Cardozo De Novo, the online companion to the Carodozo Law Review, has a symposium issue on firearms law and policy, with a focus on McDonald v. Chicago. Articles include The Second Amendment in the Living Constitution, by me; a critique of the Stevens dissent in Heller, by David Hardy; and a proposal by Michael Anthony Lawrence that all restrictions on liberty be judged according to a “reasonable time, place, and manner” standard.
In the comments section, feel free to discuss any of the articles.
LarryA says:
From Lawrence:
Gotta love the prostitution-like-medicine analogy.
Ya think? Nannies from coast to coast, screaming like little girls.
It’s ironic that a Fourteenth Amendment case with such implications for individual rights should arise in the midst of an administration seeking to eliminate so many freedoms.
January 20, 2010, 1:21 pmJ. Aldridge says:
Just reading what David Hardy wrote and would say he is walking on a real, real thin line. Arguing the English right to bear arms was an individual one not having anything to do with militia service is too easy to debunk.
Arguing it was a good thing Stevens dissent didn’t become law because it would had destroyed the NRA’s current PR line that has taught Americans they have a constituional right is lame.
I think Stevens has the high ground.
January 20, 2010, 4:51 pmJimmy says:
I agree with Aldridge here on both of his points. Hardy and Malcolm’s line on the English right have been debunked by Patrick Charles who also participated in this symposium. They try too hard to fit the “dots” of history on a predetermined line rather than connect the “dots” themselves and put them in context.
Second, I agree that just because a percentage of Americans believe something is a right, it doesn’t mean that it is. The majority of Americans believe a lot of things, but that doesn’t make it constitutional. Not to mention, I think that survey of 70% of Americans is a typical bad survey question. Did they differentiate between the different types of “individual” rights the Second Amendment scholars have argued over….probably not.
January 20, 2010, 5:49 pmJames N. Gibson says:
Jimmy and Aldridge need to get there own facts in order. If Hardy made any mistakes it was not also commenting on Steven’s concept that there are no individual rights in the first ten amendments, that they are all collective in nature. A proposition that throws a wrench into a number of held (as Jimmy would say) Beliefs. Like the idea of Habeus Corpus which in article One Section Nine is defined as a privilege not a right. It only becomes a right if the right to petition in the Bill of Rights is viewed as an individual right. But in the Steven’s disent its stated that a petition is without merit if it doesn’t come from a group or collective.
By the way, in 1812 the Congress passed a volunteer act to raise volunteer military units. Take a look at section 7 and answer the question, if firearm ownership was only for military service why were the men given a musket and bayonet on completion of said military service as a public testimonial of the Promptitude and zeal with which he volunteered.
January 20, 2010, 6:22 pmzippypinhead says:
Dave, your article was pretty gutsy. To my knowledge, no one else has tried to flip the mode of Constitutional interpretation that has been the primary vehicle used by opponents of individual Second Amendment rights into an argument supporting the holding in Heller. Very creative. If Paul Helmke or Josh Sugarmann read your article, their heads may explode… along with more than a few ACLU members, when they read your perhaps gratuitous (but not necessarily incorrect) analogy between the relative impacts of that organization and the NRA on fundamental Constitutional rights.
Your discussion of antebellum Second Amendment theory, leading up to the 14th Amendment in response to the Black Codes, was especially cogent and well-done (and is powerful originalist evidence as to the intent of that Amendment as the issue is raised in McDonald). But I have to confess I snorted when I got to the assertion regarding post-Reconstruction Jim Crow laws, that “[i]n our living Constitution, it is these racist laws which are the starting point for what Heller called “laws imposing conditions and qualifications on the commercial sale of arms.”” Wow… flatly arguing that “reasonable” gun control, as arguably endorsed in Justice Scalia’s Heller dicta, is the direct decendent of racist regulation? That allegation will be viewed as rather inflammatory in some quarters. Leaving aside the merits of your point, it’s probably good from a credibility standpoint that you didn’t make this the main focus of your article, under the catchy title “Modern Gun Control Regulation: The Bastard Step-Child Of Segregationist Jim Crow Laws.”
Overall, a valuable contribution to Second Amendment scholarship at a critical time, but occasionally the tone may have gotten a wee bit over-the-top, IMHO.
January 20, 2010, 6:40 pmJimmy says:
Mr. Gibson,
First, I never said the Second Amendment or the English “have arms” protection does not have an “individual” component. I think you are jumping to conclusions and assuming I agree with a pure “collective right” model. So you informing me to “get my facts straight” is an inaccurate statement. Certainly the Second Amendment and English “have arms” provision has an individual component, it just does not grant an unfettered right to own and use “arms” for personal self-defense and property as I am assuming you are defending.
Second, your link between Congress giving volunteers a musket upon service in the War of 1812 and your belief that the Second Amendment and the English “have arms” provision protecting individual arms ownership for defense of one’s person against individual violence is another example of placing a “dot” on a predetermined line. It was quite common for state militias to give its volunteers arms for their service. However, this does not prove anything regarding the protective scope of the Second Amendment or English Bill of Rights. Remember, in order for the Second Amendment to be incorporated through the Due Process Clause it has to be a right in the Anglo American tradition. So please…do not jump to conclusions on my post.
If you are interested on militias, laws, and history during the war of 1812, I reccommend you do some reading on the couple of states that refused to array their militias because they did not think there was an eminent threat from England. Remember that the English did not arrive with their troops until 1814. Until that point, whether the British would actually invade was argued among politicians. This may explain why Congress passed a law offering arms, and all the other equipment one was given during service. It was a means to attract individuals, especially poor ones, to service. I will dig further in the debates and see if I can find more for you…
January 20, 2010, 7:03 pmJ. Aldridge says:
Strictly none of them are individual “rights” because they never had anything to do with individuals within the several states who fell under the laws and constitution of the state. That is a huge fact most gun rights activists like to ignore. They might claim the 14A changed all that with citizens of a state vs. citizens of the United States but the 14A says nothing about it.
January 20, 2010, 7:10 pmJ. Aldridge says:
I don’t understand the link between “black codes” and the 2A. Black codes were adopted under President Johnson who was overseeing “former” states who had become under the control of the U.S. military and had no independent organized governments like they formerly had. Everyone blamed Johnson for the codes and not organized state governments.
National government made a big deal about a number of the federal amendments for the simple reason former rebel states were under the combined control of the federal government and not yet restored to independent states with their own laws and constitutions.
January 20, 2010, 7:22 pmJames N. Gibson says:
I’ll save you the trouble since you are already grasping at straws.
Such as stating that the 1812 volunteer act was passed during the war of 1812. It became a statue in February while the war wasn’t even declared until mid year. Further, given your comment “Remember that the English did not arrive with their troops until 1814. Until that point, whether the British would actually invade was argued among politicians.” why then did the US government pass an act to raise troops two years earlier. Also, please note that the 1812 bill had a sunset clause of two years, so it was expiring when the British arrived under your reading of history.
In that regard, the British actually invaded US territory in 1812 when they took the Fort at Detroit and launched joint Military and Indian attacks down into Indiana and Ohio. The British also took the New York State town of Ogdensburg in January 1813.
And I’ll add for your amusement the 1815 statute that actually constitutes the First Federal Military Draft. If men didn’t own arms except for this military service why then would the government need to state that rifles below a certain weight of shot would not be accepted into federal service (section 5). Shouldn’t all the rifles be of military caliber by default. Also, if men didn’t own arms except for militia duty how could the men provide there own arms to then be given money to cover wear and tear when in federal service.
January 20, 2010, 7:25 pmJames N. Gibson says:
You do understand that, by your own understanding, you have no right to freedom of speech unless you can prove you are the official spokesperson for a group or collective.
January 20, 2010, 7:30 pmJ. Aldridge says:
I have whatever right is extended to me by the state I am residing under. If people really had a federal 1A right why then do states continue existing with their own constitutions and bill of rights? If states really surrendered all the rights and protections of their own citizens I am sure they would had closed shop and done away their constitutions and courts all together since they would had no longer been needed. :-)
January 20, 2010, 8:01 pmJ. Aldridge says:
Generally by law you had to have a gun, certain ammo and powder or you would be fined. This laws were not because it was a good idea for you to defend yourself at home or shoot game but to bear them as part of the military power of the state because states maintained no standing armies.
January 20, 2010, 8:07 pmDave Hardy says:
“Just reading what David Hardy wrote and would say he is walking on a real, real thin line. Arguing the English right to bear arms was an individual one not having anything to do with militia service is too easy to debunk.”
Have at it. Please.
I’d like to hear your argument that the English right to arms wasn’t individual and had everything to do with militia service.
January 20, 2010, 8:08 pmJ. Aldridge says:
Just read the the parliamentary discussion on the subject. You know, where they talked about arming the protestants so they could bear arms in any military employment against the papists militia. Of course it wasn’t much of a right since it was wholly dependent upon current law.
January 20, 2010, 8:19 pmDave Hardy says:
“Dave Hardy: I’d like to hear your argument that the English right to arms wasn’t individual and had everything to do with militia service.”
“Just read the the parliamentary discussion on the subject. You know, where they talked about arming the protestants so they could bear arms in any military employment against the papists militia. Of course it wasn’t much of a right since it was wholly dependent upon current law.”
I think I missed that part. Perhaps you could fill me in on it? (Evil grin, then breaks into hollow, mocking, laughter). You’re not going to get away with making it up.
January 20, 2010, 8:29 pmJames N. Gibson says:
But again how do you explain the presence of arms that were not of Federal caliber in private hands. And again you are still arguing that the only reason to have arms is a military one that doesn’t explain giving arms to men after completing their military service. By the way, love your recognition of the 1792 militia act and its fines for noncompliance since Justice Steven’s in Perpich stated that the act was virtually ignored from 1800 until its repeal in 1901. My statutes come into effect twelve to fifteen years later.
January 20, 2010, 8:34 pmBrett Bellmore says:
It does have the advantage, so far as I’ve been able to tell, of being true.
January 20, 2010, 8:44 pmJimmy says:
I think you are confused. No one is saying that individuals “purely” owned guns for militia or military service. I am not really sure where you got that I have asserted this idea. Again, you are reaching your argument beyond the elasticity of the discussion.
January 20, 2010, 9:35 pmJimmy says:
To clarify the scope of the 1792 Militia Act and its enforcement…many states appealed to the government that compliance with the act was possible, including Maryland. The government responded by stating the compliance with providing arms was left to the enforcement of the states. Each state responded differently. Some supplied the arms for a militia should it be called into federal service, others supplied arms for those that were too poor to provide them, and others did nothing.
January 20, 2010, 9:38 pmJimmy says:
Mr. Hardy, the legislative and historical record on this is well covered. I am assuming you are relying on your 1980s article and Malcolm, but Schwoerer and Charles have addressed the interpretational problems
January 20, 2010, 9:44 pmDave Hardy says:
Actually, I was relying upon the original materials. Charles hardly answers them.
“For example, Sir Richard Temple stated that the “Militia Act was made use of to disarm all
England.” What Temple meant by “all England” was what has already been conclusively shown. By commissioning Catholics as Lieutenants, James II placed the power of arming the militia in papist hands.”
Wait a minute. Where in the record is the second sentence found?
“John Maynard confirmed this when he stated that James II’s use of the Militia Act was “an abominable thing” that the King used “to disarm the nation, to set up a standing army.””
(1) How does that confirm the above, (2) the portions of the Militia Act to which objection is being made are those which authorized gun confiscations.
“John Maynard also expressed this concern. He thought the Militia Act “was
made to disarm all Englishmen, whom the Lieutenants should suspect, by day or by
night[,] by force or otherwise.” It upset him that this was being done in Ireland
“for the sake of putting arms into Irish Hands,” and because it was being done by
Catholics without cause. Therefore, to the Convention, disarming dangerous
persons was supported, as long as did not occur to prominent members of Parliament
or the upstanding Protestant gentry.”
The last sentence is an interpretation without justification, esp. since the Journal shows that the reference to Catholics being armed was added late in the process, and described as a further aggravation, not as the core of the matter.
Not to mention switching subjects. To employ a Catholic in any governmental capacity, James II had to give a dispensation from the Test Act. He gave dispensations to *regular army officers*. I am unaware of any given to militia officials. But the article confutes the two. “James II’s employment of Catholics to military appointments changed all of this. With Catholic officers now in charge of searches….” No, it was militia lords lieutenant, and their deputies, who could conduct searches, not regular officers.
P. 366: “As will be shown, many Protestants were also disarmed in large amounts”
January 20, 2010, 10:24 pmJames N. Gibson says:
Jimmy, are you reading from Arming America?
The 1792 Act required that by 1798 all men subject to militia duty would be properly armed with a musket of proper caliber (weight of shot). Because it became apparent in 1798 that half the men had weapons of the wrong caliber (Federal Debate on the 1798 Act) they passed a law in which the Government took responsibility for the initial purchase and delivery of proper arms from the manufacturers to men at all points around the country. Once the guns would arrive the men would then purchase the arms either by coin or through some other medium (Clairborne Letters show the men purchased their arms with Cotton at market rate).
By the way, regarding your comment that two states did not raise troops for the war of 1812. Which two (I have linked this to the Federal record showing the number of militia raised per year of the war by the individual states). My data shows three states that didn’t raise militia in the first year of the war, Connecticut, Rhode Island and Delaware. That didn’t last however after British raids on Delaware and the coast of New England (and the taking of Maine in 1814). In 1814 the country fielded 197,660 militia from all the states and territories compared to only 49,000 in 1812.
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January 20, 2010, 11:42 pmJ. Aldridge says:
Never heard of the Manuscripts of the Marquess? Not familiar with the Duke of Ormond who had formed an all Irish Militia and provided Protestants who served in his militia with their arms? Remember James II moved to selectively disarm Ormond’s militia under rumor of another rebellion similar to that of 1641 but Papists were allowed to remain armed and employed in militias contrary to the law of the time.
The so called English right to arms has everything to to with arms of the militia and no amount of malpractice will change the fact.
January 21, 2010, 12:34 amDave Hardy says:
“Never heard of the Manuscripts of the Marquess?”
I am an expert on Restoration pornographic playwrights, and regard that as boring compared to Wilmot’s Sodom.
“Not familiar with the Duke of Ormond who had formed an all Irish Militia and provided Protestants who served in his militia with their arms?”
Which proves?
“Remember James II moved to selectively disarm Ormond’s militia under rumor of another rebellion similar to that of 1641 but Papists were allowed to remain armed and employed in militias contrary to the law of the time.”
Which proves? The papists being armed was added late in the leg history and as a further aggravation, not as the core of the issue.
“The so called English right to arms has everything to to with arms of the militia and no amount of malpractice will change the fact.”
Funny that Somer’s Notes, the best original evidence of the Parliamentary debates, never mentions concerns about the militia, except that they were used to disarm people. Not a word about Catholics taking over the militia structure. Because it didn’t happen.
January 21, 2010, 12:50 amJimmy says:
By the way, regarding your comment that two states did not raise troops for the war of 1812. Which two (I have linked this to the Federal record showing the number of militia raised per year of the war by the individual states). My data shows three states that didn’t raise militia in the first year of the war, Connecticut, Rhode Island and Delaware. That didn’t last however after British raids on Delaware and the coast of New England (and the taking of Maine in 1814). In 1814 the country fielded 197,660 militia from all the states and territories compared to only 49,000 in 1812.
First I said “couple of states”, which means more than one. Second, of course they supplied their militia after British came! I never said they did not. In fact, three justices stepped in and sent the governors letters on the interpretation of the Constitution to this effect. It is all quite interesting stuff, but we digress.
January 21, 2010, 6:17 amJimmy says:
We will have to agree to disagree. I have read your article and Malcolm’s book and I think Charles and Schwoerer characterize the political situation correctly. And yes, Catholics were employed as “Lord Lieutenants” in lieu of the Protestant landed gentry. This is something that is repeated over and over in the political pamphlets of the era. The context of the disarming you mention, however, was not. I will side with the group that has every Stuart England historian’s approval except Malcolm and we can go our seperate ways. Maybe it is a conspiracy like so many NRA supporters claim…(insert Scooby Doo mystery music here…) Come on, that was funny!
January 21, 2010, 6:27 amDave Hardy says:
“And yes, Catholics were employed as “Lord Lieutenants” in lieu of the Protestant landed gentry. This is something that is repeated over and over in the political pamphlets of the era.”
Repeated over and over … you have some examples?
“The context of the disarming you mention, however, was not.”
You’ve read Lord Somer’s notes of the debates in the House of Commons?
“I will side with the group that has every Stuart England historian’s approval except Malcolm …”
How about J.R. Western?
January 21, 2010, 8:47 amPubliusFL says:
By that standard no right of Englishmen was “much of a right.” Under the British constitution, Parliament is sovereign, period.
January 21, 2010, 9:40 amJ. Aldridge says:
Proves the events that lead to arming just the the protestants. This is something so called “researchers” love to jump over and pretend doesn’t exist.
Bottom line it was an attempt to reverse the disarming of the protestants whom Ormond had armed into an all Irish militia. If you think there is no evidence of that you are gravely mistaken.
January 21, 2010, 10:30 amJimmy says:
First, J.R. Western’s interpretation never really answered the question as Charles points out. Looking at Western’s footnotes, though, he doesn’t really delve into the provision or its interpretation. He merely mentions it in passing. So I wouldn’t really rely on it as authority since he did not try to answer the question (this is very usual in history). Meanwhile, Schwoerer and Charles actually looked up the pamphlets concerning these issues.
Second, I have read Somer’s debates. There are three versions of the debates including Somers. It must be noted that his statements are paraphrased and summarized. It is hard to take anything in the debates too literal without putting into a larger context, i.e. other support from the print culture, personal letters, etc. I think Charles does thisand addresses the debates in multiple places in his article (you got me curious so I reread the first half)
Third, you got me curious whether there was two different lieutenants (you imply there was a militia and a military). There is not a distinction, unless you can prove otherwise, i.e. Lord Lieutenant. You can see this in the “Historical Dictionary of Stuart England”, stating that the office was acknowledged in militia acts.
Fourth, regarding the political pamphlets I have cut and pasted Charles “Self-Preservation” article below on pages 49-50. You must also remember the English Declaration of Rights and the Scottish Claim of Right also state this in their documents. I am sure you will disagree, but thought I would provide you with it!
“The popular print culture of the Glorious Revolution confirms this. For instance, Samuel Johnson’s 1688 tract entitled Several Reasons for the Establishment of a Standing Army, and Dissolving the Militia is telling. It was a satirical piece that discussed the disarming of the militia by James II’s appointing Catholics as military lieutenants. The tract sarcastically made such statements as “there are no Irish Papists in the Militia” and a “Popish Army is a Nullity.”182 Johnson also sarcastically stated a standing army was preferred because “the Lords, Gentlemen, and Free-holders of England, are not fit to be Trusted with their own Laws, Lives, Liberties, and Estates[.]”183 This last statement is significant because it shows how seventeenth century England viewed the militia. It was the establishment that secured the lives, liberties, property, and religion of the nation.
January 21, 2010, 10:32 amJohnson’s tract is just one of many which show that the “have arms” provision was intimately connected with the employment of Catholic lieutenants. Gilbert Burnet wrote of his displeasure, stating, “The Militia [is] put into the Hands of Persons not qualified by Law; and a Popish Mercenary Army maintained in the Kingdom in Time of Peace, absolutely contrary to Law.”184 Burnet believed such employment “struck at” “all the rights of the Church of England, and the whole establishment of the Protestant Religion[.]”185 Robert Ferguson described James II’s employment of Catholic lieutenants as [Page50] “committ[ing] and entrust[ing] to such, who judge it to be both their Duty and Meritorious to Rob, Destroy and Extirpate us.”186 Andrew Hamilton attributed taking up “Arms in defence of the laws” because the Protestants were “no longer under obligation to be active in our own Destruction, to acknowledge Officers whom our Laws did incapacitate[.]”187 Not to mention, the 1689 Declaration of Rights itself and the similar 1689 Scottish Claim of Right both attributed the allowance to “have arms” to the employment of Catholic lieutenants.188″
Dave Hardy says:
Yesterday and this day some progress was made in the House in those two points wherein all agree for the disbanding of the army (militia),
Is the parenthetical your insertion?
January 21, 2010, 8:11 pmDave Hardy says:
“First, J.R. Western’s interpretation never really answered the question as Charles points out. Looking at Western’s footnotes, though, he doesn’t really delve into the provision or its interpretation. He merely mentions it in passing. So I wouldn’t really rely on it as authority since he did not try to answer the question (this is very usual in history). Meanwhile, Schwoerer and Charles actually looked up the pamphlets concerning these issues.”
My point was that one should not say that every historian of the period except Joyce Malcolm reached a certain conclusion. There’s Malcolm and Western (a quite respected military historian covering the period) vs. Schwoerer and Charles.
“Second, I have read Somer’s debates. There are three versions of the debates including Somers. It must be noted that his statements are paraphrased and summarized.”
All reports of the debates are such. Shorthand hadn’t been invented.
“It is hard to take anything in the debates too literal without putting into a larger context, i.e. other support from the print culture, personal letters, etc. I think Charles does thisand addresses the debates in multiple places in his article (you got me curious so I reread the first half)”
He seems most concerned with arguing that the statement in the debates mean anything but their most apparent meaning.
“Third, you got me curious whether there was two different lieutenants (you imply there was a militia and a military). There is not a distinction, unless you can prove otherwise, i.e. Lord Lieutenant. You can see this in the “Historical Dictionary of Stuart England”, stating that the office was acknowledged in militia acts.”
Lords Lieutenant were a militia post, not regular army. The regular army had lieutenants, but not Lords Lieutenant. In the Elizabethan period, “militia” was sometimes use to describe “the entire defense establishment,” including even ships, but by the 1660s it had a narrower meaning.
“Fourth, regarding the political pamphlets I have cut and pasted Charles “Self-Preservation” article below on pages 49–50. You must also remember the English Declaration of Rights and the Scottish Claim of Right also state this in their documents. I am sure you will disagree, but thought I would provide you with it!”
Where in the English Declaration of Rights does it mention the militia?
“The popular print culture of the Glorious Revolution confirms this. For instance, Samuel Johnson’s 1688 tract entitled Several Reasons for the Establishment of a Standing Army, and Dissolving the Militia is telling. It was a satirical piece that discussed the disarming of the militia by James II’s appointing Catholics as military lieutenants.”
OK, let’s watch. “Military lieutenants” is an interesting phrase, BTW.
” The tract sarcastically made such statements as “there are no Irish Papists in the Militia” and a “Popish Army is a Nullity.””
Which would establish … that at least in Ireland, there were some Irish Catholics in the militia. It does not do anything to prove that this employment had much to do with the declaration that protestant subjects had the right to have arms for their defense. I’ve seen a similar erroneous history advocated as to the 2nd Amendment. Find a political issue of the day (concern that Congress might not prove for arming the militia), and proclaim that this MUST have been the intent behind the 2A, when that is demonstrably not the case.
” Johnson also sarcastically stated a standing army was preferred because “the Lords, Gentlemen, and Free-holders of England, are not fit to be Trusted with their own Laws, Lives, Liberties, and Estates[.]”183 This last statement is significant because it shows how seventeenth century England viewed the militia. It was the establishment that secured the lives, liberties, property, and religion of the nation.”
Sure. But hard to see the connection between that belief and the Declaration of Rights.
“Johnson’s tract is just one of many which show that the “have arms” provision was intimately connected with the employment of Catholic lieutenants.”
Hmmm… where did it do that? Read carefully and you see the sleight of hand.
“Gilbert Burnet wrote of his displeasure, stating, “The Militia [is] put into the Hands of Persons not qualified by Law; and a Popish Mercenary Army maintained in the Kingdom in Time of Peace, absolutely contrary to Law.”
Closer. But hard to judge. And in any event, the fact that Burnet had this complaint proves little about the intent behind the Dec. of Rights. There was an entirely separate issue here — Charles and James had confiscated arms from folks they deemed untrustworthy, and those folks had just won a revolution.
” Burnet believed such employment “struck at” “all the rights of the Church of England, and the whole establishment of the Protestant Religion[.]”185 Robert Ferguson described James II’s employment of Catholic lieutenants”
“lieutenants” or “Lords Lieutenant?”
as [Page50] “committ[ing] and entrust[ing] to such, who judge it to be both their Duty and Meritorious to Rob, Destroy and Extirpate us.”186 Andrew Hamilton attributed taking up “Arms in defence of the laws” because the Protestants were “no longer under obligation to be active in our own Destruction, to acknowledge Officers whom our Laws did incapacitate[.]”
Officers? A big issue of the period was James’ dispensations for Catholic army officers.
“Not to mention, the 1689 Declaration of Rights itself and the similar 1689 Scottish Claim of Right both attributed the allowance to “have arms” to the employment of Catholic lieutenants.188″
And where is that found? The only conceivable reference in the Dec. of Rights is the preamble’s statement that James had violated law by disarming protestants at the same time that catholics were armed … but that was added late in the drafting process, long after the right to have arms was put together, and was cited as a further aggravation fit to be added…. not as the core of the matter.
January 21, 2010, 8:35 pmJimmy says:
I started writing a long reply pointing out your inconsistencies, but what is the point? As I said before, no matter what evidence is out there you will disagree and try this tit for tat approach. Go compile some primary sources to write a law review article on it (notice I said primary). That is how it is done. Also, I am sure that the people that looked over his article all were involved in this conspiracy (insert scary music here) in an attempt to go back in time and take away your gun under the 1662 Militia Act, whose search and seizure provision remained in tact until 1757, and through the 1671 Game Act (whose Section 3 remained in force until 1706). Those bastards…taking away your gun in the seventeenth and eighteenth centuries
January 22, 2010, 6:31 amJimmy says:
You got me curious as to whether Charles was wrong that Catholic Lord Lieutenants were appointed over the militia. First, Samuel Johnson’s tract makes it clear, but also Charles is right because it is well documented by the acclaimed Stuart England historian John Miller. See “The Militia and the Army in the Reign of James II,” 16 The Historical Journal 659-79 (1973). What is interesting about Miller is he shows not everyone agreed with Western. In fact, he states in footnote 9 that Western seems to have abandoned some of his earlier claims. Also, Western was never around during the height of this debate. He unfortunately passed away.
January 22, 2010, 10:44 amJ. Aldridge says:
I think whoever inserted it was to illustrate the army raised due to the Dutch conflict of 1667 also included militia regiments that had been made part of the army. It was this army that was disbanded because House of Commons declared a standing army was a grievance and only militias should be maintained (but only Papists were allowed).
January 22, 2010, 1:10 pmJimmy says:
From the “Declaration of Reasons” that William came to England in 1688.
“They have likewise disposed of all Military Imployments, in the same manner: For tho the Lawes have not only excluded Papists from all such Imployments, but have in particular provided that they should be disarmed; yet they in contempt of these Lawes, have not only armed the Papists, but have likewise raised them up to the greatest Military Trusts both by Sea and Land, and that Strangers as well as Natives, and Irish as well as English, that so by those means having rendred themselves Masters both of the affairs of the Church, of the Government of the Nation, and of the course of Justice, and subjected them all to a Despotick and Arbitrary power, they might be in a capacity to maintain and execute their wicked designs by the assistance of the Army, and thereby to enslave the Nation.”
January 22, 2010, 6:34 pmDave Hardy says:
“Dave Hardy: Yesterday and this day some progress was made in the House in those two points wherein all agree for the disbanding of the army (militia),
Is the parenthetical your insertion?
I think whoever inserted it was to illustrate….”
??????????? Whoever inserted it?
January 22, 2010, 8:11 pmDave Hardy says:
“You got me curious as to whether Charles was wrong that Catholic Lord Lieutenants were appointed over the militia. First, Samuel Johnson’s tract makes it clear, but also Charles is right because it is well documented by the acclaimed Stuart England historian John Miller. See “The Militia and the Army in the Reign of James II,” 16 The Historical Journal 659–79 (1973).”
I’ll check that out. For now, let’s assume it for the same of the debate. If there were Roman Catholic Lords Lieutenant, how is that connected to “the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law”?
The most apparent connection is that the Militia Act of 1662 authorized Lords Lieutenant to seize arms from persons they thought disaffected, and the “subjects which are Protestants” wished protection against arms confiscation by Lord Lieutenant who were not. It’s an individual right.
January 22, 2010, 8:18 pmJimmy says:
The fault with this assumption is the 1662 Militia Act search and seizure of arms provision was never altered or asked for alteration from its inception until 1757 when no provision appeared in the 1757 Militia Act, and at that point it received heavy opposition in Parliament. It was popularly supported in Parliament both prior to and after the Glorious Revolution. Malcolm fails to address this point. The only thing any of the pamphlets or debates reveal about disagreement with the 1662 Militia Act is they had a problem is Parliament being expressly restricted from exercising its right of self-preservation against the soveriegn as it did in 1642, and ultimately did in 1688 again once William landed. This “grievance” with the Militia Act was immediately fixed after William took the throne. It was the third act passed. However, the search and seizure provision remained with NO ONE asking for its revision. Arms could be searched and seized from those not qualified to have them and those disaffected to government (i.e. did not support government or were suspected of not supporting government).
It is a very limited individual right (allowance or what ever you want to call it) for qualified Protestants appointed by the Lord Lieutenant to take part in defending the Realm. The use of the phrase “arms for their defence” in this context, in both Parliament and the contemporary pamphlets, repeatedly affirms this understanding of the language. No one in your corner has found anything otherwise.
In my opinion, you are trying to salvage a theory that does not comport with the historical facts and understaning of seventeenth century political thought. If your theory is correct, there would have had to been a conspiracy to prevent this from happening, as Malcolm suggests happened. However, she provides no primary or secondary sources to support her claim. Is there a “possibility” of this being the case….of course, but there is a small possibility of a plane landing in my living room right now too or me winning the megamillions tonight.
January 22, 2010, 9:39 pmDave Hardy says:
But you go in a circle.
“the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law”
Your argument is that since the 1662 Militia Act was not promptly repealed, the provision of the Dec of Rts was not aimed at the provision allowing arms to be confiscated — that its clear wording had some unclear and secret purpose, that its framers (otherwise articulate men) for some reason became unable to articulate.
You still have not come forth with any reason why, if the fear was of Catholic Lords Lieutenant, it would not related to their powers to disarm other Englishmen, which would be the obvious thrust of this provision’s language were that the fear.
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January 23, 2010, 3:40 amJimmy says:
That is just it, there was a overarching fear of Catholicism and that it would creap in and destroy Protestantism…the entire basis of their lives, liberty, and estates. You also have to remember the Declaration of Rights, just like the Declaration of Independence, was both alleged and real. As Charles points out, the “arms” grievance was more alleged than real. As early at 1680, it was feared Charles II would place Catholics as Lieutenants, which would disarm the nation. The disarming he is referring to is not “individual” disarmament of unqualified persons or qualified persons, it was that the entire militia arsenal was placed in the hands of Catholic. The Lord Lieutenant controlled the arms, assigned who was able to “have” them, and assessed men’s estates. This is why the 1662 Militia Act is signicant for the search and seizure provisions. It was a remnamnt from the Interegnum that was popularly supported.
As Parliament stated many times, it did not want to put the defense of the nation in the hands of men without property. You can say this argument is circular but you haven’t provided anything that supports Malcolm’s stance. Her game law theory was debunked by Schwoerer and Charles, Charles especially. He showed that the seizure of “guns” in the Game Act was actually not repealed until 1706 (Section 3 of 1671 was repealed). The reason for the repeal had nothing to do with the a alleged right to own ars for self defence…read the debates. There was a “great inconvenience.” This great inconvenience was that there was a double penalty with Henry VIII’s law, Lord Lieutenant’s arming and arraying the militia, and the 1671 Act. Malcolm asserts something off the wall here….i don’t even remember. But none of the contemporary accounts back up her assertion. She merely states these accounts are wrong, and she is right. (no evidence again, just her belief)
There is a reason why no English historian has supported Malcolm’s claims. It lacks context. I love that some gun blogs have called these historians “liars”, but they don’t address the sources or the history. They are merely expressing their personal beliefs, their political ideology, and what Malcolm has led them to believe. If they should be mad at anyone, it is the people that didn’t do their research and jumped to support Malcolm’s theory.
In short, I suggest you read all of Charles and Schwoerer’s works TWICE (this helps me sometimes because you will miss something important the first time), and when Schwoerer’s new book on arms in England comes out, you read that twice and work from there as to find actual sources that support your argument. You can hypothosize in contemporary times about what you “think” the “have arms” provision means, but that is that is the same as a 1L saying “I believe the Constitution (insert stupid phrase here).” You must immerse yourself in seventeenth century political thought and sources. You seem to be trying to find that one to two sources or arguments to give Malcolm credit. Supporting these arguments will NOT be easy, for historians familiar with the materials will easily tear them apart.
As you argue with the P or I Clause…the issue is 1868 because that is when it was adopted. The same holds true for the “have arms” provision. It was adopted in 1688-89, thus that is the standard year, not later. Why do you think English Historians have been so upsupportive? They understand the political and social culture, while Malcolm seems to try to rationalize something that isn’t there. Happy hunting!
January 23, 2010, 7:50 amDave Hardy says:
” As early at 1680, it was feared Charles II would place Catholics as Lieutenants, which would disarm the nation. The disarming he is referring to is not “individual” disarmament of unqualified persons or qualified persons, ”
That’s the error. We know that (1) the Militia Act authorized Lords Lieutenant to disarm individuals (NOT just to refuse to issue them government arms) (2) the Game Act likewise authorized seizure of arms for a broad swath of the population; (3) Charles liberally used the Militia Act to disarm; (4) James tried to use the Game Act extensively, altho there is little evidence his orders were obeyed.
None of this had anything to do with militia arsenals. If there was a connection to the potential for James appointing Catholic Lords Lt., the connection would have been a fear that they would use the Acts, esp. the Militia Act, to disarm protestants. Hence the guarantee that protestant subjects may have arms for their defense.
“it was that the entire militia arsenal was placed in the hands of Catholic. The Lord Lieutenant controlled the arms, assigned who was able to “have” them, and assessed men’s estates. This is why the 1662 Militia Act is significant for the search and seizure provisions.”
“Secret meaning” interpretation has a problem when all the legislative history favors the plain meaning. The Bill starts out as “It is necessary for the publick safety” that protestants have “arms for their common defense.”
First, the public safety language gets stripped out in committee. Then “common” is deleted from “for their common defense.” It’s to be for “their defense,” not the common defense. Both moves make no sense if there was a secret, unspoken, intent to protect militia arms only. Add in the legislative history, of complaints about the militia act being used to disarm — not about failure to issue militia arms, not about the militia as such being disarmed, but about individuals being disarmed — and the argument for a secret meaning becomes empty.
“You seem to be trying to find that one to two sources or arguments to give Malcolm credit. Supporting these arguments will NOT be easy, for historians familiar with the materials will easily tear them apart.”
Well, considering that Joyce Malcolm not only studied the original materials, but spent a year in Great Britain to do it, that Harvard Press brought out her book on this specific subject 15 years ago, to excellent review from historians…. I think all those historians must have taken a very long nap.
January 23, 2010, 12:29 pmDave Hardy says:
I’ve been skimming Charles, found a number of rather serious errors of fact. So many that I find it hard to enumerate them. Let me just give you the clear errors in just three pages of his article:
Game Act of 1692: “These qualifications help explain why the word “guns” was removed from the search and seizure provision. It expressly conflicted with the Militia Act’s requirement that all persons with a yearly revenue of 50l. were required to provide a “Foot Souldier and Armes” for the defense of the realm.”
No. The Game Act and the Militia Act used completely different qualifications. The Militia Act used revenue, and the Game Act used rental value of land owned.
Second, the 1662 Militia Act did not “require” that everyone over the value provide a soldier, or serve. That’s an anachronism. It authorized the Lord Lieutenant to require a person to provide such, and only a small percent of Englishmen were so chosen. It provided that the Lord Lt could not impose the requirement on someone who had land less than that value.
“This is likely what Lord Macclesfield was objecting to in the 1706 Game Act’s debates when he stated that it was a “great inconvenience” to maintain “guns” in the Game Act.”
No evidence given for this proposition. All we know is that he said it was a great inconvenience. He said nothing about the militia. In fact, Charles cites NOBODY at any relevant time who worried about a conflict between the two statutes. That’s purely his speculation.
“Henry VIII’s statute regulating arms … limited what arms one could own. The act required individuals have “lands, teñts rents fees annuyties or Office, to the yeerly value of one hundred Pounds.” Otherwise, it was unlawful for them to own, possess, or use guns.”
The citation is to §1 of the statute. It ignores §6 of it, allowing “all Gentlemen Yeomen and Servingmen of everie Lorde … and to all inhabitants of every Cittie Boroughe and Markett Towne, to have and kepe in everie of their houses and such hangune or hangunnes of the length of one whole Yarde…” 33 Hen. VIII c. 6 §6.
“Those who did qualify had to ensure that the gun was “not of the lengthe of one whole Yarde or hagbut or demyhake beinge not of the lenghe of thre quarters of a Yarde, Tenne pounds sterlinge.”
Got it completely backward. The law FORBADE guns of under the cited sizes. It was a minimum length requirement, not a maximum length one.
“The statute also regulated the manner in which one could use firearms. Those who were qualified could shoot lawful firearms only “within any Cittie Boroughe or Market Towne or within one quarter of a myle of any Cittie, Boroughe or Market Towne” at “Butt of Banck of earth in place convenient, or for the defence of his pson or house.””
Again, completely backward. The law FORBADE shooting in town or within ¼ mile of it. “no pson or psons … shall in anywise shoot in or with anye handgune demyhake or hagbutt [early guns] at any thinge at lardge, within any Cittie Boroughe or Markett Towne or within one quarter of a myle of anny Cittie Boroughe or Markett Towne, excepte it is at a Butt or Banke of earth in place convenient, or for the defence of his pson or house…” 33 Hen. VIII c. 6 §IV.
“As has already been addressed, the 1671 Game Act’s qualifications for hunting instruments conflicted with the Militia Act. While persons with a yearly revenue of 50l. were required to provide certain arms, it was illegal for these same persons to possess guns or bows for hunting if they did not make a yearly revenue of 100l.”
As noted above, no conflict. Persons with revenues above 50 pounds were not required to serve in the militia, and the Game Act limitation on gun ownership did not key on revenue.
1692 Game Act: “What Individual Right Scholars ignore is that while Section Two’s search and seizure of illegal hunting instruments may have been revised by omitting “guns,” Section Three remained in force. It still stipulated that any person not meeting the hierarchal and socio-economic qualifications were “not allowed to have or keepe for themselves or any other person or persons any Guns, Bowes, Grey hounds, [or] Setting-dogs” to hunt protected game.”
Wrong. The 1692 Act revised section three, replacing it with a list of forbidden items that did not include guns. Unqualified persons were not to “have, keep, or use any bows, greyhounds, setting dogs…” 4&5 Wm & Mary c. 23 §3. “Guns” were omitted. It provided that prior Game Acts “not herein or hereby altered or repealed” would remain in force. Id. §2.
This is just three pages out of a large article. I see many other errors, but have work to do and no time to enumerate them.
January 23, 2010, 8:16 pmJ. Aldridge says:
When all persons were ordered disarmed in London due to rioting, what person were excepted? Persons who made up the City Militia because the people had the sacred right to bear arms for their common self-defense.
January 24, 2010, 1:09 amJ. Aldridge says:
^^^I am referring to the 1780 riots.
January 24, 2010, 3:51 pmAdam Kamp says:
On a completely different note, does anyone have any idea when there is expected to be a decision on _McDonald?_
January 25, 2010, 1:38 pm