J. Aldridge: Well you said Chapter 1 was “Of the Absolute Rights of Individuals”), and his original book I have it is “Rights of Persons.”In the first chapter he says “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.”He wasn’t talking about any individual right to have a gun for self-preservation, but for the people to arm themselves as the military power for their self-preservation and defense. That is exactly how parliament viewed the law.

Blackstone divides all the laws of England into 4 categories: rights of persons, rights of things, private wrongs, and public wrongs. Each has its own book in Commentaries, and each book is divided into chapters. As I said back on the 27th, the right of having arms is covered in Chapter 1 (“Of the Absolute Rights of Individuals”) of Book 1 (“The Rights of Persons”). Incidentally, by “persons,” Blackstone explains that he means not only natural persons (individuals) but artificial persons (such as corporations). Many of the chapters of Book 1 aster the first deal with artificial persons.

As far as your bare assertion that Blackstone understanding the right of having arms as part of the military power (which Blackstone covers in Chapter 13, without mention of the right of having arms), you’ll have to forgive me if I take it as just that: a bare assertion.

PubliusFL: Sorry, the chapter divisions are Blackstone’s own. In chapter 1, he states:

Well you said Chapter 1 was “Of the Absolute Rights of Individuals”), and his original book I have it is “Rights of Persons.”

In the first chapter he says “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.”

He wasn’t talking about any individual right to have a gun for self-preservation, but for the people to arm themselves as the military power for their self-preservation and defense. That is exactly how parliament viewed the law.

J. Aldridge: Depends on who the editor of the book is and how they chapter his writings.

Sorry, the chapter divisions are Blackstone’s own. In chapter 1, he states:

The rights of persons considered in their natural capacities are also of two sorts, absolute, and relative. Absolute, which are such as appertain and belong to particular men, merely as individuals or single persons : relative, which are incident to them as members of fociety, and standing in various relations to each other. The first, that is, absolute rights, will be the subject of the present chapter.

He later states that he will discuss the “constitution, powers, and privileges of parliament . . . in the ensuing chapter.” Sure enough, chapter 2 is “Of the Parliament.”

PubliusFL: He discussed the militia in Chapter 13 (“Of the Military and Maritime States”), which is a long way from Chapter 1 (“Of the Absolute Rights of Individuals”).

Depends on who the editor of the book is and how they chapter his writings.

J. Aldridge: I thought he did under rights of persons (I am going by memory). Arms was thought as a “the natural right of resistance and self-preservation” in the hands of trained militias of the people against a standing army of the king.

He discussed the militia in Chapter 13 (“Of the Military and Maritime States”), which is a long way from Chapter 1 (“Of the Absolute Rights of Individuals”). The right of having arms is discussed only in the latter, not in the former. If it were so intimately connected with militia service, one would expect the reverse, or at least a mention where the militia is discussed.

PubliusFL: Nope, sorry. He never mentions the militia or military in that chapter. He says that the right to have arms is auxiliary to “the natural right of resistance and self-preservation.”

I thought he did under rights of persons (I am going by memory). Arms was thought as a “the natural right of resistance and self-preservation” in the hands of trained militias of the people against a standing army of the king.

PubliusFL: Nothing about military service in his discussion of the right.

I think he discussed it when talking about the militia. In any event, it was well understood when talking about arms of the people for their defense they were talking about the militia. That is all it meant in the House of Lords.

J. Aldridge:
Not familiar with any statement from him that said that about keeping guns at home, but did say it was an absolute rightin protection of life, liberty, or property.

Correct, and an individual right of Englishmen. Nothing about military service in his discussion of the right.

PubliusFL: Then why did he discuss the right to have arms as an “absolute right of individuals”?

Not familiar with any statement from him that said that about keeping guns at home, but did say it was an absolute right in protection of life, liberty, or property.

J. Aldridge:
I submit he would had endorsed and confirmed what I say as true.

Then why did he discuss the right to have arms as an “absolute right of individuals”?

PubliusFL: That would have been a surprise to Blackstone, who discussed the right to have arms in Chapter 1

I submit he would had endorsed and confirmed what I say as true.

J. Aldridge: All true for sure. However, implying this was an “individual right” is just as false under the English Bill of Rights as the American. Both address the military power of the people and not their private affairs of keeping and using a gun. It is true it was attempted to disarm the militia through the false pretense of game laws, but that doesn’t change the fact we are talking about the right of the people to provide for their own military protection.

That would have been a surprise to Blackstone, who discussed the right to have arms in Chapter 1 (“Of the Absolute Rights of Individuals”) of Book 1 (“Of the Rights of Persons”) of his Commentaries on the Laws of England.

PubliusFL: What they fail to acknowledge is that every provision of the English Bill of Rights was subject to the same qualification, because the English Bill of Rights only restrained the power of the king.

All true for sure. However, implying this was an “individual right” is just as false under the English Bill of Rights as the American. Both address the military power of the people and not their private affairs of keeping and using a gun. It is true it was attempted to disarm the militia through the false pretense of game laws, but that doesn’t change the fact we are talking about the right of the people to provide for their own military protection.

J. Aldridge: You mean it had a great disinformation effect. Example: Scalia claiming “Protestants would never be disarmed” under the provision of the English Bill of Rights that read, “That the subjects which are Protestants may have arms for their defense, suitable to their conditions, and as allowed by law.”

Gun control supporters like to point out the highlighted language, saying “see, the right was never considered to be absolute.” By this, they mean to imply that the right should be considered weaker than other constitutionally guaranteed rights, more subject to “reasonable” regulation. What they fail to acknowledge is that every provision of the English Bill of Rights was subject to the same qualification, because the English Bill of Rights only restrained the power of the king. Parliament could do whatever it wanted, the Bill of Rights notwithstanding, so all English rights were “as allowed by law.” The idea of a bill of rights that limited legislative as well as executive power was an American innovation.

Scalia really screwed up when he claimed in Heller that it “was clearly an individual right, having nothing whatever to do with service in a militia.”

Well, yeah, but the alternative was recognizing that it was a right to keep and bear military arms, and that was a bridge too far for Scalia.

Clayton E. Cramer: If “as allowed by law” allows disarmament of even Protestant subjects, then “as allowed by law” directly contradicts the first part of that guarantee.

Doesn’t sound like any “guarantee” to me.

Scalia really screwed up when he claimed in Heller that it “was clearly an individual right, having nothing whatever to do with service in a militia.” Parliament debates used the words “bear arms” in “military employment” when discussing whether to arm the Protestants. Papists of course were allowed to maintain armed militias.

Clayton E. Cramer: Except that this is not what happened. Congress disbanded state militias precisely because those state militias were disarming freedmen.

No it wasn’t because blacks were being disarmed. It was because of Johnson’s intern govts were allowing only all white militias and it was feared by Republicans they would oppress blacks. When blacks finally formed and trained under their own black militias in S.C. Republicans proclaimed their right to bear arms restored.

Who would that be, then?

Inhabitants of fundraising lists, for starters.

J. Aldridge: You mean it had a great disinformation effect.

Well, that could be another point. I was actually referring to the effect of the case, not the decision. When the Brady folks’ idea of “reasonable gun control” was so clearly illustrated a lot of my leaning-toward-reasonable gun-control friends reacted with, “Say what?” and changed attitudes.

Clayton E. Cramer: It becomes, “That the subjects which are Protestants may have arms for their defense, suitable to their conditions, except if the king decides to disarm them.”

Actually the real limitation is in the “suitable to their conditions” clause. Look at today’s situation in the eight states with discretionary licensing. It turns out that the politically connected (like Chicago’s aldermen) “need” gun licenses, but the peasants don’t. That mirrors Jolly Old England, where weapons ownership was carefully scheduled according to social status.

CJColucci: I’d be astonished if any Justice read 30-plus amicus briefs, and I’m not sure I’d want them to. Probably, Justices will decide which way they want to come out and have their clerks rummage through the amicus submissions for ammunition.

Everyone knows that this is what happens on controversial cases, and not just when you reach the top of the food chain. I wish it was different, but it isn’t.

Still, Dave has an interesting point: there are members of the Court who clearly claim to believe that if a right is enjoyed in the vast majority of the states (as with the Loving case, or the Lawrence case), then the living, breathing, constantly mutating Constitution theory turns that into a right. I find this to be a completely ridiculous claim, because this same crowd didn’t accept that argument in Roe v. Wade, where the vast majority of states severely restricted abortion. It is useful to confound their intellectual dishonesty, nonetheless.

J. Aldridge:
Exactly. Like when former rebel states were allowed to re-arm and organize the militia congress declared the people’s right to bear arms had been restored.

Except that this is not what happened. Congress disbanded state militias precisely because those state militias were disarming freedmen. And they were using the exact same excuse that Chicago uses: “those people” were too violent to be trusted with arms–unlike the Klan, or Chicago police officers who like to beat up barmaids.

ArthurKirkland: More than 30 briefs?Most of them, I suspect, were aimed at audiences other than Justices of the Supreme Court.

Who would that be, then? I know for a fact that the briefs submitted by Academics for the Second Amendment for both Heller and McDonald were aimed quite specifically at the Justices of the Supreme Court.

J. Aldridge:
You mean it had a great disinformation effect. Example: Scalia claiming“Protestants would never be disarmed” under the provision of the English Bill of Rights that read, “That the subjects which are Protestants may have arms for their defense, suitable to their conditions, and as allowed by law.”

If “as allowed by law” allows disarmament of even Protestant subjects, then “as allowed by law” directly contradicts the first part of that guarantee. It becomes, “That the subjects which are Protestants may have arms for their defense, suitable to their conditions, except if the king decides to disarm them.” I would suggest that “as allowed by law” must have had a somewhat narrower meaning than you propose, or the whole clause means nothing at all.

large majorities of Congress signed briefs reminding the Court of a century-and-a-half of Congressional actions taken to protect the individual Second Amendment right from federal, state, and local infringement.

When they weren’t busy with Congressional actions taken to attack that self-same right.

LarryA: IMHO one of the greatest effects of Heller was educational.

You mean it had a great disinformation effect. Example: Scalia claiming “Protestants would never be disarmed” under the provision of the English Bill of Rights that read, “That the subjects which are Protestants may have arms for their defense, suitable to their conditions, and as allowed by law.”

Carl from Chicago: One question I have (for anyone) is whether the “reasonable regulation” standard of review pushed by Brady is standard in any way.

Given that the 2008 Brady scorecard (no longer on the Brady site) found that even California, the highest ranking state, rejected 1/5 of the Brady agenda, and that half the states had enacted a tenth or less of the laws they promote, I’d say not.

IMHO one of the greatest effects of Heller was educational. For a couple of decades or so the mainstream media has been asking whether people want reasonable gun control. Then, in Heller, we saw the D.C. version of gun control: no handguns, long list of banned long guns, byzantine registration process for the long guns that were acceptable, strict requirements to store firearms, and a prohibition of getting a firearm out of the safe as someone was breaking down the front door. And the Brady folks pointed and said, “See? Reasonable gun control!”

That changed a lot of minds about the anti-gun side of the issue.

CJColucci: I’d be astonished if any Justice read 30-plus amicus briefs, and I’m not sure I’d want them to. Probably, Justices will decide which way they want to come out and have their clerks rummage through the amicus submissions for ammunition.

Or maybe they’ll decide the same way Law Professors grade papers – throw the whole stack down a flight of stairs, and whichever one[s] reach the bottom must be right.

CJColucci: I’d be astonished if any Justice read 30-plus amicus briefs, and I’m not sure I’d want them to. Probably, Justices will decide which way they want to come out and have their clerks rummage through the amicus submissions for ammunition.

that’s an interesting question…I’d initially say that I’d want them to read everything, with the presumption being that more information leads to a better decision and a more rational argument. Rather than starting with the answer and then finding the support, you start with the arguments and come up with an answer. That said, seeing how political the whole process is makes me wonder whether that’s truly the case.

“Accordingly, it seems to me appropriate that in Heller and McDonald, large majorities of Congress signed briefs reminding the Court of a century-and-a-half of Congressional actions taken to protect the individual Second Amendment right from federal, state, and local infringement.”

Exactly. Like when former rebel states were allowed to re-arm and organize the militia congress declared the people’s right to bear arms had been restored.