force them to receive their punishment: of what service would militia be to you, when, most probably, you will not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish them.

9.1 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."

9.2 By this, sir, you see that their control over our last and best defence 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. Our situation will be deplorable indeed: nor can we ever expect to get this government amended, since I have already shown that a very small minority may prevent it, and that small minority interested in the continuance of the oppression.


Patrick Henry, Against the Federal Constitution June 5, 1788

Guess what, Your second Amendment right is to be protected against a standing army, not to own firearms for your own personal purposes.

And, unless you are seriously proposing the abolition of the military in favour of a Swiss Style military, You don't have any rights.

I suggest you actually read the full quotes of the founding fathers in Context.

Cause, we've got tyranny. Tt's called a standing army.

And as predicted, it's running amok in the Middle East.

Republican Michigander said...

""Yeah, the Congress has power to ARM the militia.""

Arm - not DISarm.

"""Guess what, Your second Amendment right is to be protected against a standing army, not to own firearms for your own personal purposes."""

Protected against government. That's the purpose of the 2nd Amendment. Glad to see that you're finally starting to get it and agree with me. Patrick Henry made a strong arguement, countered with Federalist 46.

""And, unless you are seriously proposing the abolition of the military in favour of a Swiss Style military, You don't have any rights.""

And that contradicts Madison in Federalist 46. Remember the population of this country and what constituted the militia then - which is the same definition of the militia today under all definitions of the militia today - US Code and originalist.

""I suggest you actually read the full quotes of the founding fathers in Context."'

Many times over I have. I aced the Federalist Papers class as an undergrad, and that was without grade inflation.

""Cause, we've got tyranny. Tt's called a standing army.

And as predicted, it's running amok in the Middle East.""

A good case actually can be made that the RBKA is legit because of the troubles in Iraq.

Neither Madison, Henry, or even Hamilton supported DISarming the people.

Laci the Chinese Crested said...

Gee, I have a brain the size of a walnut, but I can see that the Patrick Henry quote totally contradicts what you say.

The fear was that the US legislature could indeed disarm the militia.

Actually, it sounds as if you need to learn how to read, or at least not let people spoon feed things to you.

Additionally, please show me where self-defence is mentioned in the Second Amendment.

Not mentioned=not covered.

You can't legally imply something which is not mentioned.

Additionally, if it doesn't tax your brain too much, explain how a citizens' militia can fight the United States Government in light of Article III, Section iii of the Constitution.