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Privacy and Guns:

Dan Solove, a noted privacy expert and advocate, and supporter of gun controls (though not of absolute gun bans), responds to my earlier post on the subject; I meant to blog a link about this weeks ago, but it slipped through the cracks.

Related Posts (on one page):

  1. Privacy and Guns:
  2. Privacy and Guns:
Jeroen Wenting (mail):
Registration invariably leads to confiscation and is therefore a serious intrusion.
That's not just true for firearms but for almost everything for which registration becomes required.

Every time you register something you are or own with a government agency (or anywhere) you loose a bit of your freedom and privacy.
1.10.2006 3:52am
Roger Schlafly (www):
It looks like you forgot the link to Solove's blog.
1.10.2006 4:24am
SomeJarhead (mail):
Boy, he just doesn't get it.


However, I generally support government recordkeeping of gun ownership as well as requiring technologies to enhance the traceability of discharged ammo to particular weapons. This might be very useful in solving gun crimes.


He's talking, of course, about the so-called "ballistic fingerprint." This is like identifying a chameleon by the color of his skin. The material characteristics of a firearm (such as the contours of the firing chamber or grooves in the barrel), unlike fingerprints, are easily modified and don’t return to any natural state. Next he’ll suggest profiling criminals by their shoelaces…


Regarding open carry laws, I have a hard time understanding the justifications for these laws. Do we really want people walking around with their guns openly displayed in their holsters? This isn't the Wild West, and I don't understand the benefits of prohibiting concealed guns. Unless there's a compelling benefit articulated, I don't think that open carry laws would be justified against the infringement upon privacy.


Rhetoric is one thing, hyperbole another. “Open carry” and “gunfight-at-noon” are diametrically opposed ideals. An ideologue like Solove understands this; he just doesn’t like guns. However, since the justifications for open carry (as opposed to no or concealed carry) are so apparent, so truly and undeniably obvious, that Solove’s inability to comprehend them must be a deliberate falsehood developed to prepare us for his greater logical fallacy:


Although I am generally sympathetic to gun controls (not absolute bans of guns), I don't support infringing upon the privacy of gun owners.


Some free advice buddy: stick to Dr. Seuss.
1.10.2006 8:41am
David Shimm (mail):
The lefties would be apoplectic if emanations and penumbras of the "right to privacy," which they cherish to keep abortion legal, were held to extend to the right to keep and bear arms!
1.10.2006 9:02am
Richard Bellamy (mail):

Registration invariably leads to confiscation and is therefore a serious intrusion.


Is this true? I have lots of things "registered" with various public and private entities -- my car, my state bar memberships, my gym membership . . . I'm not really afraid of getting any of them confiscated unless I break serious traffic laws, commit a dis-barrable infraction, or pee in the locker room shower.

Except for a few extremists who claim to want to ban guns, why would anyone think that registration would "invariably" lead to confiscation?
1.10.2006 9:31am
Noah Klein (mail):
SomeJarhead:

You don't see that open carry laws can lead to mistaken assessments of a threat against a person, which would not happen if the weapon was concealed. Let me just ask you a question about this. You indicate from your name that you were a Marine. If this is true, let's you were patrolling in both a warzone and in a peacetime base outside the U.S. and would you feel a greater threat from a person who openly displayed a weapon or from a person who did not display a weapon? Each I know could equally be a threat. I wasn't alive at the time of Vietnam, but I understand from the history that VC often not only failed to wear a uniform, but also would ditch weapons and other materials when a U.S. patrol would come upon them. I understand they did this to try to make them appear as a non-threat to U.S. personnel, when their active engagement in the battle made them a threat. Yet I think a displayed weapon would obviously be a threatening thing to a member of the military. Why wouldn't this be so for police officers or others who carry weapons?

Noah
1.10.2006 11:02am
Pitman (mail):
Living here in NYC I seem to recall reading that most of the guns used in murders here are brought in from other states after having been bought legally. I don't think that it is unreasonable that someone who buys guns would after a certain period of time (e.g. every year or every two years) prove that they still own the gun and if not maybe have some transfer of ownership set up so that a legally bought gun cannot then be flipped for illegal use. Is it more paperwork, yes, but those who use guns legally would not be impeded in their purchase or use of them at all.
1.10.2006 11:03am
musterion (mail):


Except for a few extremists who claim to want to ban guns, why would anyone think that registration would "invariably" lead to confiscation?



Because, it always has in the past. Registration of firearms has been used as an early step towards a total ban.
1.10.2006 11:09am
Neal Lang (mail):
Is this true? I have lots of things "registered" with various public and private entities -- my car, my state bar memberships, my gym membership . . . I'm not really afraid of getting any of them confiscated unless I break serious traffic laws, commit a dis-barrable infraction, or pee in the locker room shower.

The purpose of automobile registration is tax collection. The purpose of "state bar membership" is enforcement of a trade monopoly. The purpose of gym membership registration is to insure membership fee collection. The purpose of firearms registration is "power".

Tyrannies cannot share "power" with "the People", else they are no longer tyrannies. An armed "people" has power. As long as a government is not a tyranny, firearms registration might be benign.

Unfortunately "power corrupts". In the US, firearms registration, even on the local level, have fomented tyrannies. The case of State sponsored racism in the South is an example. Additionally, such systems often lead to corruption, as in New York City, where only those with political influence can register firearms.
Except for a few extremists who claim to want to ban guns, why would anyone think that registration would "invariably" lead to confiscation?

A recent case of where "registration lead directly to confiscation" was in California, where legally registered semi-automatic firearms were later confiscated by the State for no good reason.

BTW, as the Supremes have found that the 5th Amendment precludes criminals from obeying State/Local firearms registration laws, only non-criminals are required to register their firearms. Just how forcing honest folks to register their firearms fosters controlling crime has yet to be demonstrated.
1.10.2006 11:16am
uh clem (mail):
Registration of firearms has been used as an early step towards a total ban.

And heroin addicts all started with milk. Do we ban milk, or do we just note the fallacy of your logic and move on?

Richard Bellamy has it right that lots of things are required to be registered' let's see: bicycles, canoes, kayaks, cars, houses, dogs, woodstoves, houses. Is there a secret plan to confiscate our kayaks and bicycles?
1.10.2006 11:21am
Noah Klein (mail):
Neal:

Your last point is the most logical reason I have ssen to describe why gun control laws should be made. That they do not have any effect on controlling crime. I don't know if that is a settled fact, but it is most certainly an area of contention. That gun control laws control crime is not a settled fact either.

You bring up a California case where registration led to the seizure of semi-auto weapons "for no good reason." Can you cite this? I have oftern heard the claim made again today by musterion that registration leads to confiscation. Do you know of any historical evidence beyond the California case above, which I hope you will cite for me where this has been proven?

Noah
1.10.2006 11:27am
Bruce Hayden (mail) (www):
Richard,

I think that a lot of gun rights people are worried that we might have a replay of what happened in the UK. Registration first, confiscation next. Soaring crime rate following, esp. of the night time home invasion type, where burglars come in with bats just in case they meet any resistance.
1.10.2006 11:28am
Andy Freeman (mail):
We have experience with registration and licensing. Yet, advocates of same never point to said experience to support their argument as to its benefits.

This is an instance of a more general circumstance.
We also have experience with imposing various kinds of gun controls. Advocates of same don't bother to point to said experience.

There are two sane reasons - they don't know about the experience or they know that the experience doesn't support their position. For the latter, we get to choose between they think that this time will be different and they have some other agenda.
1.10.2006 11:34am
AppSocRes (mail):
Places where registration has led to confiscation: Most recently: Canada, Australia, the UK, California. A little further back: the Soviet Union, Nazi Germany.
1.10.2006 11:36am
Neal Lang (mail):
I wasn't alive at the time of Vietnam, but I understand from the history that VC often not only failed to wear a uniform, but also would ditch weapons and other materials when a U.S. patrol would come upon them. I understand they did this to try to make them appear as a non-threat to U.S. personnel, when their active engagement in the battle made them a threat. Yet I think a displayed weapon would obviously be a threatening thing to a member of the military.

In South Vietnam a virtual state of "martial law" existed. Anyone armed other than the US and Vietnamese military was a criminal by definition. You cannot compare that situation with the United States where being armed is a "right" and does not make you a criminal.
Why wouldn't this be so for police officers or others who carry weapons?

Except during a state of declared martial law, there is no reason for a LEO to be any more threatened by armed honest folks than by unarmed honest folks. The problem is that too many LEOs consider ALL ARMED FOLKS to be criminals. That wasn't the case when our Republic was founded. In fact, the whole idea of an "armed people" was to insure the "domestic tranquility" by the "keeping of the peace". BTW, an "obviously armed society" is also a "polite society"!
1.10.2006 11:41am
Noah Klein (mail):
Bruce:

OK. I have checked on the UK and found that gun registration can lead to outright bans in some countries. Thus it seems that if we are going to respect people's rights to own weapons as is enshrined in the 2nd amendment and confirmed by the supreme court, then a registration on weapons seems adverse to this.

Noah
1.10.2006 11:42am
Noah Klein (mail):
Neal:

Whether or not the LEO attitudes would have been different during the Revolutionary period is not the issue? The issue is public safety. LEO have to deal with people who do not wish to be confronted by the officer. Everytime the go on patrol they know that their uniform can cause them to be threatened from people. I would think thus they have a reason to feel threatened by people who carry weapons both openly and concealed. This why, as I understand, generally LEO have been against carry laws. Yet you did not answer my question, don't you think there is an inherent threat in open carry laws that mistakes will be made as to threats? Do you think that these potential mistakes are outweighed by the open weapons ability to deter assaults? With second question, I would like you to consider that not all people and I think most people will not carry weapons.

I respect people's rights to own weapons. I do not own a weapon. Basically because I can't afford and have no cause for one because I don't hunt or get to go to the shooting range too often, but I understand people's desire to own a weapon. Yet by its definition owning a weapon is a threat to other people. The owner of weapon is declaring their intention to defend themselves with deadly force if assaulted. Thus the idea of some regulation of this right seems logical. If the regulation does not help ensure public safety, then there is no longer a point to the legislation. But if does then there is point to the legislation.

Noah
1.10.2006 11:56am
Noah Klein (mail):
AppSocRes:

I would like to discuss your point about registration in California leading to confiscation. We in California have banned semi-auto weapons. Whether this ban is a good thing or a bad thing I think is up for debate. Yet, I do not know of any registration prior to the ban. Secondly, we in California have been subject to some of the most extreme examples of gun violence from the Bank of America shooting in North Hollywood, the invention of the drive-by and school shootings. As well as numerous examples of questionable police shootings. You will please excuse us if we through our representatives have tried to counter this violence through regulation, as the Supreme Court has asserted is our right. If these laws do not help counter crime, I will be with you in their repeal for preventing the innocent from having their weapons banned. Yet, as far as I know, after the ban went into effect in 1989 gun violence in California went down in the 1990's.

Noah
1.10.2006 12:04pm
Medis:
I think Richard was responding to this claim:

"Registration invariably leads to confiscation and is therefore a serious intrusion.
That's not just true for firearms but for almost everything for which registration becomes required."

Accordingly, the suggestion that firearm registration in particular might lead to confiscation does not really contradict Richard's point, nor support the claim to which he was replying.

And incidentally, I am also skeptical about registration in general leading to confiscation. Whether registration of firearms specifically would lead to their confiscation is a more difficult question, although I think that in the United States, that would at least very much depend on where you are talking about.
1.10.2006 12:15pm
Wince and Nod (mail) (www):
Noah,

This why, as I understand, generally LEO have been against carry laws.

As I understand it, Police Chiefs, who are, to a certain extent, political figures are generally against carry laws, but patrol officers in this country are generally in favor of them.

Yours,
Wince
1.10.2006 12:19pm
Noah Klein (mail):
Wince:

I know in California patrol officers, obviously this depends on the individual officer, are against carry laws. Secondly, I understand that generally police unions are against carry laws. Everytime a initiative in California for a carry law or other type of regulation of weapons I see the California union for police and sheriff against the carry law and for the regulation. Now it is fair to say that these are political organizations, but they represent the majority of their members.


Noah
1.10.2006 12:27pm
Pete Freans (mail):
Unlike most gun control supporters, I think Dan Solove presents a balanced view of carrying a firearm. I think there was a time in our country where openly displaying a firearm was necessary but I would hesitate to go any further for fear of falling for a John Wayne Hollywood cliché. As our country grows in population and diversity, open carry laws seem out of context and unnecessarily provocative. It appears more reasonable for law enforcement officers to display their weapons both for easy of use and more importantly as a deterrent effect.

As I have commented before on this blog, I believe a concealed weapon proves much more effective in deterring crimes if those criminals are foolish enough to test a concealed carrier. In my experience with even the most sociopathic defendants, I have asked what scares them most in the course of their “careers”. More often than not, it is whether a law-abiding victim is carrying a concealed weapon. It also appears from the course of my informal and unscientific questioning that they expect those of “their kind” (co-conspirators, fellow drug dealers, burglars, etc) to be carrying some sort of weapon as well.

As a conservative lawyer and a legitimate carrier of a concealed weapon, I am very comfortable with registering myself and my firearm(s) with law enforcement officials. I live in a large and diverse city in the northeast and it is unfortunate that the irresponsibility of the few must burden law abiding firearm owners. I don’t necessarily see this as a restriction but as a necessary burden that allows me to enjoy this constitutional right in today’s context.
1.10.2006 12:27pm
NaG (mail):
Yet by its definition owning a weapon is a threat to other people. The owner of weapon is declaring their intention to defend themselves with deadly force if assaulted.

The law-abiding owner of a weapon is only a threat to criminals. I fail to see how this is a threat we should do without.
1.10.2006 12:29pm
Noah Klein (mail):
NaG:

Yet not all carriers of weapons will be law-abiding even if they obtained the weapon and the carry license legally. LEOs know this and will most certainly feel threatened if they see weapon. I will declare now that I am not a LEO and if someone demonstrates to me that a majority of LEOs feel differently than I, I will withdraw my claim. But from a common sense perspective a LEO does not know the person that they see is law-abiding and they will thus be more concerned which can lead to situations that endanger public safety. This may be different for smaller communities, but in big cities I believe it is most certainly the case.

Noah
1.10.2006 12:40pm
Chris S. (mail):
I believe registration also led to confiscation in New Orleans shortly after the hurricane.
1.10.2006 12:49pm
Neal Lang (mail):
I don't know if that is a settled fact, but it is most certainly an area of contention. That gun control laws control crime is not a settled fact either.

To begin - "the People's right to keep and bear arms" is a RIGHT, not a "Privilege". As such, the only reason for "firearms control" is a "compelling State interest". The most stated "compelling State interest" is "crime control". If the issue of whether "firearms control" equals "crime control" is not settled - it can hardly be a "compelling State interest" to allow the State to infringe upon a "right of the People".
You bring up a California case where registration led to the seizure of semi-auto weapons "for no good reason." Can you cite this?

Yes!
In response to the furor over Patrick Purdy and his firearm, the California legislature defined and banned the "assault weapon." In 1989, it passed the Roberti-Roos bill, which listed roughly 70 firearms, generally identified by make and model and required owners of these guns to register them with the state. Additionally the legislature further defined "assault weapons" to include guns with specific characteristics such as pistol grips, magazine capacity, and other cosmetic features. The law was so draconian that even after gun-owners registered their rifles, the guns could not be sold or bequeathed.

Due to poor registration compliance, the legislature also included money for an "education campaign" and extended the grace period for registration until March 1992. If a gun owner was caught with an unregistered gun after that date and prosecuted, it was possible for him to register the offending firearm, thereby reducing the felony to an infraction, and get his gun back. Former Republican Attorney General Dan Lungren, not wishing to further alienate gun owners, as he was planning to run for Governor in 1998, extended the registration date, causing Handgun Control, Inc.(HCI) to file suit.

When Democrat Bill Lockyear, an avowed gun prohibitionist, became Attorney General in 1999, he dropped opposition to HCI’s lawsuit, thereby invalidating every post-1992 registration and causing all those legally-owned firearms to become illegal.

I have oftern heard the claim made again today by musterion that registration leads to confiscation. Do you know of any historical evidence beyond the California case above, which I hope you will cite for me where this has been proven?

The most impressive was pre-War Germany:
The Nazi Weapons Law of 1938 replaced a Law on Firearms and Ammunition of April 13, 1928. The 1928 law was enacted by a center-right, freely elected German government that wanted to curb "gang activity," violent street fights between Nazi party and Communist party thugs. All firearm owners and their firearms had to be registered. Sound familiar? "Gun control" did not save democracy in Germany. It helped to make sure that the toughest criminals, the Nazis, prevailed.

The Nazis inherited lists of firearm owners and their firearms when they 'lawfully' took over in March 1933. The Nazis used these inherited registration lists to seize privately held firearms from persons who were not "reliable." Knowing exactly who owned which firearms, the Nazis had only to revoke the annual ownership permits or decline to renew them.

In 1938, five years after taking power, the Nazis enhanced the 1928 law. The Nazi Weapons Law introduced handgun control. Firearms ownership was restricted to Nazi party members and other "reliable" people.

The 1938 Nazi law barred Jews from businesses involving firearms. On November 10. 1938 -- one day after the Nazi party terror squads (the SS) savaged thousands of Jews, synagogues and Jewish businesses throughout Germany -- new regulations under the Weapons Law specifically barred Jews from owning any weapons, even clubs or knives.

Interestingly, the Nazi Weapons Law (March 18, 1938) was the "template" for the U.S Gun Control Act of 1968, although no "national" firearms registration was included in the U.S. law. Under this law certain firearms have been "banned" based on "no sporting use", a term that has no meaning in a Nation whose people have the "right to keep and bear arms" for self-defense and to guard against tyranny. The "sporting use" terminology came from the Nazi gun control law.

England prior to the 1920s had no "gun control" laws. In the 20s, for reasons similar to the Germans in 1928, the Brits began enacting more draconian gun control, including registering all firearms and requiring police permits to own them (1920 Firearms Act). This lead directly to the confiscation of all handguns in 1997 and subsequently to virtually all firearms, including "b-b guns" being banned and confiscated.

A similar course was followed in Australia:
In 1996, Australia adopted draconian gun control laws banning certain guns (60 percent of all firearms), requiring registration of all firearms and licensing of all gun owners.

In Australia today, police can enter your house and search for guns, copy the hard drive of your computer, seize records, and do it all without a search warrant. It's the law that police can go door to door searching for weapons that have not been surrendered in their much publicized gun buy-back program. They have been using previous registration and firearm license lists to check for lapses and confiscate non-surrendered firearms.

Cities, like New York City used registration as a means to ban and confiscate firearms:
New York City required rifle owners to register their guns in 1967; city council members at that time promised that the registration lists would not be used for a general confiscation of law-abiding citizens' weapons. Roughly one million New Yorkers were obliged to register with police. The New York Times editorialized on September 26, 1967:

"No sportsman should object to a city law that makes it mandatory to obtain a license from the Police Department and to register rifles. . . . Carefully drawn local legislation would protect the constitutional rights of owners and buyers. The purpose of registration would be not to prohibit but to control dangerous weapons."

In 1991, New York City Mayor David Dinkins railroaded a bill through the city council banning possession of many semiautomatic rifles, claiming that they were actually assault weapons. Scores of thousands of residents who had registered in 1967 and scrupulously obeyed the law were stripped of their right to own their guns. Police are now using the registration lists to crack down on gun owners; police have sent out threatening letters, and policemen have gone door-to-door demanding that people surrender their guns, according to Stephen Halbrook, a lawyer and author of two books on gun control.
1.10.2006 12:57pm
Noah Klein (mail):
Neal:

I was waiting for you to bring up the right to keep and bear arms under 2nd amendment. I have never understood why gun rights activists cannot seem to read the full amendment. The amendment reads "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." The word regulated is in the amendment. No other amendment has similar qualifying language. Thus I don't see how this can mean that the right is as absolute as other rights in the bill of rights or as you claim. Thus I don't that the state has to "prove" that their "compelling state interest" is true, but just that this is their reasoning for the provision. I always thought that it was required for the opponents of the said provision to demonstrate that the "compelling state interest" is false. Perhaps I am reading the law wrong, but I don't think so since the courts have consistently backed the state's right to regulate guns since the late 19th century.

Militias, of course, were the objects of the state and thus would be regulated by the state. I have thought that gun rights activists would have a point if they said that the federal government cannot regulate weapons, because militias were state-controlled, but I've never heard this argument made. It is my belief that just as the militias can be forced into the regular military forces, so thus the federal government gains the right to regulate weapons. Yet here you are saying that states can't regulate weapons. That just does not make sense to me.

Finally, as to your point about the registration in California leading to a ban. That 1989 law that you cite WAS the ban. Any registration must have been part of the ban. Thus, it was not passed prior to the ban and therefore would not confirm your point that registration would inevitably lead to a ban, because the ban was already in place before the registration.

Noah
1.10.2006 1:17pm
Houston Lawyer:
I don't understand the purpose of gun registration laws if they aren't intended to be used to infringe on the rights of gun owners. I would venture that the vast majority of guns used criminally aren't legally owned by the person who uses them. Under prior Supreme Court rulings, those who can't legally possess a gun can't be prosecuted for failure to register that gun for 5th Amendment reasons. Therefore, any registration scheme seems primarily intended to make criminals out of otherwise law-abiding people because of their status as gun owners.
1.10.2006 1:29pm
Noah Klein (mail):
Houston Lawyer:

I am not advocating the registration of any or all weapons. Yet as the person here who seems to be arguing the opposing viewpoint, I will offer the reason that people want registration and/or licensing of weapons.

The Brady Campaign gives this a the reason:

"Registration allows for speedier and more reliable tracing of guns used in crime. Without registration, local or state officials must go to the Bureau of Alcohol, Tobacco and Firearms (BATF) for assistance in tracing guns. BATF, in turn, contacts the manufacturer of the gun, who in turns identifies the Federal Firearms Licensee (FFL) to whom the gun was sold. BATF must then seek the cooperation of the FFL in determining who bought the gun from the FFL. If subsequent, or secondary, transfers are not recorded, the investigation can quickly lead to a dead end. An untold number of criminals escape conviction because there is no paper trail or evidence linking them to the crime guns they used.

Registration is designed to reduce illegal gun trafficking by providing for more efficient tracing of guns used in crimes and tougher prosecution of those who sell guns to illegal purchasers. State-based registration of handgun transfers can achieve that objective."

Noah
1.10.2006 1:37pm
Neal Lang (mail):
Whether or not the LEO attitudes would have been different during the Revolutionary period is not the issue? The issue is public safety.

Really? So it is your position that human nature has changed since 1776! Of course, you cannot demonstrate that an unarmed "public" is 'safer" than an "armed public", so on just what do you base your assertion that the "public safety" is benfitted by disarming honest people?
LEO have to deal with people who do not wish to be confronted by the officer.

Normally they are criminals who are generally uneffected by firearms control laws.
Everytime the go on patrol they know that their uniform can cause them to be threatened from people.

Doesn't the idea of paranoid, armed LEOs bother you, at least a little bit? Armed criminals are one thing, but armed honest folks shouldn't concern any LEO. That is, unless it is the LEO who is criminal!
I would think thus they have a reason to feel threatened by people who carry weapons both openly and concealed.

Why on earth should they?
This why, as I understand, generally LEO have been against carry laws.

Where did you get that information? In fact, most LEOs support the "right of the people to keep and bear arms". It is the political hacks in Law Enforcement that don't.
Yet you did not answer my question, don't you think there is an inherent threat in open carry laws that mistakes will be made as to threats?

Why? What makes you more confident in armed LEOs than in armed honest folks? Actually, armed private folks do a better job of "crime control" than do armed LEOs. Perhaps that is why the "pol,itical hacks" in Law Enforcement fear armed citizens.
Do you think that these potential mistakes are outweighed by the open weapons ability to deter assaults?

No! The facts demonstrate otherwise!
With second question, I would like you to consider that not all people and I think most people will not carry weapons.

So, what? Not everyone pays taxes, but everyone benefits.
I respect people's rights to own weapons. I do not own a weapon. Basically because I can't afford and have no cause for one because I don't hunt or get to go to the shooting range too often, but I understand people's desire to own a weapon. Yet by its definition owning a weapon is a threat to other people. The owner of weapon is declaring their intention to defend themselves with deadly force if assaulted. Thus the idea of some regulation of this right seems logical.

The reason most folks own firearms is not hunting and target shooting, but self-defense. One of the reasons firearms are so expensive is the people don't loike firearms make it difficult to produce and sell them, thus increasing the cost. As far as I can see, the only person who should feel "threatened" by my "bearing a firearm" is those who would "assault me", i.e. criminals. Personally, I like the idea that my "right to keep and bear arms" frightens criminals. Unfortunately "regulation" usually means "disaarmament". Again, governments "regulate" because they prefer a monopoly on power.
If the regulation does not help ensure public safety, then there is no longer a point to the legislation.

Exactly!
1.10.2006 1:47pm
Neal Lang (mail):
Now it is fair to say that these are political organizations, but they represent the majority of their members.

Really? Says who? See:Law Enforcement Alliance of America
1.10.2006 1:57pm
Neal Lang (mail):
Yet not all carriers of weapons will be law-abiding even if they obtained the weapon and the carry license legally.

But some will, and will assist in law enforcement. Please tell me how Washington, DC - aplace where only honest folks don't "keep and bear firearms" is better than Vermont, where all honest folks can carry firearms openly if they so choose.
LEOs know this and will most certainly feel threatened if they see weapon.

Why?
I will declare now that I am not a LEO and if someone demonstrates to me that a majority of LEOs feel differently than I, I will withdraw my claim.

Most Cops voted for Bush in the last election while the Police Unions supported Kerry. Who says the unions follow the dictate of the "rank and file". You have been too easily lead by the propaganda.
But from a common sense perspective a LEO does not know the person that they see is law-abiding and they will thus be more concerned which can lead to situations that endanger public safety.

Actually, in a State where honest folks may carry firearms openly, the LEO that sees an armed person can generally assume that they have the legal right to do so and are no threat to them or the "public safety". In fact, just the opposite - as an armed honest citizen can be expected to support the LEO in the maintenance of the "public safety". If a LEO seeing someone exercising their rights to "keep and bear arms" is a cause for paranoia on the part of a LEo, I suggest it is the LEO who needs to be disarmed, and not the honest citizen.
This may be different for smaller communities, but in big cities I believe it is most certainly the case.

Exactly why is human nature different in "smaller communities" than in "big cities". The implication is almost racist, IMMHO!
1.10.2006 2:14pm
AppSocRes (mail):
Noah Klein:

A few points:

(1) The causal relation between registration and confiscation is, of course, impossible to prove. But gun rights people such as myself have noted that registration does two things: First it puts you on the slippery slope towards outright confiscation. Second, it makes confiscation easy when you reach that point. Other posters have given examples. I've had occassion to talk informally with some very significant people in the anti-gun movement (Not crazy, but fanatical. For example, one was a very senior appointee in the Clinton DOJ.) These people were quite open in private about admitting that they regarded registration as a necessary step towards the necessary and inevitable confiscation of ALL firearms.

(2) In California, the law was essentially used to have naive individuals reveal that they legally owned certain types of firearms. Later regulations promulgated under the law were used to make these types of firearms illegal by fiat. We can quibble about semantics, but in my book this is essentially a form of registration leading to confiscation.

(3) I find several problems with your interpretation of the 2nd Amendment. First, militia meant all persons in the country perceived as being capable of bearing arms. Congress clarified this with one of its very first pieces of legislation, The Militia Act. Militia did not refer to state-controlled bodies of armed men. It does not even really correspond the Anglo-Saxon fyrdung. Militia still has this broad meaning today although most people don't realize it. I suspect that John Adams or someone like him -- who had an almost neurotic fear of mob rule -- inserted the "well-regulated". It does not appear in most ofr the states' Bills of Rights. Even if your interpretation is correct, regulation of firearms as you define it would seem to directly contradict the "shall not be infringed" clause. The author of the Bill of Rights was wise enough that he would never have allowed a contradiction like this into one of the most important articles in the Bill of Rights: One that confirmed what was a fundamental right under the Common Law. After all, Coke argued that after the right to life and property, the right to keep and bear arms was one of the fundamental ancillary rights of Englishmen. The English courts confirmed this when they invalidated parts of the Test Acts that prevented Roman Catholics from arming themselves.
1.10.2006 2:22pm
Noah Klein (mail):
Neal:

Even law abiding people do stupid things. A criminal is a law abiding person until they become criminal. Your point that LEO's won't feel threatened by open carry weapons doesn't make sense. As I said, LEO's don't know that the person carrying a weapon is carrying it legally. They are naturally threatened in their job. Think about how much greater the percentage of law enforcement enforcement killed or injured than the greater population. This isn't just coindidence. This is not to say that they are paranoid and going to shoot everyone. Even though there have been instances of mistaken shootings in the past, LEOs are trained to deal with violent situations that honest civilians are not. They confront the criminals that civilians don't and thus have greater danger to them. Which is why as I said not only police chiefs, but also their unions which represent and they vote on oppose carry laws, at least in California. If you can demonstrate I am wrong, I will agree with you.

As to your point about the Revolution, law enforcement wasn't the same then as it is now. There weren't large police forces in cities, but much smaller police forces if any. Also a greater percentage of the public owns weapons today than during the Revolution. And weapons were very different. A LEO then does not confront the same threats as a LEO today. Thus I think they have a reason to feel more threatened.

Armed LEOs are better equipped to handle crime than armed civilians because they are trained to handle crime. Aside from weapons training, they get training in methods to deal with crime and issues of violence to an extent that civilians get. That's why we have LEOs.

The question of whether an armed public is safer than unarmed public is an issue that we all struggle with, but just I can't demonstrate to you that an unarmed law-abiding public is safer than armed public. You can't demonstrate the opposite. I will go with the people who do the job who say they prefer what they prefer. Please demonstrate to me that open carry laws have lead to less crime. I have never seen any such statistic.

I said that the issue with open carry laws was that most to majority of the public won't carry weapons. You said so, not everyone pays taxes. Firstly, this has nothing to with issue. Secondly, a majority of people do pay taxes. Answer question.

Criminals aren't the only people frightened by somebody carrying a gun. A lot of law-abiding people are frightened by people carrying a gun. Weapons are dangerous. Just look at accidental shootings. To think that they are not is foolish. Not everybody knows how to use weapons properly. I do not doubt your facility with your firearm. Yet, you can not believe that everybody who owns a firearm legally is completely responsible with it, do you? Why accidents happen then?

Finally, you never answered my point that the state has right to regulate the ownership and the carrying of weapons. I am sorry that you fearful of the state encroachment that you think you need to carry weapons on you all time, but that does not mean that the state can't reasonable regulate weapons. I am fearful of state oppression too. Yet in a society we give to state the legitimate use of force. That's for a state. If that reason, why would give up some our freedoms to them. Why would we create a state if not to give them the legitimate use of force?

Noah
1.10.2006 2:30pm
AppSocRes (mail):
Noah Klein: Two further points:

(1) Surveys seem to suggest that high level officials in police unions and police executives favor stricter gun control, but the rank and file and lower rank officers do not. This is a fairly standard pattern: Elites in this country and those who associate with them tend to adopt "fashionably liberal" attitudes towards certain shibboleth issues. The masses are much more "conservative" on issues like gun control, abortion, capital punishment, gay marriage, etc., etc., it's a social class thing.

(2) The 2nd Amendment has several purposes: It allows people to defend their most fundamental rights -- life and property -- in an effective way. It ensures that a true militia does exist to protect the community. (Study after study shows that gun owners and carriers have a much higher propensity than others to act as "Good Samaritans", tending to confirm this.) Finally, this militia can act as a final safeguard against government tyranny. Anti-gunners may believe that "It can't happen here," but I'd rather put my faith in the educated cynicism of the founding fathers, who saw that striving for unadulterated power was part of the makeup of all politicians. They saw the militia as a final bulwark against tyranny.
1.10.2006 2:37pm
P J Evans (mail):
If you're going to be citing the 2nd, remember that at the time it was enacted we were not planning to have a standing army. Thus the militia would have been like the National Guard and the Reserves today: drilling at regular intervals to keep their skills up, should a war break out.

I'm willing to let people have semi-auto and auto weapons, IF they join some kind of Guard or Reserve program. At the very least they should know how to use and store their weapons correctly.
1.10.2006 2:56pm
Noah Klein (mail):
Neal:

It is not a difference between the human nature of people in smaller communities and the human nature of people in big cities. It is the difference in the nature on the place. In smaller communities, people feel safer. That is why doors remain unlocked. That is why people do not have the same fear on the streets. Secondly, I thought that is smaller communities where people know each other better than cities where often who don't know your neighbors that well makes this a big difference. This has nothing to do with race. I live big city. I have lived small cities and towns. You can tell difference if you lived in big cities and if you lived in smaller cities. And whether its whitest city in America or blackest town in America. The town is safer than the city. That's why crime is higher in cities.

Secondly, your point that unions don't represent their members or that LEAA more accurately represents police is ridiculous. Firstly, I can join the LEAA. I saw the membership site. If I join, then it doesn't represent the police officers. I haven't seen the evidence as to the Kerry vs. Bush things with unions vs. their members. But most unions are in large cities. And smaller community police may be members of the same unions as the big city police. Either way, Bush hasn't made any statements, as far as I know, concerning carry laws, which are generally state matters. Unions have.

AppSocRes:

I took look at the Militia act and I believe you are wrong. Several times throughout the act it says the "militia of such state or states." This indicates that the state controls it. But for a more definitive demonstration of this. Let's look to the Revolutionary war, where the Jefferson was conducting the affairs of the Virginia militia. Militias were not just organizations of people who owned weapons and formed clubs. They were state organizations with standards set by the states. The officers confirmed by the states, just as officers in the military are confirmed by the federal government. This why they were to be called upon by the president to defend the nation. The government, at the time, could not compel somebody to take up arms. To this point, how do you think it would be possible for the president to compel a group of citizens to do something if the state did not have any control on them.

Finally, as to the point that my interpretation of the amendment is incorrect, it is not just my interpretation. It is the interpretation of the Supreme Court from the late 19th century. When first said that a community can regualte the carrying weapons. Laws that do not allow people to carry weapons in public are not new. The came out of the late 19th century where communities feared armed bandits and thus didn't allow people to carry weapons in their town. So if you want to change the state's ability to regulate weapons, you have to go to the Supreme Court and asked them to be changed.

Noah
1.10.2006 3:02pm
Noah Klein (mail):
AppSocRes:

As to the wording of the amendment, it might be important to note that there the "right to bear arms" is a clause which is broken off from "shall not be infringed." Thus it is possible to argue that they were trying to say the right of the militia to bear arms shall not be infringed. The court has said that individuals do have the right to bear arms, but that the state has the right to regulate. That is my position. I do not believe in registration, if the design is to lead to a ban on all weapons. I do believe in the state's right to ban some weapons.

Also as to your common law reading of the English right to bear arms. The Constitution overrides common law. No matter what common law interpretation would be, the wording of the amendment makes the common law interpretation moot.


Noah
1.10.2006 3:11pm
Mucus Maximus:
LEO's don't know that the person carrying a weapon is carrying it legally.

I think it's a pretty obvious assumption. A weapon carried openly will be legal. Illegal weapons will be carried concealed.

Armed LEOs are better equipped to handle crime than armed civilians because they are trained to handle crime.

No doubt this is true, but the fact remains that armed citizens "handle" a great many more burglaries, assaults, home invasions, etc. every year than the police do (i.e. armed citizens protect themselves when the police can't).

I have to admit, though, I lived for a long time in a state where open carry was legal and common, and even though I was certain that anyone carrying was doing so legally, it made me nervous. I just don't like being around armed strangers - you don't know if the guy is a psycho or what.
1.10.2006 3:11pm
eddie (mail):

Tyrannies cannot share "power" with "the People", else they are no longer tyrannies. An armed "people" has power. As long as a government is not a tyranny, firearms registration might be benign.

Unfortunately "power corrupts". In the US, firearms registration, even on the local level, have fomented tyrannies. The case of State sponsored racism in the South is an example. Additionally, such systems often lead to corruption, as in New York City, where only those with political influence can register firearms.


First I see absolutely no connection between registration of firearms and corruption of government. If the government is corrupt gun registration will be only one among many abuses experienced. And I do not see any civilized argument for the underlying premises, viz. that an armed citizenry will strike enough fear into the elected officials to stem any such corruption. In that case, who needs the Constitution in the first place?

A. I thought this was about privacy interests.
B. Did the Framers think that "a well armed militia" was necessary for individual's protection but for "the security of a free State." I just don't see where that comes from. And more importantly, the actual words of the Constitution do not include pure prohibitions from any regulation, like there are in the First Amendment, but only a ban on infringement. I don't see how registration infringes on anything.
C. And if we are going to argue from deductions as to why the Second Amendment is in the Constitution in the first place, a more logical conclusion would be that gun ownership has nothing to do with any privacy (or natural or "god" given) rights.

I am struck by two things:

Clearly their is a basis for privacy rights in the Constitution if it is to make sense.

But whenever guns come into the picture it's as if the actual words of the Framers don't count for anything. Even though our first amendment rights are circumscribed by the "yelling fire in a theater" type of proscription, gun fanatics see any boundary as unconstitutional.

And can anyone provide me with a reasoned and textual and precedential argument?
1.10.2006 3:16pm
Noah Klein (mail):
AppSocRes:

I am not trying to take guns away from people. As I said, I would a weapon if I thought it was a high priority for to carry one for my protection and if I could afford. Neither condition applies, but my attitude may change. I disagree with people eliminating guns, precisely because of the founders belief in protecting citizens from a oppresive government. Yet that does not mean that the state has no reasonable right to regulate.

As to your point about the difference between elites and rank and file, I have been a union member and I have talked to both national union leaders, chapter leaders, activist and non-activist members and have never found this dichotomy between rank-and-file beliefs and elte beliefs. I have been told of this dichotomy many times by conservatives that don't like unions and I have never seen any evidence to demonstrate this is the case.

Noah
1.10.2006 3:19pm
Mikeyes (mail):

It seems that like the bases for the arguments pro and con gun control, the reaction of LEOs is related to the culture in which it is observed. In the South and the West (excluding Atlanta and possibly other urban areas) seeing a person with an open weapon is par for the course, especially in hunting season. In fact in most rural states this is acceptable, especially if the LEO knows the family of the person with the gun.

Being frightened of guns is a result of lack of intimate contact (i.e. someone owns and uses) with firearms or the result of a high crime influence, even if by proxy (TV) such as seen in "The Big City."

So when you state that LEOs would be concerned if they saw an openly armed citizen, I am sure that in your context that is true. If the Williamson County, TN sheriff saw me with one in hunting season, he'd probably ask after my family; that's the cultural difference.

A related issue is the use of guns in self defense. I grant you that most pistol owners have little training in the use of weapons, but one of the universal aspects of carry laws is that the prospective owner has to take a gun safety course which usually involves meeting some criteria involving accuracy, applicable laws, and safety. In other words the only persons who can obtain the license will most likely be middle class educated individuals who are willing to fork out $150/year for the privilege. Only the most assiduious will actually carry the gun all the time. But even if they did, it would be for a legitimate reason. Police are not required to assure the safety of citizens, in fact they are not even obligated to answer emergency calls when a crime is being committed. They only enforce the laws on the scene in the oft chance that they are present when it occurs and that is more likely to occur in a traffic violation than a rape. So citizens have to have some means of protection (the most common sense one is to run, if possible) and carrying a weapon is one of those possibilities.

Obviously I am on the side of fewer controls but I don't have a problems with a slightly regulated society asking for some proof that the owner who carries will not shoot himself (the most likely gender) in the foot. The NRA is the foremost promoter of gun safety (provided you can get past all the politics) and this is a common sense position to take for gun owners in general. I see no problem with demanding someone who carries a gun have the same training as the rent-a-cop in the mall.

Most policemen never fire their weapon in the course of duty except to qualify. Most policemen could not hit the side of a barn from the inside with their pistols in a stress situation because they don't emphasize that skill in training. I'm not sure that the average LEO is more skilled than the rent-a-cop, but they are more aware of the consequences which is one thing that a citizen who carries should also be.

I think a good argument can be made that, assuming an absolute right to have a weapon is true, carrying a concealed weapon is a broad privilege in the sense of driving is a privilege. The assumption is that a citizen has the privielge unless there is reason to believe that they should not have that privilege. The burden of safety and obedience to the law that can be enforced by the state in the form of carry laws that require some training. It is done in every state in order to obtain a hunting license and the same is true for the various levels of driving licenses. This should not deny the right to have a firearm (although there may be a further economic barrier to the ownership of pistols) if done well. The big city culture in this scenario has influence, however, and that may be an impediment to those who want to be able to carry. Each state can have its own variation of the carry law that suits the citizens but the privilege should not discriminate and there will be some shifting of cultural norms on both sides. As a result, access to the broad privilege of concealed carry will vary somewhat from state to state.
1.10.2006 3:36pm
Noah Klein (mail):
Mikey:

I am with you. I have been around guns for part of my life at least. I have fired weapons and understand completely people's desire to carry a concealed weapon. What I was saying is that carrying an open weapon in city is different than carry a hunting rifle in a small town. That is what I was disagreeing with. A person who is hunter has to carry a weapon openly if their gonna hunt. It is thus ridiculous to restrict such weapons in a place where people know each better and they have a better sense of gun safety. And I think that this is why the state should have the authority to make such determinations, rather than to consider this a right that is so

I disagree with your assessment that a rent-a-cop and a LEO have the same experience and training to deal with crime. Specifically, because LEOs have to constantly retrain, while rent-a-cops don't. But thank you for demonstrating that there is a difference in people's attitudes towards guns in cities and smaller communities. I know that when I am in community where I know the people who carry weapons, I feel safer than when strangers carry weapons.

The NRA, I think, is the best organization on the issue of how to own and use a weapon responsibly. I know that when I went to the range. The accuracy standard was the NRA standard. Not only that though they hold classes on responsbile gun ownership. The train people on handle situations where they fear for their life. Also, I not completely sure about this, but I believe they advocate people to use trigger locks and safes to keep guns out of the hands of those who don't know how to use them. Also, they train in children in how to handle weapons, which is something I think is very good because it eliminates the chance of accidental shootings. I still disagree with the NRA's position on the 2nd amendment, but I commend their efforts to promote gun safety.

Noah
1.10.2006 3:55pm
Neal Lang (mail):
I was waiting for you to bring up the right to keep and bear arms under 2nd amendment. I have never understood why gun rights activists cannot seem to read the full amendment. The amendment reads "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." The word regulated is in the amendment. No other amendment has similar qualifying language.

"Well-regulated" in the "militia" context of the 2nd Amendment either means a "well-trained militia" or a "military under civilian control" - it modifies only the "militia" aspect", and not "the People's right".

The 2nd Amendment also is the only Amendment to use the expression "shall not be infringed". If the term "well-regulated" inferred "gun control laws" the concept "shall not be infringed" is totally meaningless. The Framers did not a habit of placing "meaningless verbage" in their enactments.

There are two schools of thought here. To wit:
The following are taken from the Oxford English Dictionary, and bracket in time the writing of the 2nd amendment:

1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."

1714: "The practice of all well-regulated courts of justice in the world."

1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."

1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."

1862: "It appeared to her well-regulated mind, like a clandestine proceeding."

1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."

The phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter. It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected. Establishing government oversight of the people's arms was not only not the intent in using the phrase in the 2nd amendment, it was precisely to render the government powerless to do so that the founders wrote it.From:
The meaning of the phrase "well-regulated" in the 2nd amendment

If you wanted to know all about the Big Bang, you'd ring up Carl Sagan, right? And if you wanted to know about desert warfare, the man to call would be Norman Schwartzkopf, no question about it. But who would you call if you wanted the top expert on American usage to tell you the meaning of the Second Amendment to the United States Constitution?

That was the question I asked A.C. Brocki, editorial coordinator of the Los Angeles Unified School District and formerly senior editor at Houghton Mifflin Publishers -- who himself had been recommended to me as the foremost expert on English usage in the Los Angeles school system. Mr. Brocki told me to get in touch with Roy Copperud, a retired professor of journalism at the University of Southern California and the author of American Usage and Style. The Consensus.

A little research lent support to Brocki's opinion of Professor Copperud's expertise.

Roy Copperud was a newspaper writer on major dailies for over three decades before embarking on a distinguished seventeen-year career teaching journalism at USC. Since 1952, Copperud has been writing a column dealing with the professional aspects of journalism for Editor and Publisher, a weekly magazine focusing on the journalism field.

He's on the usage panel of the American Heritage Dictionary, and Merriam Webster's Usage Dictionary frequently cites him as an expert. Copperud's fifth book on usage, American Usage and Style: The Consensus, has been in continuous print since 1981, and is the winner of the Association of American Publisher's Humanities Award.
That sounds like an expert to me.

After a brief telephone call to Professor Copperud in which I introduced myself but did not give him any indication of why I was interested, I sent the following letter:

"I am writing you to ask you for your professional opinion as an expert in English usage, to analyze the text of the Second Amendment to the United States Constitution, and extract the intent from the text.

"The text of the Second Amendment is, '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.'

"The debate over this amendment has been whether the first part of the sentence, 'A well-regulated Militia, being necessary to the security of a free State,' is a restrictive clause or a subordinate clause, with respect to the independent clause containing the subject of the sentence, 'the right of the people to keep and bear Arms, shall not be infringed.'

"I would request that your analysis of this sentence not take into consideration issues of political impact or public policy, but be restricted entirely to a linguistic analysis of its meaning and intent. Further, since your professional analysis will likely become part of litigation regarding the consequences of the Second Amendment, I ask that whatever analysis you make be a professional opinion that you would be willing to stand behind with your reputation, and even be willing to testify under oath to support, if necessary."

My letter framed several questions about the text of the Second Amendment, then concluded:

"I realize that I am asking you to take on a major responsibility and task with this letter. I am doing so because, as a citizen, I believe it is vitally important to extract the actual meaning of the Second Amendment. While I ask that your analysis not be affected by the political importance of its results, I ask that you do this because of that importance."

Questions and Answers

After several more letters and phone calls, in which we discussed terms for his doing such an analysis, but in which we never discussed either of our opinions regarding the Second Amendment, gun control, or any other political subject, Professor Copperud sent me the following analysis (into which I have it italicized my questions for the sake of clarity):

The words "A well-regulated militia, being necessary to the security of a free state," contrary to the interpretation cited in your letter of July 26, 1991, constitutes a present participle, rather than a clause. It is used as an adjective, modifying "militia," which is followed by the main clause of the sentence (subject "the right," verb "shall"). The right to keep and bear arms is asserted as essential for maintaining a militia.

In reply to your numbered questions:

(1) Can the sentence be interpreted to grant the right to keep and bear arms solely to "a well-regulated militia"?
The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people.

(2) Is "the right of the people to keep and bear arms" granted by the words of the Second Amendment, or does the Second Amendment assume a pre-existing right of the people to keep and bear arms, and merely state that such right "shall not be infringed"?

The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia.

(3) Is the right of the people to keep and bear arms conditioned upon whether or not a well-regulated militia, is, in fact, necessary to the security of a free State, and if that condition is not existing, is the statement "the right of the people to keep and bear Arms, shall not be infringed" null and void?

No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as a requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence.

(4) Does the clause 'A well-regulated Militia, being necessary to the security of a free State, " grant a right to the government to place conditions on the "right of the people to keep and bear arms, " or is such right deemed unconditional by the meaning of the entire sentence?

The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia.

(5) Which of the following does the phrase "well-regulated militia" mean: "well-equipped, " "well-organized, " "well-drilled, " "well-educated, " or "subject to regulations of a superior authority"?
The phrase means "subject to regulations of a superior authority;" this accords with the desire of the writers for civilian control over the military.

(6) If at all possible, I would ask you to take into account the changed meanings of words, or usage, since that sentence was written two-hundred years ago, but not take into account historical interpretations of the intents of the authors, unless those issues cannot be clearly separated.
To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: "Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be abridged."

(7) As a "scientific control" on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence:
"A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed."
My questions for the usage analysis of this sentence would be,
(A) Is the grammatical structure and usage of this sentence and the way the words modify each other identical to the Second Amendment's sentence?; and
(B) Could this sentence be interpreted to restrict "the right of the people to keep and read Books" only to "a well-educated electorate" -- for example, registered voters with a high-school diploma?
(A) Your "scientific control" sentence precisely parallels the amendment in grammatical structure.
(B) There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation.

Concluding Comment
Professor Copperud had only one additional comment, which he placed in his cover letter: "With well-known human curiosity, I made some speculative efforts to decide how the material might be used, but was unable to reach any conclusion."
So now we have been told by one of the top experts on American usage what many knew all along: the Constitution of the United States unconditionally protects the people's right to keep and bear arms, forbidding all governments formed under the Constitution from abridging that right.
As I write this, the attempted coup against constitutional government in the Soviet Union has failed, apparently because the will of the people in that part of the world to be free from capricious tyranny is stronger than the old guard's desire to maintain a monopoly on dictatorial power.
And here in the United States, elected lawmakers, judges, and appointed officials who are pledged to defend the Constitution of the United States ignore, marginalize, or prevaricate about the Second Amendment routinely. American citizens are put in American prisons for carrying arms, owning arms of forbidden sorts, or failing to satisfy bureaucratic requirements regarding the owning and carrying of firearms -- all of which is an abridgement of the unconditional right of the people to keep and bear arms, guaranteed by the Constitution. Even the American Civil Liberties Union (ACLU), staunch defender of the rest of the Bill of Rights, stands by and does nothing.
It seems it is up to those who believe in the right to keep and bear arms to preserve that right. No one else will. No one else can. Will we beg our elected representatives not to take away our rights, and continue regarding them as representing us if they do? Will we continue obeying judges who decide that the Second Amendment doesn't mean what it says it means but means whatever they say it means in their Orwellian doublespeak?
Or will we simply keep and bear the arms of our choice, as the Constitution of the United States promises us we can, and pledge that we will defend that promise with our lives, our fortunes, and our sacred honor? From: The Text of the Second Amendment

Of course, I am pleased you are curious about the "real" meaning of the words that comprise the text of the 2nd Amendment. I am a "strict constructionist" sort of guy myself, as well.
Thus I don't see how this can mean that the right is as absolute as other rights in the bill of rights or as you claim.

Really? Then why have it as part of "the People's rights" in the first place? I am afraid your argument is here totally illogical.
Thus I don't that the state has to "prove" that their "compelling state interest" is true, but just that this is their reasoning for the provision. I always thought that it was required for the opponents of the said provision to demonstrate that the "compelling state interest" is false. Perhaps I am reading the law wrong, but I don't think so since the courts have consistently backed the state's right to regulate guns since the late 19th century.

So you position that there is no "right of the People to keep and bear arms" to be infringed. Amazing! On just what do base this logical? The courts, perhaps? Such as the Supreme who under Chief Justice Taney opined that the African slave, Dred Scott, was less than a person, and therefore had no "right to life, liberty and the pursuit of happiness", much less the "right to keep and bear arms". Gun control and those who promote it, for the most part has always seemed pretty racist, IMMHO! Of course, Chief Justice Taney also opined that whites, in fact, have an unalienable right to be armed. Go figure!
Militias, of course, were the objects of the state and thus would be regulated by the state. I have thought that gun rights activists would have a point if they said that the federal government cannot regulate weapons, because militias were state-controlled, but I've never heard this argument made. It is my belief that just as the militias can be forced into the regular military forces, so thus the federal government gains the right to regulate weapons. Yet here you are saying that states can't regulate weapons. That just does not make sense to me.

As demonstrated, the "militia", "well-regulated" or otherwise, is not the purpose of the 2nd Amendment. Its purpose is to insure the "right of the people to keep and bear arms shall not be infringed" - the same as the 1st Amendment bars Congress from making any "law respecting an establishment of" a national "religion, or prohibiting the free exercise thereof" by the people, or "abridging the freedom of" political "speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Of course, such rights are quite meaningless to a tyrannical government, which retains the "power" to disarm "the People", by gun control. Hence the 2nd Amendment. Accordingly, neither Federal, State nor Local governments have the "power" to "infringe" on "the People's right to keep and bear arms".

Do you have any idea why the "shot heard 'round the World" was fired? Well, the Redcoats from Bosaton, having disarmed the citizens of that fair city were in the process of doing the same to the citizens of Concord and Lexington. The shot was fired in reaction to British "gun control"!
Finally, as to your point about the registration in California leading to a ban. That 1989 law that you cite WAS the ban. Any registration must have been part of the ban. Thus, it was not passed prior to the ban and therefore would not confirm your point that registration would inevitably lead to a ban, because the ban was already in place before the registration.

No, the 1989 law did not "ban" the possession of "so-called" "assault weapons" (a totally meaningless term) it merely provided for there "registration". To wit:
Existing law, the Roberti-Roos Assault Weapons Control Act of 1989, generally prohibits the sale, manufacture, distribution, transport, import, possession, or lending of assault weapons in California. Violations of the act are generally a felony; possession is punishable as a misdemeanor/felony (with an "exception" punishable as an infraction). The act contains a list that enumerates the designated semiautomatic rifles, pistols, and shotguns that are assault weapons and subject to the Act. (Penal Code sections 12280 and 12276)

The Roberti-Roos Act contains legislative intent language which concludes that it is not the intent of the Legislature in enacting Roberti-Roos ". . . to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities." (Penal Code section 12275.5)

The Attorney General is authorized to file a petition in Superior Court to declare that additional weapons are to be subject to the act's prohibitions on the basis that those weapons are essentially identical to weapons on the list of prohibited assault weapons. (Penal Code section 12276.5)

Persons who lawfully possessed an assault weapon prior to June 1, 1989, were allowed a period of time to register such weapons with the Department of Justice and to keep such weapons subject to specified restrictions. Any persons lawfully owning weapons subsequently added by the Superior Court to the prohibited category of weapons will be allowed a period of time to register and keep those weapons as well. (Penal Code section 12285)

Subsequently, legal owned firearms that were registered under the 1989 law, as amended, were banned and confiscated.
1.10.2006 4:01pm
Neal Lang (mail):
First I see absolutely no connection between registration of firearms and corruption of government.

Try to get a permit to own a firearm in NYC!
1.10.2006 4:04pm
Neal Lang (mail):
Yet that does not mean that the state has no reasonable right to regulate.

Governments and States do not have "rights" (only "powers" and "authorities"). Only people have "rights". "The People" institute governments to "secure these (life, liberty and the pursuit of happiness (property) rights" and as such merely allow only as much of their ("the People's") sovereignty as needed by government to function in that vain.

In Washington, DC your "reasonable right to regulate" is a total prohibition of private ownership of firearms - yet DC has the highest crime/murder rate in the US. Apparently the government of Washington, DC is failing to secure "life, liberty and pursuit of happiness (property)" for "the People" of the District. Go figure!
1.10.2006 4:15pm
luagha:
It should be mentioned that 'well-regulated' means 'capable of firing to the same point of aim' and 'disciplined, unlikely to break under fire, capable of following commands' when referring to a militia.
It has nothing to do with 'regulations' in terms of passing rules or laws that restrict behavior.
Look up the meaning of the word 'irregular' as in 'irregular troops' or 'Baker Street Irregulars' if you are a Sherlock Holmes fan. 'Irregular' troops are commonly indigenous peoples organized into guerilla forces and while they can be effective (like Holmes' Baker Street Irregulars composed mostly of street urchins) they do not have the discipline of 'well-regulated' troops.
1.10.2006 4:25pm
Neal Lang (mail):
I think a good argument can be made that, assuming an absolute right to have a weapon is true, carrying a concealed weapon is a broad privilege in the sense of driving is a privilege. The assumption is that a citizen has the privielge unless there is reason to believe that they should not have that privilege.

You mean in the sense that "political free speech, press, and assembly" are "privileges", or that the right to express one's religion faith is some sort of government granted "privilege"? Where did you get that idea from? Mein Kampf?

"Voting" is a "privilege" - "self-defense" (and its means) are a "right" which government cannot debarred "the People", unless someone is a convicted felon. As with all "rights", it is understood that they can only be exercised to do "good" and never "evil".
1.10.2006 4:27pm
luagha:
A 'well-regulated' militia just means 'a militia that knows how to shoot and take orders.' Everyone has to have guns (the right to keep and bear arms) in order to be capable for just such an eventuality.
1.10.2006 4:28pm
Noah Klein (mail):
Neal:

First, I am impressed that you went to such a length to determine what 18th century definition of "well-regulated." This must be an issue of singular importance to you. But I am sorry to say that your opinion and the opinion of a journalist, who is on the board of several dictionaries does not have weight on the issue of law. Guess whose does? Yeah, that's right its Supreme Court. The Supreme Court determined in 1886 in Presser v. Illinois and subsequent cases in the 1890's that the second amendment does not prevent the state from making laws concerning gun ownership and formation of militaristic societies outside the scope of the government.

Then after that in 1942, the court decided in Cases v. United States that "Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well-regulated militia."

People have the right to keep and bear arms. I am saying that they don't nor am I saying that they shouldn't. I am two things 1) I think this right should be regulated. I formed this opinion through examination of the effects of gun violence and how prevent it. I also formed this opinion on a reading of the constitution that says the purpose behind this amendment is to allow for a well-regulated militia. People of the state should allowed to defend themselves against what they feel is an oppressive federal government. The word "regulated" may be modifying "militia," but in deference to the authority you cite the purpose behind this amendment was to ensure not that guns wouldn't be regulated but that people would have adequate defense against an oppressive government.

I am also stating 2) what the Supreme Court says. I don't agree with the Supreme Court, but when I do I do. I have given the cases above where they determination. And they have a better understanding of the law than both of us. But it obvious what their opinion is and what law of the land is. The NRA in 1990's tried to overrule the law passed by several to ban certain weapons. These laws were upheld. They upheld, because it was determined that these were reasonable regulations of weaponry.

Finally, when you try to insult calling me a racist and so on, you hurt your argument not mine. How do you know I'm not black or hispanic? As a matter of fact, some of the strongest gun control advocates are black. Why do you think D.C. banned weapons? It wasn't Congress that did it. They would never go that far. The D.C. city council did it. The D.C. government that was elected by the people of the District. And to you point that the city council is trying to kill their constituents because they wanted to ban weapons, please do not make specious arguments like that. I lived in D.C. and believe they like their gun ban. The reasons behind D.C. crime rate has lot more to do then the banning of weapons.


Noah
1.10.2006 4:52pm
luagha:
Another thing that should commonly be mentioned in any Second Amendment discussion is that 'A well-regulated militia, being necessary to the security of a free state,' is the dependent clause in the sentence. It explains, but does not limit, the clause which follows - 'the right of the people to keep and bear arms, shall not be infringed.'
1.10.2006 4:57pm
Mikeyes (mail):
I think I answered the question of the use of the term "privilege" (and this is from a non-laywer, so bear with me) using the analogy of driving or hunting. The states have the right to restrict the possession of fully automatic weapons, they have the right to restrict the driving privileges of commercial drivers (or at least place a larger burden of proof for safety and knowledge of the laws) and they can restrict your right to hunt on land not your own if you don't take a safety course. But, at least with the latter two, it is assumed that you have the privilege until there is proof that you don't such as not passing the test or DWI depending on the state. What I am stating is that there is no right to carry a weapon concealed but that there is a privilege that should be assumed (like driving and hunting), controlled by the state but given unless there is a compelling reason not to do so. This does not prevent you from having possesion of firearms (including fully automatic weapons if you pay the taxes and your state allows them) or using them in your defense even in the case of an illegal carry (although state laws may disagree with me, but I am alluding to extraordinary circumstances.)

On the other hand, the Mein Kampf reference is "annoying", even if it is in the First Amendment context
1.10.2006 5:08pm
Noah Klein (mail):
Neal:

Your constant attacks on me, as if I am stating a position that tyrannical or racist is specious, stupid and wrong. I believe in the right that you believe. I don't believe it is absolute and guess what I'm not alone. We have this court that is the final review on the interpretation of the Constitution. I'm not sure if you heard of it. Its called the Supreme Court. All you know about me is my name and the positions I've stated on this blog. If you look at other threads, you'll notice I'm not one for tyrannical government.

Please stop the ad hominem and the ridiculous arguments. People disagree on the Constitution without be Hitler, Taney or any other figure of international and national evil. I am not saying that your anarchist. I am not saying that you're, but instead you are insulting me calling me a racist and a Nazi. Stop.

Luagha:

The words "well-regulated" does not mean just that they can shot straight or that are well disciplined. Regulate means:
To control or direct according to rule, principle, or law.
To adjust to a particular specification or requirement: regulate temperature.
To adjust (a mechanism) for accurate and proper functioning.
To put or maintain in order: regulate one's eating habits.
Just as the Congress has the right to regulate the army and navy states have the right to regulate militia. The Congress provided rules much more greater than to provide discipline in the Articles of War and UCMJ. If regulate did not mean regulate what would be the purpose behind their stating. Why would they put the words in if they had no effect?

Noah
1.10.2006 5:29pm
Brett Bellmore (mail):
"Annoying" would be the habit of certain people, of insisting on using the term "priviiege" to refer to something the Bill of Rights declares to be a right.
1.10.2006 5:43pm
Noah Klein (mail):
Brett:

The first amendment, which unlike the second contains on qualifying language, is not absolute. The people retain a right to keep and bear arms. That though is not absolute nor is binding on the states. Remember, we're talking about the federal constitution. Arguing positions is one thing. Tossing ad hominems at a person is another. I have thoroughly exhausted by people's inability to understand my positions. I have yet to attack them as fascists or anything like it.

Noah
1.10.2006 5:47pm
luagha:
Yes, that is why I said what the common usage was in referring to a militia. A well-regulated temperature means that it works closely in alignment with setting the thermostat. A well-regulated eating establishment follows all necessary health codes, and a well-regulated militia is disciplined, fires on target, and follows commands.
Note also: "A well-regulated militia, being necessary to the security of a free state," The well-regulated militia is 'necessary'. It is not 'limited for the security of a free state' or 'controlled for the security of a free state'; it is 'necessary to.'
The effect and meaning of these words seems clear to me and that the more one looks at them the more it becomes clear that the 'well-regulated' meaning must be the meaning to which I refer.
They are explaining the purpose behind the remaining portion of the sentence.

And - I jest - if you ask why certain words are there if they don't mean anything, then why are those extra commas there? :)
1.10.2006 5:54pm
luagha:
I should mention that I do understand Noah's positions. I just disagree with them. I am perfectly capable of disagreeing with the Supreme Court, even while acknowledging that their current ruling does and must stand. Most of us here could likely come up with a Supreme court decision that we consider incorrect, and one that would be taught differently in any decent 9th grade civics class.
(Of course, decent 9th grade civics classes are also few and far between these days."
1.10.2006 6:01pm
Noah Klein (mail):
Luagha:

One definition is as you describe is synomous with having a disciplined militia. Another definition is that regulate means to provide the rules for, as in I regulate my child's activities or the government regulates industry. You are telling you are and I am in thinking it is the second definition rather first. You say that the purpose behind the words "A well-regulated militia being necessary to the security of a free state" was just to describe the reasons behind the declaration of the right to keep and bear arms. Thus the first words of the amendment are meant to be a whereas clause. Yet, all the amendments were also considered necessary to having a free state. You can't free state if can't speak freely, if the press restricted, if you punished for you religious beliefs, if you are secure in your person or from unreasonable prosecution and so on. None of these amendments have a "whereas clause." This is indicates that this clause was meant to have the force of law. Every word in the constitution, except the preamble which by its definition is a whereas clause, is read to have some force of law.

Noah
1.10.2006 6:10pm
luagha:
I notice that you switched the word from 'being necessary to the security of a free state' to 'having a free state' in your formulation. It seems to me that you are stating an assumption - that all of the amendments are necessary to a free state. I don't see where you get that from 'The Bill Of Rights.' I thought that they were a listing of specifically enumerated rights that specifically did not limit other rights not listed.

(If you want to talk about the Supreme Court and 'why were words put into the document if they don't mean anything' we could get into Amendment 9 and 10, but that might be depressing.)
1.10.2006 6:19pm
Wince and Nod (mail) (www):
Neal,

I agree with your position. The Mein Kampf reference violates the rules below, however. Please don't do that again.

The example of Germany is instructive here as long as we remember that no one here is advocating a position in any way similar to that of the Nazis. Don't browbeat people with it, okay?

Noah,

As regards racism and gun control, it is an important historical fact that the first gun control laws were all rascist in nature. African Americans and native Americans both were discriminated against, sometimes directly in the text of the law, sometimes through unequal enforcement. This discrimination continued till well after the Civil War. I have heard people call the laws against crack cocaine racist when contrasted to the laws about the regular powder. I would not be surprised if gun control laws, including concealed carry laws were still unequally enforced. OTOH, given the the recent evidence that police are not in fact profiling, I would not be surprised to discover that gun control laws were now being enforced equally.

Guns were important during the Civil Rights Era in protecting African Americans against Klan violence - even when the Klan was supported by the local government.

In any event, I am glad you support people having guns. I believe that the Second Amendment clearly defines a right for people to own and carry firearms. None of our right under the Constitution are absolute, except abortion, apparently, since there seem to be no restrictions allowed prohibiting a woman to get an abortion for any reason. I'm not sure why abortion has that status. In any event, the courts have not been aggressive in protecting our rights under the Second Amendment. They need to strike down some laws to protect it, just as they have struck down laws to protect every other Amendment but the Third (whom no one seems eager to violate). The DC gun ban is so draconian that it must be unconstitutional. The Second Amendment may not be an absolute right, but it has to protect something.

Yours,
Wince
1.10.2006 6:21pm
Noah Klein (mail):
Luagha:

If I changed the words, it was a mistake in not looking at the words again before I wrote what I wrote. I am sorry about that. Also I agree with your regret as to the failure to enforce the 9th amendment. But I'm a liberal and while I respect the 10th amendment, I believe in an expansive reading of the text of the constitution to fit the conditions of our times. I don't want to get into discussion of broad vs. narrow construction of the constitution with that. I just wanted to show you where I am coming.

You are right that this is a enumeration of rights people have regardless of whether this government exists or doesn't. Yet a free government needs its citizens to keep all their freedoms, except those that are necessary to the protection of the state and its citizens. This where I think (and am backed up by the court) where the founders tried to strike a balance with the second amendment.

If we think about the various reasons that the Constitutional Convention came about, we must include the inability of the Confederation Congress to borrow money, tax people or states, provide for defense or a coherent foreing policy, pay debts and the alarminig events like Shays Rebellion. Ignoring the other issues which are not germane to this discussion, Shays Rebellion truly frightened many of the leaders of the Revolutionary generation, like Madison, Washington, Adams and others. Some like Jefferson, Paine, the other Adams felt that this was merely a democratic expression, but the Washington and his ilk were truly afraid of mob violence. But they knew government could be oppressive. Thus they wanted a balance between allowing mob violence, respecting people's inherent rights and preserving a free society from an oppressive government. Thus Madison wrote the 2nd Amendment. This is where I get my reasoning behind the amendment. We may disagree, but I think that the founders concerns about firearms and some the same concerns people who are for gun control have today and thus why they support it.

Wince:

Ignoring the racist intentions behind the first gun control laws would be wrong on many levels, not just factually. Also, I believe Malcolm X was right that African-Americans should own weapons to defend themselves from constant violence. I also saw this movie (based on historical evidence) called "Deacons for Defense" with Forrest Whittaker. It dramatizes the violence against African-Americans and their efforts to defends themselves in I believe Mississippi. I am not sure, but it wouldn't suprise me if it were true that gun control laws are enforced unfairly. These facts though I don't think are reasons to eliminate gun control laws, but instead reasons to better enforce them. Laws are enforced by people and people are flawed. Some of these laws may have gone to far. I don't know. I always thought that the majority of a society should determine that with the proviso that the federal government could not ban all weapons.

Noah
1.10.2006 6:55pm
Wince and Nod (mail) (www):
Noah,

Yes, the Deacons for Defense were an example from the Civil Rights Era. Listen to this description of the DC gun ban:
For starters, no handgun can be registered in D.C. Even those pistols registered prior to the District's 1976 ban cannot be carried from room to room in the home without a license. Moreover, all firearms in the home, including rifles and shotguns, must be unloaded and either disassembled or bound by a trigger lock. In effect, no one in the District can possess a functional firearm in his or her own residence. The law applies not just to "unfit" persons like felons, minors, or the mentally incompetent, but across-the-board to ordinary, honest, responsible citizens.
How exactly can such a draconian ban be harmonized with the plain language of the Second Amendment?

Yours,
Wince
1.10.2006 7:08pm
Wince and Nod (mail) (www):
Oops. Forgot the link.
1.10.2006 7:09pm
Noah Klein (mail):
Wince:

I am not advocated going to the extreme of the D.C. gun law. I know that D.C. residents do like the law that they have on guns, but it is not my position. But purely as an intellectual debate, I can justify it like this: The second amendment applies to the federal government and not to the states or localities.

There is one problem with this. Congress, under the constitution, is supposed to jurisdiction over D.C. Thus even though this is local law. Indirectly, it may be considered a federal law, because the city council was set up under federal law. I don't know if the Supreme Court or the Circuit Court of D.C. or the District Court of D.C. has ever heard any suit on this issue. I would not be surprised if they had not because while this does seem like a extreme law to all who acknowledge that there is a right to keep and bear arms the citizens of D.C. are very liberal and do not have any problem with this.

Noah
1.10.2006 7:20pm
Noah Klein (mail):
Luagha:

I re-read your post of 5:54 and noticed that you used the words "common usage." I did not see this the first time. Yet your example with regards to restaurants demonstrates my point. Restaurants have health which they must follow. They can't serve food that is prepared in a manner that is a detriment to public health. Just as the gun industry cannot manufacture and sell certain weapons in some states or localities that are considered by those states to be a detriment to public safety. Now this provision goes beyond this to say that individuals can't own active weapons that states consider a detriment to public safety. This though is similiar to an obscenity law with regards to the first amendment. Once again, I admit that this is more restrictive than the obscenity law is, but I think that is due to the qualifying language in the document and the nature of the thing being regulated.

Noah
1.10.2006 7:28pm
Neal Lang (mail):
First, I am impressed that you went to such a length to determine what 18th century definition of "well-regulated." This must be an issue of singular importance to you.

Only if you are concerned about the "original intent" of the Framers". Obviously, if you could care less about the true meaning of the 2nd Amendment the definition of "well-regulated" that was used by its drafters, would be of no import to you.
Guess whose does? Yeah, that's right its Supreme Court. The Supreme Court determined in 1886 in Presser v. Illinois and subsequent cases in the 1890's that the second amendment does not prevent the state from making laws concerning gun ownership and formation of militaristic societies outside the scope of the government.

In Dred Scott v. Sandford, the Taney Court in 1857 found that the freed African Slave, Dred Scott, was somehow less than a person capable of being an American citizen (despite what the State of Illinois might think), to wit:
A. Dred Scott

Dred Scott may be the best-known case decided by the antebellum Supreme Court. Even persons who think that "Marbury vs. Madison" was an important boxing match may have some passing familiarity with "Dred Scott." The Dred Scott case is sometimes found among Standard Model articles on the Second Amendment,(285) but is entirely absent from the anti-individual right articles.

Chief Justice Taney's majority opinion held that a free black could not be an American citizen. To support this conclusion, Justice Taney enumerated the parade of horribles which would follow from American citizenship for blacks: they would have the right to "the full liberty of speech in public and private upon all subjects upon which its [a state's] own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."(286)

Another part of the opinion explained that Congress had no power to infringe upon civil liberty (including, from the Taney Court's viewpoint, the right to possess property in the form of slaves) in the territories:

[N]o one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances. . . .

Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding . . . .(287)


The above statement, which treated the right to arms as one of several enumerated constitutional rights belonging to individuals, was widely quoted during the debates over slavery and popular sovereignty.(288)

Dred Scott, while never formally overruled, is not good law today, having been deliberately invalidated by section one of the Fourteenth Amendment. The purpose in discussing Dred Scott is not to cite it as binding precedent, but to acknowledge it as one of several nineteenth-century Supreme Court cases involving the right to arms--all of which, as we shall see, treat the Second Amendment as an individual right.

Notes:
285. 284. See, e.g., Kates, Handgun Prohibition, supra note 1, at 246; Kopel &Little, supra note 1, at 526.

286. 285. Scott v. Sanford, 60 U.S. (19 How.) 393, 417 (1856). Of course, Chief Justice Taney did not explicitly say "and the right to keep and bear arms wherever they went, which is guaranteed by the Second Amendment," any more than he explicitly said "the right to hold public meetings upon political affairs, which is guaranteed by the First Amendment."

287. 286. Id. at 450.

288. 287. See, e.g., Stephen Douglas, The Dividing Line Between Federal and Local Authority: Popular Sovereignty in the Territories, Harper's, Sept. 1859, at 519, 530.

One other slavery case involving a Supreme Court Justice should be mentioned. In 1833, two months after Barron v. Baltimore was decided, Supreme Court Justice Henry Baldwin, while circuit-riding, listed the Second Amendment among the individual rights protected by the U.S. Constitution, and implied that the Second Amendment was binding on the states. See Johnson v. Tompkins, 13 F. Cas. 840 (C.C.E.D. Pa. 1833) (No. 7416). The case of Johnson v. Tompkins arose out of a slave-owner's lawsuit against a Pennsylvania constable who had arrested the slave-owner for kidnapping and breach of the peace while the slave-owner was attempting to recapture an alleged runaway slave. After the slave-owner, Johnson, was acquitted of the criminal charges, he sued Tompkins and the others who had arrested him and had interfered with his attempt to recapture his slave property. (Justice Baldwin instructed the jury that although slavery's existence "is abhorrent to all our ideas of natural right and justice," the jury must respect the legal status of slavery. Id. at 843.)

As part of the jury charge, Justice Baldwin listed some of the constitutional rights possessed by the plaintiff, Johnson. Justice Baldwin listed the Pennsylvania Constitution's right to acquire, possess, and protect property; the Pennsylvania Constitution's bar on deprivation of property except "by the judgement of his peers, or the law of the land"; and the Pennsylvania Constitution's "right of citizens to bear arms in defence of themselves and the state." Id. at 850. Justice Baldwin then began listing Johnson's rights under the U.S. Constitution--the Article IV guarantee that "the citizens of each state shall be entitled to the privileges and immunities of citizens in the several states"; the prohibition on state impairment of the obligations of contract--and then stated that "[t]he second amendment provides, 'that the right of the people to keep and bear arms shall not be infringed.'" Id. The rights litany concluded with the ban on deprivation of property without due process. See id. Additionally, Justice Baldwin explained the U.S. Constitution's fugitive slave clause. See id. at 850-51.

Justice Baldwin's list of rights made it clear that each of the rights, including the Second Amendment right to arms, was a personal right, since the right belonged to the plaintiff. Since Johnson's lawsuit was against an employee of a subdivision of the Pennsylvania state government, Justice Baldwin's listing of the Second Amendment implied that Justice Baldwin considered the Second Amendment to be a restriction on state actions against individuals.

In 1837, Justice Baldwin wrote A General View of the Origin and Nature of the Constitution of the United States. See Henry Baldwin, A General View of the Origin and Nature of the Constitution of the United States (N.Y., Da Capo Press 1970) (1837). The book focused on the political status of the states and the people, examining the transitions from colony to independent states to confederated states to parties to the Constitutional compact. The book did not address the Second Amendment or the militia.

The Supremes also sided with the Klu Klux Klan and local racists government in United States v. Cruikshank in 1872, which also demonstrates how "racists" used "gun control laws" to deny other "civil rights" to the freed blacks in South and immigrants in the North. Interestingly, the Supremes in Cruikshank thought that neither the 1st nor the 2nd Amendments could be applied to the States, as the blacks in question "rights of assembly" were also okay, to wit:
B. Cruikshank

Under the authority of the new civil rights laws, federal prosecutors brought many cases against white defendants who, alone or in groups, had violated the civil rights of freedmen. These defendants were frequently charged with violating the Second Amendment rights of freedmen by taking their firearms.(360)

Eventually, the federal prosecutions made their way to the Supreme Court in United States v. Cruikshank.(361) Cruikshank involved the aftermath of the 1872 elections in Louisiana. Following the elections, two separate governments--one Unionist and one racist--declared themselves the winner and the official government of the state. In the town of Colfax, armed blacks occupied the courthouse and the surrounding district to assert the legitimacy of their side's control of the local government. Atrocities had been committed on both sides; a rioting band of white farmers attacked the courthouse, burned it to the ground, and murdered blacks who tried to escape the flames. Klansman William Cruikshank and other leaders of the riot were tried in federal district court for violating federal civil rights laws. By the terms of the Enforcement Acts,(362) the trial court found Cruikshank guilty of conspiring to deprive the blacks of their Constitutional rights, including the right to assemble peaceably and the right to bear arms.(363)

The Cruikshank case forced the United States Supreme Court to squarely address the issue of whether the enumerated provisions of the Bill of Rights were made enforceable against the states by the Fourteenth Amendment and the Congressional laws enacted pursuant to the Amendment. The issue had arisen a few years before, in a federal prosecution of South Carolina Klansmen for conspiring to deprive blacks of their arms and to destroy the black militias. There, the lower federal courts had held that the Fourteenth Amendment did not incorporate the Bill of Rights. The Supreme Court evaded review on procedural grounds.(364)

In Cruikshank, the Supreme Court held the Enforcement Acts unconstitutional. The Fourteenth Amendment, the Court acknowledged, did give Congress the power to prevent interference with rights granted by the Constitution. However, the Court held that the right to assemble and the right to arms were not rights granted or created by the Constitution. The first part of the opinion explained:

The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It "derives its source," to use the language of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 211, "from those laws whose authority is acknowledged by civilized man throughout the world." It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection.(365)

The Court further explained that the right to arms is a fundamental human right:

The right . . . of "bearing arms for a lawful purpose" . . . is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this . . . means no more than that it shall not be infringed by Congress . . . leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called . . . the "powers which relate to merely municipal legislation . . . ."(366)

Cruikshank thus asserted that the Second Amendment protected, but did not create, the individual's right to bear arms; the right instead derives from natural law. The Court's position that people must look to local governments "for their protection against any violation by their fellow-citizens of the rights" that the Second Amendment recognizes is comprehensible only under the individual rights view. If individuals have a right to own a gun, then individuals can ask local governments to protect them against "fellow-citizens" who attempt to disarm them. In contrast, if the Second Amendment right belongs to the state governments as protection against federal interference, then mere "fellow-citizens" could never infringe that right by disarming mere individuals.

The Cruikshank decision completed the work begun by The Slaughter-House Cases, ruining the Fourteenth Amendment as a check on most state abuses of the Bill of Rights until the 1920s.(367)

Although no longer good law, the case clearly approaches the Second Amendment from an "individual right" perspective.

360. 359. See Kermit L. Hall, Political Power and Constitutional Legitimacy: The South Carolina Ku Klux Klan Trials, 1871-1872, 33 Emory L.J. 921 (1984).

361. 360. 92 U.S. 542 (1876).

362. 361. See 16 Stat. 140 § 6 (1870); see also 18 U.S.C. §§ 241-242 (1994).

That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another . . . or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States . . . .

Id.

363. 362. See George C. Rable, But There Was No Peace: The Role of Violence in the Politics of Reconstruction 125-29 (1984).

364. 363. See United States v. Avery, 80 U.S. (13 Wall.) 251 (1871); United States v. Crosby, 25 F. Cas. 701, 701-05 (D.S.C. 1871) (No. 14,893). The cases are discussed in Hall, supra note 359, at 921.

365. 364. Cruikshank, 92 U.S. at 551 (emphasis added). A subtext of the opinion was that the Reconstruction government of Louisiana had encouraged blacks to assemble armed, knowing that disturbances would result; hence, it was the state government's responsibility (not the Supreme Court's) to protect blacks from disarmament and interference with their right to assemble.

366. 365. Id. at 553 (quoting New York v. Miln, 36 U.S. (11 Pet.) 125, 139 (1837)); cf. Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, 92 (1822) ("The right [to arms in the Kentucky Constitution] existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms.").

367. 366. Robert Palmer writes that "United States v. Cruikshank accomplished the nullification of the fourteenth amendment that scholars traditionally attribute to Slaughter-House." Robert C. Palmer, The Parameters of Constitutional Reconstruction: Slaughter-House, Cruikshank, and the Fourteenth Amendment, 1984 U. Ill. L. Rev. 739, 762. Palmer argues that Justice Waite's opinion in Cruikshank misread Slaughter-House, and wrongly assumed that state and federal privileges and immunities were absolutely distinct. See id.

Cruikshank was overruled by implication by DeJonge v. Oregon, 299 U.S. 353 (1937), which held, directly contrary to Cruikshank, that the right to assemble peaceably was guaranteed by the Fourteenth Amendment. Because Cruikshank had applied identical reasoning to find that the First Amendment (assembly) and Second Amendment (arms) were not protected by the Fourteenth Amendment, Cruikshank may not be good law today with regard to the Fourteenth Amendment's protection of the right to bear arms.

One other Reconstruction Supreme Court case touched on the right to arms. Cummings v. Missouri was an 1866 case growing out of the 1865 Missouri Constitution, which imposed numerous civil disabilities--prohibitions on engaging in various professions, holding certain types of property, and holding government office--on persons who had supported the Confederate cause. Cummings v. Missouri, 71 U.S. 277 (1866). The State of Missouri defended the disabilities on the grounds that deprivations of civil rights were not punishment. The Supreme Court disagreed. Justice Stephen Field's majority opinion observed that:

In France, deprivation or suspension of civil rights, or of some of them, and among these is the right of voting, of eligibility to office, of taking part in family councils, of being guardian or trustee, of bearing arms, and of teaching or being employed in a school or seminary of learning, are punishments prescribed by her code.

Id. at 321. The Court then explained that a deprivation of civil rights in the United States must also be considered a form of punishment:

The theory upon which our institutions rest is, that all men have certain inalienable rights--that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to every one, and that in protection of these rights all are equal before the law. And deprivation or suspension of these rights for past conduct is punishment, and can in no otherwise be defined.

Id. at 321-22.

The Court struck down the relevant provisions of the Missouri Constitution as a bill of attainder, an ex post facto law, and a violation of due process. (The Missouri deprivations did not prohibit the ownership or carrying of arms in any way; instead the 1865 Missouri Constitution affirmed the right of the people of Missouri "to bear arms in defence of themselves and of the lawful authority of the State cannot be questioned." Mo. Const. art. I, § 8 (1865). Thus, there was no place for the Supreme Court to consider the Second Amendment as an objection to the Missouri civil rights deprivations.) The Court emphasized that the ex-confederates could be punished for participation in the rebellion according to laws which existed at the time of the rebellion, but that additional punishments could be not added after the fact. Id. at 327-29.

The Cummings principles remain valid law. For example, in 1965, the Supreme Court relied on Cummings to overturn a law which barred ex-Communists from becoming officers of labor unions. United States v. Brown, 381 U.S. 437, 447-48 (1965) (holding that a deprivation of civil rights is punishment; the Bill of Attainder clause is to be broadly construed).

Cummings raises interesting issues about modern gun control laws. The Supreme Court in Cummings labeled "bearing arms" a civil right, and insisted that a citizen may be deprived of civil rights only as the result of a conviction for a crime when the penalty for the crime was established before, rather than after, the commission of the crime. In the modern United States, in contrast, it is common for federal and state laws to impose additional punishments for a crime, long after the defendant has pled guilty and served his punishment. For example, a person might have pled guilty to federal tax evasion in 1954 and served a prison term or paid a fine. The punishment for the tax crime, as of 1954, did not include loss of the right to keep and bear arms. But in the Gun Control Act of 1968, the Congress banned the possession of firearms by anyone with a felony conviction--even felony convictions incurred long before 1968. 18 U.S.C. § 922(g)(1). The ban likewise extends retroactively to persons in various categories unrelated to crime, such as being dishonorably discharged from the military. Id. § 922(g)(6). Similarly, in 1994, Congress banned firearms possession by anyone with a misdemeanor conviction for domestic violence, no matter how long before 1994 the conviction occurred. Id. § 922(g)(9). The courts have upheld these retroactive prohibitions on the grounds that they do not impose any retroactive punishment; no one will be sent to prison unless they possess a firearm after the effective date of the law. See, e.g., United States v. Brady, 26 F.3d 282, 290-91 (2d Cir. 1994). Thus, the modern courts adopt the position of the Missouri Attorney General (that deprivation of civil rights is not punishment; only prison, executions, and fines are punishment), and reject the position of the United States Supreme Court. A person dishonorably discharged from the standing army because of his objections to the Vietnam War is deprived of the constitutional protections which were accorded even to persons who had borne arms in rebellion against the federal army in the nineteenth century. It is not always true that modern courts protect civil rights and enforce the Constitution with more zeal than did their nineteenth century predecessors.

Of course, your cite - "Presser" - is interesting, considering the fact that you are professed former union membership, as it involved immigrant union workers rights. In Presser v. Illinois (1886) the
C. Presser

Labor and anti-labor violence, both in urban centers and in rural coal mines, became quite frequent in the latter part of the nineteenth century.(368) The major nineteenth century Supreme Court interpretation of the Second Amendment involved a group of German immigrants--Lehr und Wehr Verein(369)--marching in military exercise in public. The case grew out of an Illinois arms control measure enacted in response to the labor uprisings of the late 1870s. State militias and the federal army had brutally suppressed peaceful strikes. When workers began forming self-defense organizations such as Lehr und Wehr Verein, the state government outlawed private militias.(370)

A member of Lehr und Wehr Verein took the case to the United States Supreme Court, and lost. First, the unanimous Court stated that the Illinois laws "do not infringe the right of the people to keep and bear arms."(371) Thus, the right to own and carry guns does not include the right to carry guns in public as part of a large group on military parade.(372) Further, as Cruikshank had noted, the Second Amendment, under the Slaughter-House rationale, "is a limitation only upon the power of Congress and the National government, and not upon that of the States."(373)

In dictum, the Court stated that even though the Second Amendment did not limit state gun control, there was still a constitutional limit on state controls. The states could not disarm the public so as to deprive the federal government of its militia:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States . . . and, in view of this prerogative of the general government . . . the States cannot, even laying the constitutional provision in question [the Second Amendment] out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect.(374)

The militia thus includes "all citizens capable of bearing arms."(375)

Anti-individualist authors who discuss Cruikshank and Presser tend to emphasize the nonapplicability of the Second Amendment to the states, while gliding over the cases' clear understanding of an individual right to arms. Most Standard Model authors acknowledge Cruikshank and Presser as green lights for state gun control. The Standard Modelers argue, however, that Cruikshank and Presser should be repudiated in light of modern Fourteenth Amendment doctrine,(376) or that the two cases already have been repudiated by dicta in three modern cases listing "the right to keep and bear arms" as among the "full scope of the liberty" protected against state infringement by the Fourteenth Amendment.(377) Stephen Halbrook, one of the most important Standard Model authors, argues that the state gun control passages in Cruikshank and Presser are mere dicta; the holding of Cruikshank was that the Second Amendment could not be infringed by nongovernment actors, and the holding of Presser was that the Second Amendment was not infringed by a ban on armed parades.(378)

368. 367. See, e.g., Jeremy Brecher, Strike! (1997); Robert W. Bruce, 1877: Year of Violence (1989); Priscilla Long, Where the Sun Never Shines: A History of America's Bloody Coal Industry (1989); Philip Taft &Philip Ross, American Labor Violence: Its Causes, Character, and Outcome, in Violence in America: Historical and Comparative Perspectives 281-395 (Hugh Davis Graham &Ted Robert Gurr eds., 1969). Another historian writes:

One of the major themes in American urban history since the 1850s has been the struggle of municipal authorities and their business-class allies to gain a monopoly on the use of violence. The problem was not that the elected officials lacked a monopoly on the use of legally authorized violence; rather, they struggled to convince turbulent portions of the populace that all other violence was illegitimate.

Michael Feldberg, The Crowd in Philadelphia History: A Comparative Perspective, in Riot, Rout, and Tumult: Readings in American Social and Political Violence 142 (Roger Lane &John J. Turner, Jr., eds., 1978).

369. 368. This title translates to "teaching and defense union." Cramer, supra note 1, at 130.

370. 369. See Paul Avrich, The Haymarket Tragedy 45-46 (1984).

371. 370. Presser v. Illinois, 116 U.S. 252, 265 (1886).

372. 371. The Court's opinion was consistent with established common law limits on the right to arms which prohibited large, terrifying assemblies of armed men. See 1 Hawkins, supra note 96, at ch. 60.

373. 372. Presser, 116 U.S. at 265.

374. 373. Id. at 265-66.

375. 374. Id. at 265.

376. 375. See, e.g., Levinson, supra note 1, at 652-53.

377. 376. See Planned Parenthood v. Casey, 505 U.S. 833, 848 (1992); Moore v. East Cleveland, 431 U.S. 494, 502 (1977) (plurality opinion); Poe v. Ullman, 367 U.S. 497, 542-43 (1961) (Harlan, J., dissenting).

378. 377. See Halbrook, Personal Security, supra note 1, at 343-44.

All above cites from: The Second Amendment in the Nineteenth Century" by David B. Kopel

Like Cruickshank, the Supremes in Presser attempted to limit the import of the 14th Amendment. Subsequent cases have changed this mid-19th century understanding of 14th Amendment implications regarding applying the "Bill of Rights" to the States, to wit:
Article. XIV.

[Proposed 1866; Ratified Under Duress 1868]

Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Even if you believe, as you apparently do, that "the People's right to keep and bear arms" is merely a "privilege", it would appear that in both Cruickshank and Presser (as in Dred Scott before them) the Supreme "blow it" when they limited the effect of the 14th Amendment!
1.10.2006 7:28pm
Neal Lang (mail):
The Mein Kampf reference violates the rules below, however. Please don't do that again.

My reference to Mein Kampf also has a historical validity as when the Nazi's used the Nazi Weapons Law of 1938 to deprived Jews and others (considered by the Nazi as being non-persons) their "right" to "keep and ear arms". This was much the same way that the Taney court deprived the "non-persons" known as African Slaves their "human rights" in Dred Scott.

If self-defense (and it means) is a "RIGHT", then neither the Supremes nor the Nazis can "infringe" upon it. However, if, as Mikeye opined, it is a mere "government endowed privilege", then both the Nazis and Southern racists could of course deny same to those they choose to define as "non-persons". The point being that "racism", whether its source is Hitler's Mein Kampf or the "Three-Fifths Compromise" of the Constitutional Convention, can only deprive men of their "human rights" if their "human rights" are merely "government endowed provoleges".
1.10.2006 8:02pm
Neal Lang (mail):
This though is similiar to an obscenity law with regards to the first amendment.

How can you compare exercising one's "right" of self-defense to creating "obscenity"? Outlawing obscenity is possible, despite the 1st Amendment, because, first, the "speech and press" antipated is "political", just like the "assembly and petition rights" of that Amendment. And even if the "speech and press" protected is not limited to "political", no "Right" may be exercised to do "evil" (such as creating "obscenity"), only "good". That is why the Founders opined that the Republic they founded could not last without a "moral and ethical" people. An "immoral and unethical" people cannot be trusted to properly exercise "rights", such the "right to keep and bear arms".
1.10.2006 8:28pm
Noah Klein (mail):
Neal:

This going be the last time I going to post in response to you if you can't debate somebody civilly. Anyway, first as to your statement that Dred Scott was a position of the Supreme Court. You are right this was a ruling of the Supreme Court. One that was later reversed. So was Korematsu. So Bush v. Gore. These are all decisions I was not a fan of when I learned of them. Yet that doesn't change the fact the Supreme Court has ruled many, many times on your reading of the constitution and said that they don't agree with you. I have my position. I believe I explained it well and it was good enough position to convince the Supreme Court. Until they change their ruling, it still stands. Or of course, if an amendment to constitution is passed. That would be interested, because it would be the first amendment to an amendment.

As to the KKK case, another case that was bad. I have also already admitted that gun control laws were used in the South as racist tools. This does not mean that current gun control laws are racist or unconstitutional or not good policy.

Concerning your Mein Kampf reference, the Jews had already lost a lot of their rights with Nuremberg Laws and subsequent laws. Owning weapons would probably changed what happened. An example to demonstrate this is the Warsaw Uprising. But that of course is a historical hypothetical and not proof. Yet, if your saying that it was the Nazi Gun laws that was encroachment on freedom and the ultimate reason for the Holocaust than you are making a claim that no historian would make.

When Wince rebuked you (Sorry Wince if I am going to put words in your mouth), I believe he was refering to your statement

"You mean in the sense that "political free speech, press, and assembly" are "privileges", or that the right to express one's religion faith is some sort of government granted "privilege"? Where did you get that idea from? Mein Kampf?"

This was not a statement trying to compare my argument to relevant historical example about Nazi Gun Laws, but a not to subtle attempt to equate me with Nazis, because I advocate a position with which you disagree. You may deny it, but it is pretty obvious.

Finally, as to your point that self-defense is a right and must be defended, I would say yes it is right. I would disagree with you that voting is privilege. I think it is a right and responsibility. One of the most influential political treatises that guided our Founders to their construction of the Constitution was John Locke's "Two Treatises of Government." In this document, he discusses the idea of social compact. He states that in a state of anarchy, which is the natural state, man has all rights given to him by G-d. Yet in this state of anarchy, man is unprotected from the assaults by his neighbors. Thus man forms a social compact (or is it convenant) with his neighbors to give up some freedoms to obtain security. This is from where I get my ideas. Once again, I will state that I believe in the right to keep and bear arms, I just don't think its absolute.

Noah
1.10.2006 8:34pm
SDOH:
Two broad questions:
1)
How should one interpret "arms"?

If I follow the argument of this thread post, one must look to the textual purpose of the amendment: securing liberty from a potentially tyrannical government. The first 13 words are expansive, rather than restrictive, and informs the definition of "arms."

This purpose, taken at face value, sweeps more broadly than what gun-rights advocate propose. For the 2nd Amendment to be effective at this purpose, "arms" must be an amount of firepower sufficient to defeat the US Armed Forces. (and why would the Framers draft an ineffective 2nd amendment - one that makes it close fight, but no cigar?).

Because most gun-rights advocates (justifiably) do not propose this amount of judicial protection, I must ask how one can justify dialing the definition of "arms" to a size insufficient for the claimed purpose of the 2nd amendment. I hear one of two arguments:
i) Originalist. The "arms" contemplated at the time of enactment fired projectiles; or
ii) Public safety requires it.

Neither of these arguments, as employed here, have a limiting principle that - as far as I can see - would be acceptable to gun-rights advocates.

i) The originalist argument, as I understand it, is usually one employed to say that a) Enactors had X in mind when they wrote the language, and thought X was permitted by the language; or that b) Enactors had X in mind, thought it was permitted; and (uncontemplated) Y is like X in relevant respects.

Assuming that the Enactors did not have those modern armaments sufficient to defeat the US armed forces in mind, we will look to (b). Here, the relevant 2nd amendment purpose would be the ability to protect oneself from tyranny by the US, by force. With respect to this purpose, there is no distinction between projectile-firing and other armaments.

"Originalism" is used in this context, I think, in a way that it usually is not: c) to restrict constitutional protection to only those things contemplated by the Framers (X), and to deny constitutional protection to (uncontemplated) Ys. However, ruling out armaments with much greater firepower as not "arms" because they weren't in contemplation is probably unsatisfactory - unless one is satisfied with 2nd amendment protection limited to muzzle-loaders, etc.

ii) Public safety. This is the entire discussion at issue. By itself, it implicates any "absolute" character of a 2nd amendment right.

2)
My other, political, question is the following: Almost everybody can see relevant (w/respect to safety) differences between carrying a rifle in the woods, and carrying a 9 in a parking lot. Politically, I would think that this would be an easy argument to make. I am simply unsure how much judicial protection hunting really requires. Therefore, the real question in my mind is why carrying a gun in the presence of other people should be judicially protected.

If the argument is that carrying a firearm in the presence of other people is required to secure personal safety, I have to ask whether the state of nature, Hobbes, Locke, etc. didn't make a persuasive case that this is precisely the need for the State. I would also ask whether questions regarding measures taken to protect citizens from violence should at least be up for democratic debate.

If the argument is that carrying a firearm in the presence of other people is required for protection from the State, then I have to go back and ask question (1) - how to interpret "arms" - and then ask if it is also necessary to have the right to carry all of these armaments in the presence of other persons. Personally, I cannot imagine that the Framers, as influenced by the state of nature, etc. would accept such a situation.
1.10.2006 9:07pm
Neal Lang (mail):
Thus Madison wrote the 2nd Amendment. This is where I get my reasoning behind the amendment. We may disagree, but I think that the founders concerns about firearms and some the same concerns people who are for gun control have today and thus why they support it.

James Madison prefaced his proposed "Bill of Rights" the following prologue:
First.
That there be prefixed to the constitution a declaration--That all power is orginally vested in, and consequently derived from the people.

That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.

That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.

Apparently, Madison thought "the People" retained an "indubitable, unalienable, and indefeasible right to reform or change their government right". Without an equal "indubitable, unalienable, and indefeasible right" to "keep and bear arms", just how do you suppse Madison thought "the People" might exercise their "indubitable, unalienable, and indefeasible right to reform or change their government"?

Of course Madison didn't believe that the Constitution required a "Bill of Rights" - something he only agreed to in order to have his State of Virginia ratify the Constitution. Also his version of the 2nd Amendment didn't make the Congressional cut, to wit:
Fourthly.
That in article 2st (Article I Section 9. - "Limitiations on Congress"), section 9, between clauses 3 and 4, be inserted these clauses, to wit, ...

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

Please note Madison's "proposed" punctuation - "The right of the people to keep and bear arms shall not be infringed" stands on it's own. The idea of "a well armed, and well regulated militia being the best security of a free country" is a completely separate thought reflecting on the preference of a "people's militia" to a "large standing army" for National Defense. Also note that Madison's "conscientious objection" clause also was omitted. The interesting thing is that obviously Madison believed that every person must particiate in the "militia", providing their own "firearms and kit". These were defined in the The Militia Act of 1792, to wit:
I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

Note that the "musket or firelock" was the "assault rifle" of the period. Apparently our Founders didn't have a problem with "each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years" being armed with their "personal assault rifle". Of course, in 1792, "a good rifle" was considered far more "deadly" than the standard issue military "musket or firelock". The Founders, unlike the "gun controllers" of today, insisted that "the People" possess their own MILITARY TYPE weapons. If they were with us today, they would insist that "the People" own the equivalent of a M-162A, in order to be prepared to dfend the Nation, or overthrow a tyrant.
1.10.2006 9:34pm
Neal Lang (mail):
This does not prevent you from having possesion of firearms (including fully automatic weapons if you pay the taxes and your state allows them) or using them in your defense even in the case of an illegal carry (although state laws may disagree with me, but I am alluding to extraordinary circumstances.)

What part of "shall not be infringed" eludes you?
1.10.2006 9:38pm
Neal Lang (mail):
Anyway, first as to your statement that Dred Scott was a position of the Supreme Court. You are right this was a ruling of the Supreme Court. One that was later reversed. So was Korematsu. So Bush v. Gore. These are all decisions I was not a fan of when I learned of them.

Actually it has never been reversed. Instead, it was superceded by Amendemnts, to wit:
Article. XIII.

[Proposed 1865; Ratified 1865]

Section. 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section. 2. Congress shall have power to enforce this article by appropriate legislation.

Article. XIV.

[Proposed 1866; Ratified Under Duress 1868]

Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Article. XV.

[Proposed 1869; Ratified 1870]

Section. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section. 2. The Congress shall have power to enforce this article by appropriate legislation.


Neither was Korematsu nor was Bush v. Gore.

Of course it was this "the Taney Court" type of thinking that directly lead to Civil War and death of over 500,000 Americans - more than have been lost in all our other wars combined.

BTW, I believe it was you, and not I, who touted the infallibility of the Supremes as the true meaning of things Constitutional.
This does not mean that current gun control laws are racist or unconstitutional or not good policy.

Really? Do you have any idea what the "demographics" of the Washington, DC happens to be?
"You mean in the sense that "political free speech, press, and assembly" are "privileges", or that the right to express one's religion faith is some sort of government granted "privilege"? Where did you get that idea from? Mein Kampf?"

This was not a statement trying to compare my argument to relevant historical example about Nazi Gun Laws, but a not to subtle attempt to equate me with Nazis, because I advocate a position with which you disagree. You may deny it, but it is pretty obvious.

First, my infamous Mein Kampf response to begin with was directed not to any comment of yours - why you would take offense, other than paranoia, escapes me.

Be that as it may, you completely misunderstand just what allowed both Slavery and the Holocaust. In the case of American Slavery, it was most clearing defined in Chief Justice Taney's majority opinion in Dred Scott. In the case of Holocaust, it was most clearly expressed in Hitler's Mein Kampf. Simply put, it is that there are NO "Creator endowed rights" - merely government allowed "privileges". Perhaps I made my point too finely - however, our Framers made the same point when they ratified the 2nd Amendment, forbidding "government", at any level, to "infringe" on "the People's RIGHT to keep and bear arms".
Concerning your Mein Kampf reference, the Jews had already lost a lot of their rights with Nuremberg Laws and subsequent laws. Owning weapons would probably changed what happened. An example to demonstrate this is the Warsaw Uprising. But that of course is a historical hypothetical and not proof. Yet, if your saying that it was the Nazi Gun laws that was encroachment on freedom and the ultimate reason for the Holocaust than you are making a claim that no historian would make.

Not quite. First, the 1935 Nuremberg Laws merely prohibited marriages and extra-marital intercourse between “Jews ” (the name was now officially used in place of “non-Aryans ”) and “Germans” and also the employment of “German ” females under forty-five in Jewish households (The Law for the Protection of German Blood and German Honor) and excluded the Jews from German citizenship (The Reich Citizenship Law). However, there was no legal constraint on Jewish firearms ownership until 1938 when the Nazi Firearms Laws were enacted. Of course, a mere formality like "no controlling legal authority" did not really prevent the Nazis from raiding Jewish homes and shops and taking their weapons.
We are in danger of forgetting that the Bill of Rights reflects experience with police excesses. It is not only under Nazi rule that police excesses are inimical to freedom. It is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end. - Justice Felix Frankfurter 1

The most foolish mistake we could possibly make would be to allow the subject races to possess arms. History shows that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by so doing. - Adolph Hitler 2

Gun control laws are depicted as benign and historically progressive.3

However, German firearm laws and hysteria created against Jewish firearm owners played a major role in laying the groundwork for the eradication of German Jewry in the Holocaust. Disarming political opponents was a categorical imperative of the Nazi regime.4 The Second Amendment to the U.S. Constitution declares: “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.”5 This right, which reflects a universal and historical power of the people in a republic to resist tyranny,6 was not recognized in the German Reich.

Notes:
1. Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting).
2. HITLER'S SECRET CONVERSATIONS 403 (Norman Cameron and R. H. Stevens trans., 1961).
3. “But if watering down is the mode of the day, I would prefer to water down the Second Amendment rather than the Fourth Amendment.” Adams v. Williams, 407 U.S. 143, 152 (1972) (Douglas, J., dissenting). “There is no reason why all pistols should not be barred to everyone but the police.” Id. at 150-51.
4. Besides gun control, the Nazis were supposedly ahead of their time in such socially-responsible causes as the eradication of tobacco use. ROBERT N. PROCTOR, THE NAZI WAR on CANCER (1999). PROCTOR, THE NAZI WAR on CANCER (1999).
5. U.S. CONST., amend. II.
6. On the history of this right, see this author’s THAT EVERY MAN BE ARMED: THE EVOLUTION of a CONSTITUTIONAL RIGHT (1984; reprint Independent Institute 1994); A RIGHT to BEAR ARMS: STATE and FEDERAL BILLS of RIGHTS and CONSTITUTIONAL GUARANTEES (1989).
7. Infra, passim.
From: NAZI FIREARMS LAW AND THE DISARMING OF THE GERMAN JEWS

While you could be right that disarming the Jews may not have been necessary for the Nazis bring off the Holocaust, it might have been interesting to see just what would hve happened had the SS and Gestapo sent to collect the Jews been greeted with a gunshot. I imagine it might have made SS and Gestapo recruitment a tad bit harder.
This was not a statement trying to compare my argument to relevant historical example about Nazi Gun Laws, but a not to subtle attempt to equate me with Nazis, because I advocate a position with which you disagree. You may deny it, but it is pretty obvious.

Considering I wasn't even referencing anything you had stated, I find you delusions quite amazing. Of course, the Nazis saw "the People's" ownership of firearms, a State granted "privilege" rather than a "an indubitable, unalienable, and indefeasible right". I suppose if you see the same way, then the shoe just might fit.
1.10.2006 11:08pm
Noah Klein (mail):
Neal:

When you're right, you're right. I took offense at first when you called me a racist and then I had just been reading post above and did not realize the Mein Kampf reference wasn't for me. The point is that by automatically equating somebody's position with despised and generally insulting positions when they haven't said anything of the sort is generally considered rude.

I said: "Yet that does not mean that the state has no reasonable right to regulate."


You said: "In Washington, DC your "reasonable right to regulate" is a total prohibition of private ownership of firearms - yet DC has the highest crime/murder rate in the US. Apparently the government of Washington, DC is failing to secure "life, liberty and pursuit of happiness (property)" for "the People" of the District. Go figure!"

It is always those that appeal to extremes that have least educational to say. I am sorry that I was mistaken, when you were calling me a racist, I thought you were calling me a Nazi, as well. As to point about Washington, D.C. Have you every been there? I went school there for four years. I lived the city. I kinda know the demographics. Its a small area. Only 10 sq. miles. I know it is about 85%-90% black.

Do you know that the citizens of Washington were only given this incarnation of self-rule (The D.C. city Council) in the 1970's? In that period, they have eliminated the death penalty, legalized medical marijuana, passed this gun ban and very many other things. It's a liberal city. But the citizens, (you know those black people), they vote for their leaders. Their last two mayors, they were African-American (OHHHHH!). Their delgate to Congress, an African-American women (NOOOOO!). And most of their city council, they're African-American too. Merely because I express a position that something is reasonable, does not mean I take it to its extreme. Secondly, to imply that I advocated or that the government is pursuing a policy that may be bad and may lead to higher crime rate rather than lower, as they intended, is trying to murder their citizens is foolish and mean-spirited for no reason. The people of D.C. approve of this law. They know their crime rate.

Maybe its a bad law, but that does not mean that they came to the conclusion you have about the law or your interpretation of the Constitution. And since the Supreme Court approved of their position and not yours, you still have to live with it. If its so oppressive, then why haven't you rebelled yet? I didn't like Bush v. Gore and but I lived with it because we set up a system where the executive executes, the legislatures legislates and the judiciary interprets the law. I understand these institutions will make mistakes, but I believe that so far they've done pretty good. If I felt it was so oppressive, I would exercise my right given to me by G-d to overthrow those laws through amendment or threw other means (And now I am going to be spied on).

To answer you're points about the Dred Scott decision and the Korematsu decision and whether it is still precendent, I am going to point out two later cases. The first is the Brown vs. Board of Education. Brown v. Board of Education as you know overruled the Plessy v. Ferguson law, but it also overruled Dred Scott. In several ways. First, Brown was given federal standing. This is something that Dred Scott was not given. Thus it either of in an of itself gave standing or it relied on precedent. Seconly, Taney famously said that "no black man has a rights that need to be respected by a white" (paraphrase, not direct quotes). Brown said that people were separate but equal. Precedent remains precedent, even if an intervening amendment to constitution change the orignal interpretation until that ruling is overturned, it still the Supreme Court's precedent. Now thaat doesn't mean its the law, but it does mean that it is precedent. The definition of precedent as provided by findlaw is:

a judicial decision that should be followed by a judge when deciding a later similar case
(see also stare decisis)
(compare dictum)
Note: To serve as precedent for a pending case, a prior decision must have a similar question of law and factual situation. If the precedent is from the same or a superior jurisdiction (as the state's supreme court), it is binding upon the court and must be followed; if the precedent is from another jurisdiction (as another state's supreme court), it is considered only persuasive. Precedents may be overruled esp. by the same court that originally rendered the decision.

Korematsu was overturned when the Supreme Court allowed the Japanese affected by Roosevelt's executive order to sue and seek damages in the 1980's. This case is Korematsu v. United States, 584 F.Supp. 1406 (1984).

American citizen of Japanese ancestry petitioned for writ of coram nobis to vacate his 1942 conviction for being in a place from which all persons of Japanese ancestry were excluded pursuant to a civilian exclusion order. The Government filed cross motion to dismiss the prosecution against petitioner. The District Court, held that petitioner was entitled to writ of coram nobis to vacate his conviction where there was substantial
support in the record for proposition that Government deliberately omitted relevant information and provided misleading information in the papers before court concerning whether the actions taken were reasonably related to the security and defense of the nation and the prosecution of the war, where Government failed to rebut petitioner's certificate setting forth collateral consequences he believed he suffered and would continue to
suffer as result of the 1942 conviction and where Government failed to rebut petitioner's showing of timeliness. Petition granted and countermotion denied.


Noah
1.11.2006 12:57am
Andy Freeman (mail):
As I pointed out near the beginning, advocates of imposing certain forms of gun control don't refer to the actual results of imposing those forms of gun control. I wonder why they find their theories more compelling arguments than the actual experience.

Note also that they insist that they're only interested in crime control, yet seem uninterested in removing gun control measures that haven't reduced crime. Surely if they're going to make "let's try it" arguments, they should be willing to undo failed experiments.
1.11.2006 2:22am
Freder Frederson (mail):
I believe registration also led to confiscation in New Orleans shortly after the hurricane.

There was and is no registration of guns in New Orleans. I live in New Orleans. Louisiana (and New Orleans) has some of the loosest gun control laws in the country and liberal concealed carry laws, yet it has the one of the highest murder and violent crime rates. And it hardly coddles criminals either. It also has the most (in absolute numbers, not even adjusted for population) inmates serving life without parole. There is no other kind of life sentence in Louisiana--a life sentence means you are going to die in jail.
1.11.2006 9:28am
Freder Frederson (mail):
Note also that they insist that they're only interested in crime control, yet seem uninterested in removing gun control measures that haven't reduced crime. Surely if they're going to make "let's try it" arguments, they should be willing to undo failed experiments.

Yet, by the same token, every time gun control advocates point out statistics that indicate that loose gun control laws have very little impact on crime or the lack of any real causal connection between gun ownership and lower crime rates and that the states with the loosest gun laws also tend to have the highest violent crime rates, gun advocates find some excuse that explain away the paucity of their argument. Or when it is pointed out that of all developed nations, the U.S., for all its guns and the least gun regulation (even countries like Switzerland where gun advocates like to point out, practically every household has a military assault rifle, the weapons are strictly regulated and registered), consistently has the highest violent crime rates, especially when it comes to gun violence, the fault is always "cultural differences", not the availability of guns.

Then we have the silly notion that "registration inevitably leads to confiscation". This is of course nonsense. Most developed countries have strict registration schemes and most citizens in those countries are allowed to own firearms for sporting countries. There are a number of countries that have quite a high gun ownership rate (e.g., Canada, Germany, Australia), with very strict gun registration regimes. Granted, the concept of gun ownership for self defense is considered legitimate only in very limited circumstances and guns are generally registered for sporting purposes only. But the fact remains that sportsmen possess hunting and sporting guns under very strict registration and licensing schemes in these countries.
1.11.2006 11:32am
juris imprudent (mail):
Noah,

You mentioned two key reasons for supporting some form/amount of [state-based] gun control.

The first was the relation of guns to violent crime. Please elaborate on the experience of any jurisdiction in the world that has instituted gun control for the purpose of reducing crime and succeeded in reducing crime.

The second was your reading of the 2nd Amdt - that the right to keep and bear arms depends on the militia. You unfortunately have the dependency backwards - there can be no militia ("necessary to the security of a free state") if the people do not have arms. Now, we can certainly debate the necessity of the militia (given that we don't have one today and are still quite arguably free); but even concluding it no longer being so, that does not affect the underlying right of the people. The most definitive ruling by SCotUS, and it is one of poor legal quality, is U.S. v. Miller (1938). Had the 2nd applied only to the state militias, not individuals, SCotUS would have punted the case as they did Newdow, for lack of standing. They did not. They remanded the case for evidentiary hearings with the standard that if the gun in question was useful for militia purposes, the 2nd protected it's possession. And there the case mooted.
1.11.2006 11:43am
juris imprudent (mail):
Freder,

You perfect the circular argument. Of course places where guns are more common will have more gun crime. The question is what is the effect on ALL crime. I offer you the same challenge as Noah, name any place that has instituted gun control to reduce crime, and done so successfully. Britain for example would not count, as they did not implement gun control in response to crime and in fact, crime has risen despite gun control there.

By the way, Wyoming gun laws are about as "loose" as Louisana. Crime there is a different matter (violent crime less then half, the murder rate 1/5th). How do you account for that? Surely it isn't the gun laws and guns.
1.11.2006 11:56am
Mikeyes (mail):
Did I make a layman's error in equating "Privilige" with something the state gives and "Rights" with something that the state apparently takes away? My very small point did not deny anyone the right to self-defense, I still believe that if I need it, I will carry a gun with me - "Better to be tried by twelve than buried by six." My contention is that the existing concealed carry laws are the answer to this aspect of the problem and that more states should enact them. Essentially it is a political question that can't be forced in many states but is present in others. To those who state that we have an inherent right to carry a gun concealed under the constitution, I don't disagree, but apparently the states do, thus the privilege aspect of my theme. If the courts will not change this then one has to look for other arguments and other means including the compromise of a broad privilege of concealed carry. I do have other ways to defend myself, clubs, my Shutzen trained Rottweiller, a concealed knife, martial arts training, common sense, and a willingness to run like hell so my right to self defense is still there.

Since I am a state champion pistol shooter, a life member of the NRA, a nominee for the now defunct American Handgunner award, and a strong promoter of Second Amendment rights, I am certainly not a gun confiscating liberal. (Note the apeal to authority, I thought it a nice change from ad hominem arguments.) I just think that if you can't win on judicial grounds you have to appeal to the legislative/political/ popular opinion side of things. Making sure that there are legal protections for concealed carry is one of those ways. Even the NRA is opting for these laws.
1.11.2006 2:00pm
Noah Klein (mail):
Freder,

I would posit that California is an example of a state that banned assault weapons and thus reduced crime. In 1989, California passed a ban on assault weapons. This law went into effect in 1992. By 1994, murders began to be reduced and have continued to go down.

I am also going to quote the Brady centers answer to your question. While the Brady Center is obviously not impartial, you can check their evidence and prove me wrong:

"Gun traces are one of the best measures of gun usage in crime. In 1999, the National Institute of Justice reported that trace requests for assault weapons in the 1993-95 period declined 20% in the first calendar year after the ban took effect, dropping from 4,077 in 1994 to 3,268 in 1995. Over the same time period, gun murders declined only 10% and trace requests for all types of guns declined 11 percent, clearly showing a greater decrease in the number of assault weapons traced in crime.[8]

This same study also reported that the number of assault weapons traced in St. Louis and Boston declined 29% and 24% respectively, as a share of all guns recovered in crime, during late 1995 and into 1996.

In addition, a study by the Brady Center to Prevent Gun Violence (formerly the Center to Prevent Handgun Violence) found that, in Maryland, whose ban on assault pistols took effect in June 1994, the number of assault pistols recovered by Baltimore police in the first six months of 1995 fell by 45 percent from the first six months of 1994.[9]"

You might think that my legal argument is not convincing. You might also think that the case U.S. v. Miller was decided poorly and also the opinion is of poor legal quality. But it is the opinion of the SCOTUS and it has been upheld numerous times. I believe that it was decided correctly. I think that SCOTUS was right when they said that people retain the right to keep and bear arms, but that right is not absolute and can be regulated.

As to your point that I am reading the amendment backwards, I do not think so. Civilians do not need to own weapons for them to participate in a militia. Today, in the National Guard and the military forces, a person does bring the weapon that they will use with them into the military. Remember, the thinking of the founders was that if the federal government becomes oppressive, it will be the states who rebel, not individuals. This is, of course, how it happened during the Civil War. Secondly, we notice in the Militia Act that every member of the militia is supposed to buy their own arms within six months of becoming part of the militia. This was done because, the states didn't have enough money to supply everybody with a weapon. Not because they thought everybody would or should have a weapons. Firearms are more prevalent today than they were in the past.

Finally, just because the founders saw no reason to regulate at the time does not mean they felt their was no reason to regulate weapons or that the state shouldn't.

Noah
1.11.2006 3:12pm
juris imprudent (mail):
Noah,

I would posit that California is an example of a state that banned assault weapons and thus reduced crime.

Considering that "assault weapons" were never commonly used in murder, to what do you attribute this amazing result? Even better, what was the causation between the banning of "assault weapons" and the drop in NON-GUN homicide? If that is what passes for evidence for you, then I doubt there is much that your credulity would filter out.

I am also going to quote the Brady centers answer to your question.

I wish you would think for yourself rather then quoting a marginally truthful organization. Why you might ask?

"Gun traces are one of the best measures of gun usage in crime."

The govt categorically states that this is not true. Now, who is in a better position to know this - the Brady bunch or the people that actually collect/process the data? See Kopel for details.

I think that SCOTUS was right when they said that people retain the right to keep and bear arms, but that right is not absolute and can be regulated.

Of course the right isn't absolute. Neither is the right to free speech, or freedom of worship. But are you seriously trying to argue that the RKBA is treated like those now? If it were I am sure we would not be having this disagreement.

Civilians do not need to own weapons for them to participate in a militia.

If you had a clue as to what a militia is, you would not say that. The NG is NOT the militia - it exists as per Congress's authority to raise armies, not under regulation of the militia (and these are indeed distinct powers in Article II).

Firearms are more prevalent today than they were in the past.

Oh good lord, NOT Bellesiles. Do you not realize how totally discredited his work is?

Finally, just because the founders saw no reason to regulate at the time does not mean they felt their was no reason to regulate weapons or that the state shouldn't.

Uh-huh. So, if a state decided to have an official church and require all residents to support and attend that denomination, that wouldn't run afoul of the 1st Amdt because the founders didn't prevent the states from doing so explicitly. Yes, the states can regulate gun possession, under their general police power. Funny though how that police power IS limited by the 4th and 5th Amdts.
1.11.2006 5:59pm
Andy Freeman (mail):
> Of course places where guns are more common will have more gun crime.

No. It's a tautology that places with no guns will have no gun crime, but it isn't true that places with more guns will have more gun crime. It's true in some cases and untrue in others.

BTW - During DC's worst years, it didn't have the highest murder rate in the US. During at least a couple of those years, that "honor" belonged to East Palo Alto CA, which had 3x DC's rate. (DC was merely the worst of the bigger cities.) East Palo Alto is next to Palo Alto, a city that has a murder every decade or so. (One of the last two was committed by some folks from EPA.)

PA and EPA have the exact same gun laws, roughly the same population density, and PA is likely to have more guns per capita than EPA. (Gun ownership is correlated with wealth.)
1.11.2006 6:38pm
Noah Klein (mail):
Juris:

Firstly, with regards to militia, I am history major and have studied the revolutionary war. A militia was a state organization created to defend the state from outside enemies and from internal distress. Militias were citizen organizations with weapons. They had specific purposes and were governed by the state. This is evident in the fact that the British in 1775 were going after a weapons depot in Lexington. This is evident in the fact that in 1781, when Nathaniel Greene was confronting the British, Thomas Jefferson, commander and chief of the Virginia militia, did not want to give Greene authority over his troops. Oh yeah, I forgot about how George Washington who was a Colonel in Virginia militia in the 1750's organized the defense of Western Virginia under the orders of the Virginia legislature.

Second, honestly I was tired and didn't want to do to much research so I went to a site that gave evidence that you asked for. I notice that you did not dispute the evidence given by the National Institute of Justice.

Third, I pointed out in many earlier posts that the language, the history and the legal rulings of the Supreme Court demonstrate that firearms can be regulated, but they can not all be banned. Whether you agree with me or not, there is the opinion made by the Supreme Court and the American people through their legislators with the Brady Act. The police power of the government is most certainly restricted in the 4th and 5th amendment, but that doesn't mean that the state doesn't have the power to regulate firearms. We not meant to trust the executive completely, but that does not mean the state doesn't have the power to make laws.

Finally, I am sorry I was incorrect about the prevalence of guns in the 18th century. I actually never the read the book, I heard about it. The second and gun control are not my issues. I am really fine with concealed carry laws and am not sure about whether banning assault weapons has helped to prevent horrific violence. On that note, we in California, as I said above, have had some of the worst gun violence: the drive-by was invented in L.A and these use assault weapons a lot. Getting back to the point though, I actually didn't remember the authors' name. I apologize sincerely for offering evidence, which I did not research full and had no idea was disproven.

Noah
1.11.2006 8:44pm
juris imprudent (mail):
Noah,

As a student of early American history you must also know how ineffective the militia actually was, both during the Revolution and in the early days of the Republic. The truth is the militia almost never functioned as the Founders hoped. We have subsequently found that an army of citizen-soldiers is an effective national defense without threatening the security of our free state. Again, given the dependence of the militia on the people being armed, it isn't important. If indeed the dependence was as you supposed, then there would be no individual right of ANY scope. And you do seem to believe there is an individual right.

Second, honestly I was tired and didn't want to do to much research so I went to a site that gave evidence that you asked for.

The problem is that I asked for data, that to the best of my knowledge, does not exist. There is no place that has implemented gun control in order to reduce crime and actually seen crime reduced. Nor is there likely to be any kind of causal relationship between guns and non-gun crime, no?

As to your third point, you have basically parrotted the Brady line, which again is not true. Courts have indeed ruled against gun control. Read up on Presser - it was about parading armed. Another mis-cited case is Cruikshank. These were both pre-incorporation cases which means they are essentially moot as doctrine. The Brady bunch, and not a few appellate courts, have mangled Miller - though none more spectacularly then the 9th Circuit in Hickman v. Block.

...am not sure about whether banning assault weapons has helped to prevent horrific violence.

It hasn't. It was a knee-jerk response to one nutcase shooting up a school. Please don't bring up the North Hollywood bank robbery as they were using fully automatic weapons (which were illegal BEFORE the AW ban and the incident happened 8 years after). This is where you are lacking in facts and simply using anecdote and/or myth as your 'evidence'. Please do some real research to support your opinion (or change your opinion based on your research). No hard feelings and best of luck to you in your studies.
1.11.2006 11:32pm
luagha:
Noah, I would like to answer a question you asked way back, which was, "I have never understood why gun rights activists cannot seem to read the full amendment." (followed by a quotation meant to emphasize the presence of 'A well-regulated militia, being necessary to the security of a free state,'.)

The reason why gun advocates do not emphasize the presence of the first clause of the Second Amendment is because it leads into the discussion we had above. :) The gun rights advocate gets into things like how a dependent clause explains but does not limit, and the definition of 'well-regulated' that historical fiction aficionadoes know reflexively, but it never seems to matter.

It does not require the presence of the 'well regulated militia' clause for the Supreme Court to put reasonable limits on the right to keep and bear arms, as you say. There are no such clauses in the First Amendment, and yet the Supreme Court has put reasonable limitations upon the right of freedom of speech. It seems obvious that the presence or lack thereof of such explanatory clauses makes little difference in the Supreme Court's rulings on various amendments - the last of which on the second amendment, as stated above, being very long ago and not a great example for many reasons.

The question becomes where the line is drawn, who draws it, and when. (And if drawn incorrectly, what redress exists.)

(You should take this as an agreement with your primary argument, while I'm guessing that I have a different idea than you as to where to draw the line and why.)
1.12.2006 1:46am
Noah Klein (mail):
Juris:

As I said above, I have not seen evidence that gun control laws either fail to control or have no effect on crime. One of the real problems in studying this issue that crime has so many reasons that it is difficult to determine one way or the other. There are instances where gun bans were passed and a reduction in crime (specifically gun violence) has occured and instances where gun bans were passed and there was no reduction in gun violence or an increase. I have also seen instances when concealed carry laws were passed and gun violence has increased and cases with concealed carry laws and gun violence decreased. This does not mean the state has no compelling interest in regulating weapons, just that a majority of the people have to make a determination that such regulations are good policy.

With regards to an individual right, I have always felt the amendment asserted not only the right to keep and bear arms, but also enshrined the right to self-defense. The militia was designed to be a self-defense against an oppressive government and the individual right is a self-defense against violent assaults by criminals. The militia was never effective fighting force. George Washington, Hamilton and other American regular army officers constantly complained about the militia and the British constantly derided the militia. Yet the idea of the citizen-soldier was an integral part of what many founders wanted to be the defense against tyranny. Remember that the founders expected a small, if any standing army and small navy. A militia force might have provided a very adequate defense of a state against this weak force. Sorry for digressing.

As to the Brady site, it does provide data through an appeal to a third party study. How accurate that study is I could not tell you? But you asked for evidence and I did a lazy job of providing it, but there is data there, which you didn't dispute.

The North Hollywood shooting incident was very big for our community. You're right that they were automatic weapons and you're right that this happened after the ban. I was using that example as an example of how California has been affected by gun violence. Yet also there was the 1989 shooting with a Tec-9 and many other incidents that has so shocked this state that we used the authority granted to the state to regulate weapons.

Presser did involve the armed parading and military drills, but it was also the first case that demonstrated that the states can regulate weapons. Presser said that an independent group of individuals parade, like a militia or other military unit, in the streets. The California ban has been challenged and upheld. Other bans, in other states have been challenged and upheld. If the court has actually overturned a ban or other regulation, I would be suprised. I have never heard of such a case. The Supreme Court's opinion is pretty clear. Also I don't know why you cite Hickman v. Block, because it was not an example of the court overturing a gun control measure. As the Court says "Whatever the Amendment may mean, it is a bar only to federal action, not extending to state or private3 restraints. The Supreme Court has given effect to the dependent clause of the Amendment in the only case in which it has tested a congressional enactment against the constitutional prohibition, seeming to affirm individual protection but only in the context of the maintenance of a militia or other such public force." This is the opinion of the court.

Luagha:

Every word of the constitution except the preamble has an effect on the rights given to people, the powers given or denied to government and so on. As is stated above, the court has said that the dependent clause is not explanatory, but has an effect. As U.S. v. Miller says:

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

Miller goes on to say:

"With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

Thus it was expected that people would own such weapons or have them by six months of enrolling in a militia as the Militia Act of 1792 points out. The expectation that people would own such weapons for the militia and all men between certain ages would be part of the mlitia allows us to assume that the second amendment is also an individual right.

But the second amendment is unlike any other right granted under the Bill of Rights. While there are limits on speech and free exercise of religion and some means to conduct warrantless searches, these rights cannot be regulated. You can't regulate speech where you have to register the speech or the religious practice. The legislature cannot make any law respecting those rights. OTOH, the legislature can make laws respecting the right to keep and bear arms.

Finally, I don't where the line should be drawn. That's a policy question that I do not feel confident enough in knowledge of the issue to state a definitive position. My purpose in this thread was to demonstrate that regulations on the right to keep and bear arms are not repugnant to a reading of the constitution.

Noah
1.12.2006 3:00am
Andy Freeman (mail):
Perhaps Noah will be so good as to tell us what an assault weapon is and why regulating it differently should be expected to have an effect.
1.12.2006 11:57am
juris imprudent (mail):
Noah,

Please cite a real example of where a gun control law reduced a set of gun-related crimes. The CA AW ban would require you to show the reduction in AW ONLY crime (murder, robberies, etc), as it would be pretty silly to claim that the AW ban somehow reduced crime with revolvers. You claim there is such data, please, let us see it.

I have also seen instances when concealed carry laws were passed and gun violence has increased

I'd like to hear the specifics of that as well.

Presser was about two aspects: 1) 'private' militia and 2) parading with arms. You really cammot infer from that a general power to license/register/prohibit firearms ownership by individuals. And again, this is pre-incorporation - the decision was based on a view of the Bill of Rights only applying to the federal govt. That is not our current doctrine.

Also, I mention Hickman because if you read the "facts" they drew from Miller (e.g. SCotUS upheld a conviction - it did not, etc.) it is quickly clear that the 9th did not even read Miller but referenced it as a talisman. Secondly, they and you, adhere to a pre-incorporation view of the 2nd Amdt when there is absolutely no logical reason to assert that the 14th incorporates some rights but not others. Yes, SCotUS has done extactly that, and they have been criticized (in dissents) for doing so.

My purpose in this thread was to demonstrate that regulations on the right to keep and bear arms are not repugnant to a reading of the constitution.

To the extent that those regulations meet the requirements that would be applied to 1st, 4th, 5th Amdt etc. - I agree. Unfortunately, you seem to feel that the militia clause enables a broader regulation. You would accept more curtailment of the RKBA then you would freedom of speech. That simply is not justifiable on a constitutional basis.
1.12.2006 12:42pm
Noah Klein (mail):
Andy:

Most people define assault weapons, as military-style weaponry. The more specific definitions are provided by the laws themselves. These laws state limits on the magazine, the grip, fold-up stock and so on. An example is a Tec-9 or Uzi.


Juris:

As I said above, I am not going to get into a debate any further on the merits of this public policy. I do not know enough about it and I said so when I offered you the evidence of gun control advocates. As, I said above the Brady site does offer evidence from a THIRD-PARTY SOURCE, which you have not disputed.

By the time Miller was decided, the Bill of Rights had already been incorporated to apply to the states. Secondly, you still haven't demonstrated to me that I was inccrrect. Hickman, never went to the Supreme Court, so I don't know how you can say that they said the 9th reading of it was wrong. Secondly, though dissents say that the Supreme Court's and my reading of the Constitution is wrong, they still dissents and until they become majorities, no matter how much you or I argue they remain the force of law. I don't think I will be able to convince that the dependent clause of the amendment has effect. I asked question before, but it was never answered:

Aren't all the words of the constitution, except the preamble, meant to have an effect in law?

Noah
1.12.2006 1:32pm
Neal Lang (mail):
My purpose in this thread was to demonstrate that regulations on the right to keep and bear arms are not repugnant to a reading of the constitution.

What is it about the concept of "shall not be infringed" that eludes you?
infringe, verb: to encroach upon in a way that violates law or the rights of another the right of the people to keep and bear arms, shall not be infringed — U.S. Constitution amendment II

To "regulate" a "right", is to "infringe" upon that "right". In the case of the National Firearms Act of 1934 it is the "power" to tax that "right". Our Founders believed that the "power to tax is the power to destroy". If anything, the 2nd Amendment, unlike the 1st, is a restraint on ALL levels of government (and not just the US Congress) to "infringe" on "the People's right to keep and bear arms". "We, the People" of the Preamable (the ones who are delegating a limited amount of their sovereignty to the new Federal Republic) and "the People" of the 1st, 2nd, 4th, 9th and 10th Amendments are all one and the same.

Had the Framers intended to permit Federal "regulation" of "the People's right to keep and bear Arms", they would have placed such a clause in Article I Section 8. Please note where the author, James Madison, suggested placing the 2nd Amendment. It was placed, along with the rest of his "Bill of Rights" - in Article I Section 9, the section of the Constitution that places "specific limitations" on the "powers" of the Federal government, especially the Congress, to wit:
[Section 9.] The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

There is absolutely no way the 2nd Amendment could ever be interpreted as a grant of "power" or "authority" to the Federal government to "regulate" - "the People's right to keep and bear Arms"!
As is stated above, the court has said that the dependent clause is not explanatory, but has an effect. As U.S. v. Miller says:
"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

The reason for the "absence of any evidence" before the Supreme Court in Miller was because only the government presented evidence and briefs in the case. Mr. Miller and friend had long since absconded when the Federal District Court refused to convict for violations under the National Firearms Act of 1934 on 2nd Amendement grounds. Of course, Miller did not vacate the District Court decision in Miller, it merely "reversed and remanded" the case back to the District Court to collect additional evidence, to wit:
In the margin some of the more important opinions and comments by writers are cited. 3 [307 U.S. 174, 183] We are unable to accept the conclusion of the court below and the challenged judgment must be reversed. The cause will be remanded for further proceedings.

Reversed and remanded.

The purpose of the "further proceedings" was to gather additional evidence that the "short-barrelled shotguns" involved in the Miller case had "some reasonable relationship to the preservation or efficiency of a well regulated militia", which in fact it did.

Unfortunately the District Court could not locate Mr. Miller and friend so the case was dropped. Had Justice McReynolds bothered to look he would have found that "Short-barrelled shotguns" had always been used by the US military: first on US Naval vessels and US privateers, as weapons to facilitate "boarding" operations during the Revolution (a "blunderbuss" is "a short musket of wide bore and flaring muzzle, formerly used to scatter shot at close range"); in the territories and in the West fighting Indians; in the Phillipines fighting the Moros (BTW, American Special Forces are still fighting Moro terrorists today); in the European trenches of WWI fighting the "Hun"; and in the Caribbean and Central America by the Marines fighting in the "Banana Wars". In fact, "short-barrelled shotguns", like the Ithaca Model 37 "Duckbill" (see "bunderbuss") were the "weapon of choice" favored by US Marines and Soldiers "walking point" in Vietnam, while fighting the Vietcong and NVA.

The primary firearms "taxed and registered" by the National Firearms Act of 1934 were short-barrelled shotguns (a.k.a. "sawed-off shotguns") and fully automatic firearms such as the Thompson Submachine Gun (which was used by all branches of US Military and National Guard from just after WWI right up until the end of the Vietnam War). Based on Justice McReynolds' Miller opinion, had Mr. Miller been charged with possessing an "unregistered and untaxed" "Thompson", in all likelihood the National Firearms Act of 1934 would have been over-turned on 2nd Amendment grounds.

Unfortunately for you, the Miller opinion can be read either way, to wit:
a. United States v. Miller and the Supreme Court's Second Amendment Jurisprudence

Aside from passing mention in dicta,[78] United States v. Miller[79] is the only guidance the Supreme Court has seen fit to provide in [Page 733] the Twentieth Century. Unfortunately, the guidance provided by Miller is ambiguous and as a result the case is often misunderstood. Miller arose as a result of an appeal by the government to the Supreme Court following the dismissal of an indictment against two Arkansas men accused of possessing a sawed-off shotgun in violation of the National Firearms Act.[80] The lower court sustained the defendants' demurrer, and quashed the indictment on the grounds that the National Firearms Act violated the Second Amendment.[81] The government sought direct review by the Supreme Court, and argued the case alone - no argument was presented by the defendants, Miller and Layton.[82]

In its brief, the government argued for a collective-rights interpretation of the Second Amendment with which Dennis Henigan would be very comfortable.[83] In its opinion, however, the Court did not adopt the government's position; instead, the Court appeared to adopt one of the government's fall-back positions: that the Second Amendment did not protect the right to possess the type of weapon the defendants were charged with possessing. Even then, the Court seemed to take pains to point out that its holding was based solely on the lack of relevant evidence in the record.[84] Both Standard Modelers[85] and Second [Page 734] Amendment collectivists[86] claim the holding of Miller vindicates their respective positions. The collectivists often cite the portion of Miller in which Justice McReynolds wrote that the Second Amendment was framed "[w]ith obvious purpose to assure the continuation and render possible the effectiveness of such forces [i.e., the militia] . . . . It must be interpreted and applied with that end in view."[87] Standard Modelers, however, emphasize the language that follows, in which McReynolds recognized that militias "comprised all males physically capable of acting in concert for the common defense."[88] McReynolds's opinion also mentioned that in colonial times, the arms to be borne by militia members were privately-owned.[89]

Thus, depending on the portion of Justice McReynolds' opinion one quotes (and which parts one elides) the opinion can be cited in qualified support of both sides. However, as Professor Andrew McClurg wrote in an article on the rhetoric of gun control, "[t]o present Miller as standing clearly for either the collective right view or the individual right view is to commit the fallacy of one-sided assessment, because such a presentation depends on ignorance of strong competing evidence and arguments."[90] McClurg concluded that the "most accurate assessment of Miller is that the opinion did not clearly indicate whether the Second Amendment creates an individual right or only a collective right."[91]

Notes:
78. Interestingly, this dicta tends to support the view of the Second Amendment as protecting an individual right. See United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (suggesting that the use of the term "the People" in the Preamble, the First, Second, Fourth, Ninth, and Tenth Amendments should be construed as pari materia); Poe v. Ullman, 367 U.S. 497, 543 (1960) (Harlan, J., dissenting). Harlan wrote:

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.

Id.

79. 307 U.S. 174 (1939).

80. See id., at 175. For a more in-depth examination of the Miller case and its subsequent treatment by lower federal courts, see Denning, Miller, supra note 69.

81. See United States v. Miller, 26 F. Supp. 1002 (W.D. Ark. 1939), rev'd, 307 U.S. 174 (1939).

82. See Denning, Miller, supra note 69, at 973.

83. See id. at 974-75.

84. The Court held:

In absence of any evidence tending to show that the possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Miller, 307 U.S. at 178 (citation omitted).

85. See, e.g., STEPHEN P. HALBROOK, THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT 188 (1984) [hereinafter HALBROOK, EVERY MAN].

86. See, e.g., Henigan et al., supra note 61, at 1-2.

87. Miller, 307 U.S. at 178.

88. Id. at 179.

89. See id.

90. Andrew Jay McClurg, The Rhetoric of Gun Control, 42 AM. U. L. REV. 53, 102 (1992) (footnote omitted).

91. Id. (footnote omitted). This is a telling concession from someone like Professor McClurg, who is an avowed proponent of gun control. See generally Andrew Jay McClurg, The Tortious Marketing of Handguns: Strict Liability is Dead, Long Live Negligence, 19 SETON HALL LEGIS. J. 777 (1995) (discussing holding gun manufacturers liable for negligent marketing of weapons used to perpetrate crimes).
From: GUN SHY: THE SECOND AMENDMENT AS AN "UNDERENFORCED CONSTITUTIONAL NORM"

The current Federal understanding of "the militia" includes the following:
TITLE 10 Subtitle A PART I CHAPTER 13
§ 311. Militia: composition and classes

(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.

Apparently, if your reading of Miller is correct, old farts like me, and the ladies may be "disarmed" by the Feds, as we are no longer members of the "militia". Perhaps that is another reason that the "ERA" should have been ratified!
Every word of the constitution except the preamble has an effect on the rights given to people, the powers given or denied to government and so on.

Unlike our Founders, but just like most "tyrants", such as, Hitler, Stalin, and King George, you seem to think that "rights" are "given to people" by their "government". That is totally wrong! According to the founding document of our country, the Declaration of Independence, our "Rights" come from God, to wit:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

The reason the Framers did not include a "Bill of Rights" in the Constitution was because they felt that adding such might indicate that the Federal government it "instituted" had the "power" or "authority" to in someway "alienate" these "rights" held by "the People". Based on your intrepretation, I guess they were correct.

What you and most "all powerful" government proponents fail to comprehend is that the 2nd Amendment is a limitation on government. A "check and balance" on the Feds as important as the three branches. Of all the Amendments, only the 2nd provides "the People" the final "fail safe" expressed in the Declaration of Independence "to alter or to abolish" a government that has "becomes destructive to these ends ("to secure these rights")".

If, as you say, that "the legislature can make laws respecting the right to keep and bear arms", then government can "alienate" the "right of the People" to "abolish" it. None of the Founders ever expressed such an idea. In fact, every one of them was totally behind the concept that the BEST safeguard of liberty was an armed people. I suggest that you read the Federalist Papers, especially Madison's Federalist #46, where he defends Constitution's delegated power to the Federal government to have an standing Army and to make war. Take particular note of this:
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. From: "The Federalist No. 46" by James Madison - Father of the Constitution and Author of the Original Draft of the Bill of Rights

To think that the author of the 2nd Amendment and Federalist #46 for one moment believed that by adding it to the Constitution he was somehow delegating to the Federal government the "power" or "authority" to "regulate" - "the People's right to keep and bear arms" is totally "repugnant"!
The militia was never effective fighting force.

Really? That is interesting, considering that American Revolution, the War of 1812, the Civil War, and the Spanish American War were all fought by basically militia. Who do think the "Rough Riders" were anyway?
The California ban has been challenged and upheld.

The Supremes have never heard a case on the California ban, or directly "on point" of the 2nd Amendment, since they "punted" on Miller! They have, in fact, been ducking "on point" 2nd Amendment cases. This is the reason Associate Justice Clarence Thomas has opined that it time the Supremes "revisit the 2nd Amendment".
Moreover, in a recent concurring opinion, Justice Clarence Thomas wrote that "The Court [in Miller] did not . . . attempt to define, or otherwise construe, the substantive right protected by the Second Amendment."[92] Although admittedly some Standard Modelers have overstated the certainty of Miller's endorsement of an individual right to keep and bear arms, it should be clear that, at the very least, [Page 735] Miller does not, as some collectivists suggest, foreclose such an interpretation.
Notes:
92. Printz v. United States, 117 S. Ct. 2365, 2368 (1997) (Thomas, J., concurring).

Finally, I don't where the line should be drawn.

I do - "the right of the people to keep and bear Arms, shall not be infringed"! Truly this is not "rocket science"!
1.12.2006 2:07pm
luagha:
I agree that words in the Constitution are meant to have an effect in law, in this case explanatory.

The reason I somewhat denigrated Miller in my earlier response is because Miller didn't show up. 'US' got to argue against an empty podium, which is why the phrasing "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia," is used.

As it turns out, shotguns with a barrel of less than eighteen inches in length were a critical militia weapon in the trench warfare of World War I, less than twenty years ago at the time of Miller. They continue to be used as militia weapons to this day in tight confines, like clearing houses and enclosed installations of hostiles. But with no one there to introduce that evidence to the court, the matter had to lay.

I am perfectly happy to accept a standard of 'a reasonable relationship to the preservation or efficiency of a well-regulated militia' as a test. It fulfills my desires towards the explanatory nature of the well-regulated clause, and would certainly allow any and all semi-automatic 'assault-style' rifles - being as they are all essentially variations on the most common military firearms in use today. Yet again we come to the question of who draws the line and who gets to make the comparison to the military weapons of the day?
1.12.2006 2:14pm
JohnS (mail):
Mr Klein,

As regards the Brady Center's 'third party' study, it would appear you did not follow the link provided by juris imprudens.

You cite the Brady Center's approval of gun trace data. The BATFE says this at the link:

"Trace requests represent an unknown
portion of all the guns used in crimes.
ATF is not able to trace guns manufactured
before 1968, most surplus military
weapons, imported guns without
the importer's name, stolen guns, and
guns missing a legible serial number.
Police agencies do not request traces
on all firearms used in crimes. Not all
firearms used in crimes are recovered
so that a trace could be done and, in
some States and localities, the police
agencies may be able to establish
ownership locally without going to
the ATF."
The Brady Center cites the Roth report - which concludes
The ban’s impact on lethal gun violence is unclear because the short period since the enabling legislation’s passage created methodological difficulties for researchers. The National Institute of Justice is funding a followup study by the authors that is expected to be released in 2000. It will assess the longer term impacts of the ban and the effects of the other firearms provisions of Title XI. The long-term impacts of the ban could differ substantially from the short-term impacts.
The followup study from NIJ is here. In that document, section 6 (at page 45 of the .pdf file) is a discussion of tracing data. They note
6.2.2.4. Summary of the ATF Gun Tracing Analysis
Complexities arising from recent changes in the use of gun tracing by law enforcement warrant caution in the interpretation of ATF gun tracing data. Notwithstanding, the data suggest that use of AWs in crime, though relatively rare from the start, has been declining. The percentage of gun traces that were for AWs plummeted 70% between 1992-1993 and 2001-2002 (from 5.4% to 1.6%), and this trend did not begin until the year of the AW ban. On a year-to-year basis, AW traces generally increased less or declined by more than other gun traces. Moreover, in years when tracing volume declined – that is, years when changes in reporting practices were least likely to distort the data – traces of AWs fell 3 to 6 times faster than gun traces in general.
The drop in AW use seemed most apparent for APs and LCMM rifles (banned in 1998). Inferences were less clear for domestic ARs, but assessment of those guns is complicated
by the possible substitution of post-ban legal variations.
The authors summarize thusly:
Having said this, the ban’s impact on gun violence is likely to be small at best, and perhaps too small for reliable measurement. AWs were used in no more than 8% of gun crimes even before the ban. Guns with LCMs are used in up to a quarter of gun crimes, but it is not clear how often the outcomes of gun attacks depend on the ability to fire more than 10 shots (the current limit on magazine capacity) without reloading.
1.12.2006 3:00pm
Neal Lang (mail):
Most people define assault weapons, as military-style weaponry. The more specific definitions are provided by the laws themselves. These laws state limits on the magazine, the grip, fold-up stock and so on. An example is a Tec-9 or Uzi.

The military uses "Assault Rifles", not "Assault Weapons" which is non-definitive term dreamed-up by those who wish to "ban" all firearms.

As an example: "military-style weaponry" includes the M9 Beretta 92F 9mm semi-automatic Pistol, which is the "standard-issue" sidearm for ALL US Military. Apparently this "military-style weaponry" is not "banned" by any of the so-called "assault weapons" bans. Why? It is after all "military-style weaponry". On the otherhand, the the "standard-issue" longarm is (was) the M16 which is a true "Assault Rifle".

The "Assault Rifle" first appeared in WWII when the Nazi developed their Sturmgewehr 44. "Sturmgewehr" means "assault rifle". What differentiated the "Assault Rifle" from other "military-style weaponry" was the fact that it was a "full auto" capable "selective fire" weapon that fires neither a "pistol" nor "rifle" cartridge, but instead an "intermediate rifle cartridge". Neither "the magazine, nor the grip, nor fold-up stock" makes a firearm an "assault rifle", only its cartridge and its means of firing does.

"Full auto" firearms that fire a "pistol cartridge" are also "military-style weaponry" but are known a "sub-machine guns". Examples are the Thompson (.45ACP); MP-5N (9mm) and the Uzi (9mm) (the IDF's "Assault Rifle" is ths Galil (5.56mm). BTW, the true Uzi is regulated by the National Firearms Act of 1934, and not the "so called" - "Assault Weapons Ban". "Full auto" firearms that a "rifle cartridge" are known as either as a "machine gun" -example: M60 (.308Win) - or an "Automatic Rifle) -examples Browning Automatic Rifle "BAR" (.30-06Springfield) and the M14 (.308Win).

The Tec-9, BTW, is not used by any military organization that can think of (unless you consider the "Jamaican Posses" a military organizations). In function and design it differs very little from the M9 Beretta 92F 9mm semi-automatic Pistol, which is not considered an "Assault Weapon" despite being definitely "military-style weaponry". Go figure!
1.12.2006 3:04pm
Noah Klein (mail):
Neal and Luagha:

I have said what the law is and I given the reasons behind. Whether or not, you think Miller was decided correctly does not matter. Neal, your interpretation of Miller is not the correct no matter how many articles you cite. Miller's precedent is clear and its effect is clear.

Neal, once again you resort to ridiculous arguments and childishness, in trying to call me a tyrant or a supporter of tyranny. The rights of the people are given by G-d, but when society forms a social compact they cede some of their rights to the government so it can fulfill its purposes. This is what Locke says. We have an absolute right to keep and bear arms in nature, but when we formed our social compact the right was as stated in the amendment.

By the way, I just answered the question that was presented to me. If you want to dispute what the various assault weapons ban defines as assault weapons, you have many forums to do so, but I will not debate you anymore on those points.

Luagha, the words would not have an effect in law, if they were only explanatory. They have an effect in law and this effect was described in Miller and upheld in subsequent cases. I would be interested in any case where this interpretation was overturned, but I don't think it exists.

John:

Thank you for confronting the evidence that the Brady Center provided. I haven't checked your sources, but what say makes sense and I will examine this issue later and form an opinion on whether it is a good or bad public policy to ban assault weapons.

Noah
1.12.2006 4:26pm
juris imprudent (mail):
Noah,

Most people define assault weapons, as military-style weaponry.

The Colt 1911 is a military weapon (or at least was for many, many years). It is perfectly legal in CA. As is the M1A, which is derived from the M14, but does not suffer from those nasty cosmetics that you mention. The AR-15 which has never been used by the military, but looks like an M16, is banned in CA.

The ONLY definition of an "assault weapon" is based on entirely non-functional, cosmetic characteristics. You probably didn't know this. You probably don't even really care. That makes you the typical person - ignorant about what is involved but willing to condemn something you know nothing about.

By the time Miller was decided, the Bill of Rights had already been incorporated to apply to the states.

No, actually it hadn't, nor would the issue have been germane to Miller as the law in question was federal.

As to Hickman, I am talking about what the 9th Circuit claimed about Miller - and it was wildly wrong. Not simply the legal reasoning, but the undisputed facts of the case. Read Miller and then read what the 9th Circuit said about it in Hickman. Do you really think judges are infallible?

Aren't all the words of the constitution, except the preamble, meant to have an effect in law?

Certainly, but the dependent [militia] clause does not limit the RKBA of the people, nor does it grant a power to license/register guns to either the federal govt or the states. The states do have, under the general police power, the ability to regulate fireams insofar as allowed by state constitution, federal law and the U.S. Constitution. You surely accept that that power IS limited by the 1st, 4th, 5th Amdts, etc. - so why on earth claim that it isn't also limited by the 2nd?
1.12.2006 4:33pm
juris imprudent (mail):
Neal,

That is interesting, considering that American Revolution, the War of 1812, the Civil War, and the Spanish American War were all fought by basically militia. Who do think the "Rough Riders" were anyway?

They were, according to TR himself:

Our doubts were resolved when Congress authorized the raising of three cavalry regiments from among the wild riders and riflemen of the Rockies and the Great Plains... Wood and I were speedily commissioned as Colonel and Lieutenant-Colonel of the First United States Volunteer Cavalry. This was the official title of the regiment, but for some reason or other the public promptly christened us the "Rough Riders."

Thus they were not militia units, but U.S. Army (cavalry).

Although Union regiments were typically state-grouped, they served in the Army, whether enlisted or drafted, during the Civil War. Perhaps the Confederates were actually militia - that isn't a question I've really researched.

The War of 1812 is a very interesting case. The milita from several New England states refused to answer the call to service from Washington DC. In fact, those states seriously considered seceding over Mr. Madison's War.

As for the Revolutionary War, the militia was considered distinct from (and inferior to) the Continental Army. Service in the Continental Army was based on an enlistment.
1.12.2006 5:06pm
juris imprudent (mail):
Noah,

Miller's precedent is clear and its effect is clear.

Hardly. Miller is a muddle, and you can find law profs on both sides that will tell you so. It only applied to a federal law and said NOTHING to what the states may or may not do.

For example. To follow Miller literally - a firearm well suited to military use is EXEMPT from regulation, whereas hunting guns or antiques (i.e. not militarily useful) would be the ONLY guns that could be regulated. That was the test they proposed for the District Court to apply during evidentiary hearings (which never took place due to Miller's demise). This would have the effect of invalidating the statute in question - the 1934 NFA (since sawed-off shotguns has been used in the trench warfare of WWI).
1.12.2006 5:16pm
juris imprudent (mail):
Noah,

One more point about Miller. You say "I would be interested in any case where this interpretation was overturned, but I don't think it exists."

Let me direct your attention here. This is an article that describes how the lower courts have abused Miller. The coup de grace is Hickman. Then have a look at what the 5th Circuit said on the subject.
1.12.2006 5:24pm
Noah Klein (mail):
Juris:

You guys want to have a debate with somebody who isn't me. When I got into this debate, I saw that everyone else was arguing the gun rights side and I felt the gun control side should have some representation. I thought that since I believe in the government's power to regulate weapons I should defend. I have been stuck by my own choice in this debate for three days. There are some in America who think that all guns should be banned and there are some who feel if that right is threatened in the least than it is tyranny. Then there are others that feel that some limits on weapons, like the Brady law, are good things, but don't agree with outright bans. I am sorry I am not the ban all weapons guy that you so want to debate and defeat.

About the definition of "assault weapons," I didn't make it up. I don't really care how you define assault weapons. I would care, if I thought it was good public policy, what the law would define falls under the ban. I provided a definition that I saw used by gun control advocates. They made up the word, they must be able to define and they have in the laws that they passed. You don't like it, but you don't like the whole idea of banning certain weapons.

So what do you care what the definition of assault weapons are? It doesn't further cause or help convince people that Colt 1911 .45 is still the sidearm used by all the military or that a Tec-9 is not being used by the military, but an Uzi is used by the Israeli (although I don't know if they use it anymore) military. Or showing people that M14/M1A is allowed but the AR-15 (which no military uses, but is based off of the M-16) is banned. You're not going to convince them there. The people who voted for a ban, if there is ban, like in California, believe that gun control reduces crime. All you going to end showing these people is that they haven't yet banned all the weapons they should. You are going to convince them by showing them that such bans do not reduce crime or that concealed carry laws do reduce crime.

You have to remember your audience. In a large state with big cities that dominate like California, New York and Massachusetts, people do not have a facility with weapons. They've seen it on T.V. and they've heard about, but the likelihood that they shot a weapon or that they have a facility with weapons is low. Thus they really don't care about the difference and they believe they have the right to regulate weapons, which is backed up by the Supreme Court.

Yet even with all this your argument which is your most convincing is saved for last. First, you always dispute the legality of such regulation. Now as to this you never convince me that the dependent clause in the second amendment has no effect and I will never convince you that it has a limiting effect. The Court has for generations backed my position. Whether they felt that it dealt with military weapons and non-military weapons can be banned or the other way around or neither way, they still believe that it limits the RKBA. You're not going to change people's minds on this issue. This is basic to how they read the constitution.

Your second argument is even less convincing. Nobody who is not an activist on this issue researches how it applies to every law. That is not to say they don't research weapons. I remember many a night on my computer where I and others have gone to sites related to a description of weapons and prices and so on.

Your final argument is the most convincing, if you provide evidence to support it. People who never have shot or seen a weapon and some who have fear them. They know it only as a dangerous tool to be used only in the case of absolute necessity. People who have grown up with weapons know that when responsibly handled they can be tools that while dangerous are fun. First, I would suggest that you have to approach the debate knowing that your audience did not grow up with weapons and may have biases against them. Therefore, I would suggest you talk to them about how you use for what purposes and how you are responsible with them. Then, I would suggest you make the crime argument your main point. Like I said above, you're not going to convince moderates on the issue that the right is absolute and they don't care about the specifics with regards to the weapon. Lead with the crime thing. This is what they're worried about when they pass bans. Show them the evidence, if it exists, that they're wrong. The activists in gun control will reject, but you don't need to convince them. You need to convince the moderates.

With this suggestion, I will leave you because I obviously can't add anymore to the debate. Thank you, those of you who have tried to engage me as a person with a legitimate viewpoint. To those who reject and insult and so on, I say go ahead, but you won't get anywhere beyond angering people and making them reject your position even more.

Noah
1.12.2006 7:38pm
Neal Lang (mail):
They were, according to TR himself:
Our doubts were resolved when Congress authorized the raising of three cavalry regiments from among the wild riders and riflemen of the Rockies and the Great Plains... Wood and I were speedily commissioned as Colonel and Lieutenant-Colonel of the First United States Volunteer Cavalry. This was the official title of the regiment, but for some reason or other the public promptly christened us the "Rough Riders."

Thus they were not militia units, but U.S. Army (cavalry).

Actually, they were National Guard (i.e. militia) by definition and Federal Code:
With the declaration of war with Spain in April 1898, 164,932 National Guardsmen entered Federal service. The 1st New Mexico Cavalry entered Federal service as the 2nd Squadron, 1st U.S. Volunteer Cavalry, better known as the "Rough Riders." Theodore Roosevelt conceived the idea of raising a cavalry regiment recruited from businessmen, cowboys and outdoorsmen. Roosevelt, a former New York National Guardsman, helped to organize the regiment and was appointed its lieutenant colonel. After training in Texas and Florida, the Rough Riders landed in Cuba, without their horses, on June 22, 1898. It was during the Battle of San Juan Hill, on July 1, that the Rough Riders, under the command of Lt. Col. Roosevelt, made their mark in American military history. Ordered to seize Kettle Hill in support of the main attack, the Rough Riders fought their way to the top despite heavy enemy fire. New Mexico's F and G Troops were among the first to reach the top of Kettle Hill. After taking the hill, the Rough Riders continued their attack, seizing the heights overlooking the city of Santiago. The American victory led to the Spanish surrender two weeks later. The gallant heritage of the 2nd Squadron of the Rough Riders is perpetuated by the 200th Air Defense Artillery, New Mexico Army National Guard.

In Cuba they fought as "unmounted cavalry", their horses not making the trip from Tampa.
TITLE 10 Subtitle A PART I CHAPTER 13
§ 311. Militia: composition and classes

(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.

I, in fact, as a youth, served in an Atlantic City, NJ militia unit that saw service in the Spanish American War - the Morris Guards.
Although Union regiments were typically state-grouped, they served in the Army, whether enlisted or drafted, during the Civil War. Perhaps the Confederates were actually militia - that isn't a question I've really researched.

Actually, virtually all the Union Army consisted "militia" units raised by the States. For instance, the Irish Brigade, New York's "Fighting 69th", who suffered nearly 70% casualties in the Battle of Fredericksburg was a militia unit.
SHORTLY after the battle of Bull Run, the ninety-day enlistments of the men of the 69th New York State Militia ran out. The regiment was re-enlisted and re-formed as the 69th New York State Volunteers, with Meagher being offered its colonelcy. Although he never accepted the position as the Sixty-ninth's commander, Meagher was commissioned colonel, and the War Department in Washington authorized him "to arrange with the colonels commanding of four other regiments to be raised to form a brigade, the brigadier-general for which will be designated hereafter by the proper authority of Government."

Colonel Meagher resolved to form the Irish Brigade. The name was not chosen merely to describe the nationality of the men who would comprise this body of men, it was also chosen in honor and remembrance of the men who had gained such a stainless reputation for Irish valor in the preceding century, and to serve as a reminder of the standard to be upheld. From the onset he intended the brigade to be an elite "legion," to be made up of two New York, one Boston, and one Philadelphia infantry regiments, with cavalry and artillery battalions forming the fifth regiment. Due to the quotas imposed on the states by the Federal Government, the governors of Massachusetts and Pennsylvania, however, were unwilling to give credit for their soldiers to New York and their Irish regiments, the 28th Massachusetts and the 69th Pennsylvania, were initially refused. Though the cavalry never materialized, four small companies of artillery were raised and mustered in as the 2nd New York Light
Artillery Battalion. Thus the Irish Brigade originally consisted of the 69th and 88th New York regiments, the officers of both being mostly veterans of the 69th Militia, the 63rd New York, in the process of being raised when the brigade was being planed, and the 2nd New York Light Artillery Battalion.

The "quotas" imposed on the States by the Federal government were "militia" quotas, hence the reference to the State names in virtually all the Union Regiments. The same system was used by the Confederacy. For instance, Virginia's 1st Brigade was raised from the "cadets" and staff from VMI. Uniforms, weapons and kits were either supplied by the militiaman, himself, or by the town or neighbor where their companies were raised. This created a supply nightmare, as various units carried different caliber weapons.

Aside: The "Fighting 69th" Irish Brigade become part of the 169th New York National Guard Regiment and was matched with the Alabama National Guard that was formed from the Alabama militia brigade that nearly anililated them in the "cornfield" at Fredericksburg, and a California National Guard Regiment to form the American "Rainbow Division", which was sent to France to fight the "Huns" in the "War to End Wars".
As for the Revolutionary War, the militia was considered distinct from (and inferior to) the Continental Army. Service in the Continental Army was based on an enlistment.

The "Continental Army" consisted of mostly New England militia units from 1775-77. During this time militia units captured Fort Ticonderoga, Crown Point, Fort Ann, and the town of St. John (Ethan Allen's Green Mountain Boys), and fought the Battles of Concord, Lexington, and Breed's before driving the Brits out of Boston! The Battle of Long Island was fought with mostly 10,000 militia troops, most from New York and also from Connecticut, Delaware and Maryland. The Battle of Harlem Heights was also fought with mostly militia troops. In the Battle of Pell's Point 750 militia troops from Marblehead, Massachusetts (The Marbleheaders) held off 3,000 British and Hessian Regulars allowing Washington and the Continental Army to retreat to upstate New York, saving the Revolution.
History

As early as 1645 in the Massachusetts Bay Colony, some men were selected from the general ranks of town-based "training bands" to be ready for rapid deployment.

The militia in the Province of Massachusetts had a long history of extended conflict. (See King Philip's War, French and Indian Wars, and Battle of Lexington and Concord.) Every generation of New Englander had known fighting, every town had a militia, and every man between 16 and 60 years of age was asked to join. Most of these men were farmers. Many were descendants of the few original settlers of each town, and so it was very common to be fighting alongside cousins and in-laws.

Some towns in Massachusetts had a long history of designating a portion of their militia as Minutemen, but others prefered to keep their entire militia in a single unit. After The Powder Alarm in the fall of 1774, Patriot leaders in the newly formed Massachusetts Provincial Congress recommended that all militias contain minute companies -- special units within the militia system whose members underwent additional training and to hold themselves ready to turn out quickly ("at a minute's notice") for emergencies. Some towns followed this recommendation and altered their unit structures but some took no action.

The Minutemen were usually 25 years of age or younger, and they were chosen for their enthusiasm, reliability, and strength. They were the first armed militia to arrive or await a battle. Officers were elected by popular vote, and each unit drafted a formal written covenant to be signed upon enlistment. They typically assembled four times per year for training during peacetime. It was common, sometimes even in the middle of battle, for officers to make decisions through consultation with their men as opposed to giving orders to be followed without question.

Popular histories of the Battle of Lexington and Concord in 1775, the first battle of the American Revolutionary War, have often labelled all the irregulars on the American side as Minutemen, most notably Captain John Parker's Lexington Militia, but, at the time of the battle, all of Lexington's militiamen were organized into a single large unit and were still called by the archaic name of "town training band."

Other colonies, faced with similar problems, had organized similar minute companies. Over time, minutemen became a generic term for any American militia.
[edit]

Motivation

The New England town meeting style of local decision-making in combination with the colonial legislature meant that, for nearly all functions of government, these men had already experienced generations of self-rule. Even though most of them could not express lofty sentiments about the rights of man and the purposes of government, they knew that the same British Army of professional soldiers who had once fought with them against a common enemy was now in their land to take something important away from them. One Massachusetts man used the phrase "An Englishman's home is his castle" when he explained to his friends why he had barricaded himself behind his front door to fight the British Army as it passed by during the final phase of the Battle of Lexington and Concord. The typical individual American Patriot in Massachusetts fought for a political idea even at this first stage of the war when independence from Great Britain was not yet a common sentiment.
[edit]

Equipment, training, and tactics

Most Colonial militia units were provided neither arms nor uniforms, and so had to equip themselves. Many simply wore their own farmers' or workmans' clothes, while others had buckskin hunting outfits. Some added Indian-style touches to intimidate the enemy, even including war-paint. Most used hunting rifles, which did not have bayonets, but were accurate at long range.

The Continental Army regulars received European-style military training later in the American Revolutionary War, but the militias did not get much of this. Rather than fight formal battles in the traditional dense lines and columns, they were better when used as irregulars, primarily as skirmishers and sharpshooters.

Their experience suited irregular warfare. Most were familiar with frontier hunting. The Indian Wars, and especially the recent French and Indian War, had taught both the men and officers the value of irregular warfare, while many British troops fresh from Europe were less familiar with this. The wilderness terrain that lay just beyond many colonial towns, very familiar to the local minuteman, favored this style of combat.

The rifled musket used by most minutemen was also well suited to this role. The "rifling" (grooves inside the barrel) gave it a much greater range than the smoothbore musket, although it took much longer to load. Because of the lower rate of fire, rifles weren't used by regular infantry, but were preferred for hunting. When performing as skirmishers, the minutemen could fire and fall back behind cover or other troops before the British could get into range. The increased range and accuracy of the rifle, along with a lifetime of hunting to develop marksmanship, earned minutemen sharpshooters a deadly reputation.

Ammunition and supplies were not only in short demand, but were constantly being seized by British patrols. As a precaution, these items were often hidden or left behind by minutemen in fields or wooded areas. Other popular concealment methods were to hide items underneath floorboards in houses and barns. From: Minutemen (militia)

Virtually all the Continental Army "Regulars" started their service as Minutemen Militia. But for these Militia, the United States of America would not exist.
1.12.2006 8:25pm
Neal Lang (mail):
I have said what the law is and I given the reasons behind. Whether or not, you think Miller was decided correctly does not matter. Neal, your interpretation of Miller is not the correct no matter how many articles you cite. Miller's precedent is clear and its effect is clear.

Miller was not "decided" - it was "remandated" to the Federal District Court to be "decided". Don't take my word for it, read the Opinion yourself: UNITED STATES v. MILLER, 307 U.S. 174 (1939)
Mr. Miller and friend did not spend one day in jail or pay one cent in fines as a result of being convicted of violatng the National Firearms Act of 1934. Those are the facts of the matter, regardless of what you claim "the law is". As for my "interpretation of Miller", it is not just mine but the also that of the majority of legal scholars in the US.

First, your "textual analysis" is all wet!

A. Text

I begin with the appeal to text. Recall the Second Amendment: "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." No one has ever described the Constitution as a marvel of clarity, and the Second Amendment is perhaps one of the worst drafted of all its provisions. What is special about the Amendment is the inclusion of an opening clause -- a preamble, if you will -- that seems to set out its purpose. No similar clause is part of any other Amendment, [38] though that does not, of course, mean that we do not ascribe purposes to them. It would be impossible to make sense of the Constitution if we did not engage in the ascription of purpose. Indeed, the major debates about The First Amendment arise precisely when one tries to discern a purpose, given that "literalism" is a hopelessly failing approach to interpreting it. We usually do not even recognize punishment of fraud -- a classic speech act -- as a free speech problem because we so sensibly assume that the purpose of the First Amendment could not have been, for example, to protect the circulation of patently deceptive information to potential investors in commercial enterprises. The sharp differences that distinguish those who would limit the reach of the First Amendment to "political" speech from those who would extend it much further, encompassing non-deceptive commercial speech, are all derived from different readings of the purpose that underlies the raw text. [39]

A standard move of those legal analysts who wish to limit the Second Amendment's force is to focus on its "preamble" as setting out a restrictive purpose. Recall Laurence Tribe's assertion that the purpose was to allow the states to keep their militias and to protect them against the possibility that the new national government will use its power to establish a powerful standing army and eliminate the state militias. This purposive reading quickly disposes of any notion that there is an "individual" right to keep and bear arms. The right, if such it be, is only a states's right. The consequence of this reading is obvious: the national government has the power to regulate--to the point of prohibition--private ownership of guns, since that has, by stipulation, nothing to do with preserving state militias. This is, indeed, the position of the ACLU, which reads the Amendment as protection only the right of "maintaining an effective state militia...[T]he individual's right to keep a nd bear arms applies only to the preservation or efficiency of a well-regulated [state] militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected." [40]

This is not a wholly implausible reading, but one might ask why the Framers did not simply say something like "Congress shall have no power to prohibit state-organized and directed militias." Perhaps they in fact meant to do something else. Moreover, we might ask if ordinary readers of the late 18th Century legal prose would have interpreted it as meaning something else. The text at best provides only a starting point for a conversation. In this specific instance, it does not come close to resolving the questions posed by federal regulation of arms. Even if we accept the preamble as significant, we must still try to figure out what might be suggested by guaranteeing to "the people the right to keep and bear arms;" moreover, as we shall see presently, even the preamble presents unexpected difficulties in interpretation.

Notes:
38. Cf., e.g. the patents and copyrights clause, which sets out the power of Congress "[t]o promote the progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. Const. art. I Sec. 8.

39. For examples of this, see F. Schauer, Freedom of Speech: A Philosophical Enquiry (1982); Levinson, First Amendment, Freedom of Speech, Freedom of Expression: Does it Matter What We Call It? 80 Nw. U.L.Rev. 767 (1985)(reviewing M. Redish, Freedom of Expression: A Critical Analysis (1984)).

40. ACLU Policy #47. I am grateful to Joan Mahoney, a member of the national board of the ACLU, for providing me with a text of the ACLU's current policy on gun control.

As you can see, your "textual analysis" is "Bogus". Next, you "structural analysis", that somehow the 2nd Amendment was a means of the Federal government to "regulate" - "the People's right to keep and bear".
C. Structure

We have also passed imperceptibly into a form of structural argument, for we see that one aspect of the structure of checks and balances within the purview of 18th century thought was the armed citizen. That is, those who would limit the meaning of the Second Amendment to the constitutional protection of state-controlled militias agree that such protection rests on the perception that militarily competent states were viewed as a potential protection against a tyrannical national government. Indeed, in 1801 several governors threatened to call out state militias if the Federalists in Congress refused to elect Thomas Jefferson president. [70] But this argument assumes that there are only two basic components in the vertical structure of the American polity--the national government and the states. It ignores the implication that might be drawn from the Second, Ninth, and Tenth Amendments; the citizenry itself can be viewed as an important third component of republican governance insofar as it stands ready to defend republican liberty against the depredations of the other two structures, however futile that might appear as a practical matter.

One implication of this republican rationale for the Second Amendment is that it calls into question the ability of a state to disarm its citizenry. That is, the strongest version of the republican argument would hold it to be a "privilege and immunity of United States citizenship"--of membership in a liberty-enhancing political order -- to keep arms that could be taken up against tyranny wherever found, including, obviously, state government. Ironically, the principal citation supporting this argument is to Chief Justice [Roger] Taney's egregious opinion in Dred Scott, [71] where he suggested that an uncontroversial attribute of citizenship, in addition to the right migrate from one state to another, was the right to possess arms. The logic of Taney's argument at the point seems to be that, because it was inconceivable that the Framers could have genuinely imagined blacks having the right to possess arms, it follows that they could not have envisioned them as being citizens, since citizenship entailed the right. Taney's seeming recognition of a right to arms is much relied on by opponents of gun control. [72] Indeed, recall Madison's critique, in Federalist Numbers Ten and Fourteen, of republicanism's traditional emphasis on the desirability of small states as preservers of republican liberty. He transformed this debate by arguing that the states would be less likely to preserve liberty because they could so easily fall under the sway of a local dominant faction, whereas an extended republic would guard against this danger. Anyone who accepts the Madisonian argument could scarcely be happy enhancing the power of the states over their own citizens; indeed, this has been one of the great themes of American constitutional history, as the nationalism of the Bill of Rights has been deemed necessary in order to protect popular liberty against state depredation.

Notes:

70. See D. Malone, 4 Jefferson and His Times: Jefferson the President: First Term, 1801-1805, AT 7-11 (1970)(republican leaders ready to use state militias to resist should lame duck Congress attempt to violate clear dictates of Article II by designating someone other than Thomas Jefferson as President in 1801).

71. Scott v. Sanford 60 U.S. (19 How.) 393,417 (1857).

72. See, e.g., Featherstone, Gardiner &Dowlut, The Second Amendment to the United States Constitution Guarantees and Individual Right to Keep and Bear Arms, supra note 27, at 100.

As you can see, your "structural analysis" is as "Bogus" as your "textual analysis". Next, your "doctrinal analysis" of Supreme Court decisions is particular bad, to wit:
D. Doctrine

Inevitably one must at least mention, even though there is not space to discuss fully, the so-called incorporation controversy regarding the application of the Bill of Rights to the states through the Fourteenth Amendment. It should be no surprise that the opponents of gun control appear to take a "full incorporationist" view of that Amendment. [73] They view the privileges and immunities clause, which was eviscerated in the Slaughterhouse Cases, [74] as designed to require the states to honor the rights that had been held, by Justice Marshall in Barron v. Baltimore in 1833, [75] to restrict only the national government. In 1875 the Court stated, in United States v. Cruickshank, [76] that the Second Amendment, insofar as it grants any right at all, "means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government..." Lest there be any remaining doubt on this point, the Court specifically cited the Cruickshank language eleven years later in Presser v. Illinois, [77] in rejecting the claim that the Second Amendment served to invalidate an Illinois statute that prohibited "any body of men whatever, other than the regular organized volunteer militia of this State, and the troops of the United States....to drill or parade with arms in any city, or town, of this State, without the license of the Governor thereof..." [78]

The first "incorporation decision," Chicago, B &Q.R.Co. v. Chicago, [79] was not delivered until eleven years after Presser; one therefore cannot know if the judges in Cruickshank and Presser were willing to concede that any of the amendments comprising the Bill of Rights were anything more than limitations on congressional or other national power. The obvious question, given the modern legal reality of the incorporation of almost all of the right s protected by the First, Fourth, Fifth, Sixth, and Eighth Amendments, is what exactly justifies treating the Second Amendment as the great exception. Why, that is, could Cruickshank and Presser be regarded as binding precedent any more than any of the other "pre-incorporation" decisions refusing to apply given aspects of the BIll of Rights against the states?

If one agrees with Professor Tribe that the Amendment is simply a federalist protection of state rights, then presumably there is nothing to incorporate. [80] If, however, one accepts the Amendment as a serious substantive limitation on the ability of the national government to regulate the private possession of arms based on either the "individualist" or the "new-republican" theories sketched above, then why not follow the "incorporationist" logic applied to other amendments and limit the states as well in their powers to regulate (and especially to prohibit) such possession? The Supreme Court has almost shamelessly refused to discuss the issue, [81] but that need not stop the rest of us.

Returning, though, to the question of Congress' power to regulate the keeping and bearing of arms, one notes that there is, basically, only one modern case that discusses the issue, United States v. Miller, [82] decided in 1939 . Jack Miller was charged with moving a sawed-off shotgun in interstate commerce in violation of the National Firearms Act of 1934. Among other things, Miller and a compatriot had not registered the firearm, as required by the Act. The court below ha d dismissed the charge, accepting Miller's argument that the Act violated the Second Amendment.

The Supreme Court reversed unanimously, with the arch- conservative Justice McReynolds writing the opinion. [83] Interestingly enough, he emphasized that there was no evidence showing that a sawed- off shotgun "at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia." [84] And "[c]ertainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." [85] Miller might have had a tenable argument had he been able to show that he was keeping or bearing a weapon that clearly had a potential military use. [86]

Justice McReynolds went on to describe the purpose of the Second Amendment as "assur[ing] the constitution and render[ing] possible the effectiveness of [the militia]. [87] He contrasted the Militia with troops of a standing army, which the Constitution indeed forbade the states to keep without the explicit consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion." [88] McReynolds noted further that "the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators [all] [s]how plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense." [89]

It is difficult to read Miller as rendering the Second Amendment meaningless as a control on Congress. Ironically, MIller can be read to support some of the most extreme anti-gun control arguments, e.g., that the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly relevant to modern warfare, including, of course, assault weapons. Arguments about the constitutional legitimacy of a prohibition by Congress of private ownership of handguns or, what is much more likely, assault rifles, might turn on the usefulness of such guns in military settings.

Notes:

73. See, e.g..., Halbrook, The Fourteenth Amendment and the Right to Keep and Bear Arms: The Intent of the Framers, in The Right to Keep and Bear Arms, supra note 27, at 79. Not the least of the ironies observed in the debate about the Second Amendment is that NRA conservatives like Senator Hatch could scarcely have been happy with the wholesale attack leveled by former Attorney General Meese on the incorporation doctrine, for here is one area where some "conservatives" may in fact b e more zealous adherents of that doctrine than are most liberals, who, at least where the Second Amendment is concerned, have a considerably more selective view of incorporation.

74. 83 U.S. 36 (1873).

75. 32 U.S. (7 Pet.)243 (1833).

76. 92 U.S. 542, 553 (1875).

77. 116 U.S. 252, 267 (1886). For a fascinating discussion of Presser, see Larue, supra note 13, at 386-90.

78. 116 U.S. at 253. There is good reason to believe that this statute, passed by the Illinois legislature in 1879, was part of an effort to control (and indeed, suppress) widespread labor unrest linked to the economic troubles of the time. For the background of the Illinois statute, see P. Avrich, The Haymarket Tragedy 45 (1984): "As early as 1875, a small group of Chicago socialists, most of them German immigrants, had formed an armed club to protect the workers against police and military assaults, as well as against physical intimidation at the polls. In the eyes of its supporters...the need for such a group was amply demonstrated by the behavior of the police and [state- controlled] militia during the Great Strike of 1877, a national protest by labor triggered by a ten percent cut in wages by the Baltimore and Ohio Railroad, which included the breaking up of workers' meetings, the arrest of socialist leaders, [and] the use of club, pistol and bayonet against strikers and their supporters...Workers...were resolved never again to be shot and beaten without resistance. Nor would the stand idly by while their meeting places were invaded or their wives and children assaulted. The were determined , as Albert Parsons [a leader of the anarchist movement in Chicago] expressed it, to defend both 'their persons and their rights.'"

79. 166 U.S. 226 (1897) (protecting rights of property owners by requiring compensation for takings of property).

80. My colleague Douglas Laycock has reminded me that a similar argument was made by some conservatives in regard to the establishment clause of the First Amendment. Thus, Justice Brennan noted that "[i]t has been suggested, with some support in history, that absorption of the First Amendment's ban against congressional legislation 'respecting an establishment of religion' is conceptually impossible because the Framers meant the Establishment Clause also to foreclose any attempt by Congress to disestablish the official state churches." Abington School District v. Schempp, 374 U.S. 203, 254 (1963) (Brennan, J., concurring) (emphasis added). According to this reading, it would be illogical to apply the establishment clause against the states "because that clause is not one of the provisions of the Bill of Rights which in terms protects a 'freedom' of the individual," id. at 256, inasmuch as it is only a federalist protection of states against a national establishment (or disestablishment). "The fallacy in this contention," responds Brennan, "is that it underestimates the role of the Establishment Clause as a co-guarantor, with the Free Exercise Clause, of religious liberty." Id. Whatever the sometimes bitter debates about the precise meaning of "establishment," it is surely the case that Justice Brennan, even as he almost cheerfully concedes that at one point in our history the "states-right" reading of the establishment clause would have been thoroughly plausible, expresses what has become the generally accepted view as to the establishment clause being some kind of limitation on the state as well as on the national government. One may wonder whether the interpretive history of the establishment clause might have any lessons for the interpretation of the Second Amendment.

81. It refused, for example, to review the most important modern gun control case, Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983), where the Seventh Circuit Court of Appeal s upheld a local ordinance in Morton Grove, Illinois, prohibiting the possession of handguns within its borders.

82. 307 U.S. 174 (1939.

83. Justice Douglas, however, did not participate in the case.

84. Miller, 307 U.S. at 178.

85. Id. at 178 (citation omitted).

86. Lund notes that "commentators have since demonstrated that sawed- off or short barrelled shotguns are commonly used as military weapons." Lund, infra note 96, at 109.

87. 307 U.S. at 178.

88. Id. at 179.

89. Id.

As you can see your "doctrinal analysis" does not hold water. Finally, let's look at your "prudentialism".
E. Prudentialism

WE have looked at four of Bobbitt's categories -- text, history, structure, and case law doctrine -- and have seen, at the very least, that the arguments on behalf of a "strong" Second Amendment are stronger than many of us might wish were the case. This, then, brings us up to the fifth category, prudentialism, or an attentiveness to the practical consequences, which is clearly of great importance in any debate about gun control. The standard argument in favor of strict control and, ultimately, prohibition of private ownership focuses on the extensive social costs of widespread distribution of firearms. Consider, for example, a recent speech given by former Justice Lewis Powell to the American Bar Association.He noted that over 40, 000 murders were committed in the United States in 1986 and 1987, and that fully sixty percent of them were committed with firearms. [90] Justice Powell indicated that "[w]ith respect to handguns," in contrast "to sporting rifles and shotguns [,] it is not easy to understand why the Second Amendment, or the notation of liberty, should be viewed as creating a right to own and carry a weapon that contributes so directly to the shocking number of murders in our society." [91]

It is hard to disagree with Justice Powell; it appears almost crazy to protect as a constitutional right something that so clearly results in extraordinary social cost with little, if any, compensating social advantage. Indeed, since Justice Powell's talk, the subject of assault rifles has become a staple of national discussion, and the opponents of regulation of such weapons have deservedly drawn the censure of even conservative leaders like William Bennett. It is almost impossible to imagine that the judiciary would strike down a determination by Congress that the possession of assault weapons should be denied to private citizens.

Even if one accepts the historical plausibility of the arguments advanced above, the overriding temptation is to say that times and circumstances have changed and that there is simply no reason to continue enforcing an outmoded, and indeed, dangerous, understanding of private rights against public order. This criticism is clearest in regard to the so-called individualist argument, for one can argue that the rise of a professional police force to enforce the law has made irrelevant, and perhaps even counter-productive, the continuation of a strong notion of self-help as the remedy for crime. [92]

I am not unsympathetic to such arguments. It is no purpose of this essay to solicit membership for the National Rifle Association or to express any sympathy for what even Don Kates, a strong critic of the conventional dismissal of the Second Amendment, describes as "the gun lobby's obnoxious habit of assailing all forms of regulation on 2nd Amendment grounds." [93] And yet... Circumstances may well have changed in regard to individual defense, although we ignore at our political peril the good faith belief of many Americans that they cannot rely on the police for protection against a variety of criminals. Still, l et us assume that the individualist reading of the Amendment has been vitiated by changing circumstances. Are we quite so confident that circumstances are equally different in regard to the republican rationale outlined earlier?

One would, of course, like to believe that the state, whether at the local or national level, presents no threat to important political values, including liberty. But our propensity to believe that this is the case may be little more than a sign of how truly different we are from our radical forbearers. I do not want to argue that the state is necessarily tyrannical; I am not an anarchist. But it seems foolhardy to assume that the armed state will necessarily be benevolent. The American political tradition is, for good or ill, based in large measure on a healthy mistrust of the state. The development of widespread suffrage and greater majoritarianism in our polity is itself no sure protection, at least within republican theory. The republican theory is predicated on the stark contrast between mere democracy, where people are motivated by selfish personal interest, and a republic, where civic virtue, both in common citizen and leadership, tames selfishness on behalf of the common good. In any event, it is hard for me to see how one can argue that circumstances have so changed us as to make mass disarmament constitutionally unproblematic. [94]

Indeed, only in recent months have we seen the brutal suppression of the Chinese student demonstrations in Tiananmen Square. It should not surprise us that some NRA sympathizers have presented that situation as an abject lesson to those who unthinkingly support the prohibition of private gun ownership. "[I]f all Chinese citizens kept arms, their rulers would hardly have dared to massacre the demonstrators... The private keeping of hand-held personal firearms is within the constitutional design for a counter to government run amok... As the Tianamen Square tragedy showed so graphically, AK 47's fall into that category of weapons, and that is why they are protected by the Second Amendment." [95] It is simply silly to respond that small arms are irrelevant against nuclear armed states; Witness contemporary Northern Ireland and the territories occupied by Israel, where the sophisticated weaponry of Great Britain and Israel have proved almost totally beside the point. The fact that these may not be pleasant examples does not affect the principal point, that a state facing a totally disarmed population is in a far better position, for good or ill, to suppress popular demonstrations and uprisings than one that must calculate the possibilities of its soldiers and officials being injured or killed. [96]

Notes:

90. L. Powell, Capital Punishment, Remarks Delivered to the Criminal Justice Section, ABA 10 (Aug 7, 1988).

91. Id. at 11.

92. This point is presumably demonstrated by the increasing public opposition of police officials to private possession of handguns (not to mention assault rifles).

93. D. Kates, Minimalist Interpretation of the Second Amendment 2 (draft Sept. 29, 1986) (unpublished manuscript available from author).

94. See Lund, supra note 96, at 116.

95. Wimmershoff-Caplan, The Founders and the AK-47, Washington Post, July 6, 1989, at A18, col. 4, reprinted as Price of Gun Deaths Small Compared to Price of Liberty, Austin-American Statesman, July 11, 1989, at A11. Ms. Wimmershoff-Caplan is identified as a "lawyer in New York" who is "a member of the National Board of the National Rifle Association." Id. One of the first such arguments in regard to the events in Tianamen Square was made by William A. Black in a letter, Citizens Without Guns, N.Y. Times, June 18, 1989, at D26, col. 6. Though describing himself as "find[ing] no glory in guns [and] a profound anti-hunter," he nonetheless "stand[s] with those who would protect our right to keep and bear arms" and cited for support the fact that "none [of the Chinese soldiers] feared bullets: the citizens of China were long ago disarmed by the Communists." "Who knows," he asks, "what the leaders and the military and the police of our America will be up to at some point in the future? We need an armed citizenry to protect our liberty." As one might expect, such arguments draw heated responses. See Rudlin, The Founders and the AK-47 (Cont'd) Washington Post, July 20, 1989 at A22, col 3. Jonathan Rudlin accused Ms. Wimmershoff-Caplan of engaging in Swiftian satire, as no one could "take such a brilliant burlesque seriously." Neal Knox, however, endorsed her essay in full, adding the Holocaust to the list of examples: "Could the Holocaust have occurred if Europe's Jews had owned thousands of then-modern military Mauser bolt action rifles?" See also, Washington Post, July 12, 1989, at A22, for other letters.

96. See Lund, The Second Amendment, Political Liberty, and the Right to Self-Preservation, 39 Ala. L. Rev. 103 (1987) at 115: "The decision to use military force is not determined solely by whether the contemplated benefits can be successfully obtained through the use of available forces, but rather determined by the ratio of those benefits to the expected costs. It follows that any factor increasing the anticipated cost of a military operation makes the conduct of that operation incrementally more unlikely. This explained why a relatively poorly armed nation with a small population recently prevailed in a war against the United States, and it explains why governments bent on the oppression of their people almost always disarm the civilian population before undertaking more drastically oppressive measures." I should note that I wrote (and titled) this article before reading Lund's article, which begins, "The Second Amendment to the United States Constitution h as become the most embarrassing provision of the Bill of Rights." I did hear Lund deliver a talk on the Second Amendment at the University of Texas Law School during the winter of 1987, which may have penetrated my consciousness more than I realized while drafting this article.

I knew facts are terrible things, but it is not my fault if "You can't handle the truth!"
Neal, once again you resort to ridiculous arguments and childishness, in trying to call me a tyrant or a supporter of tyranny. The rights of the people are given by G-d, but when society forms a social compact they cede some of their rights to the government so it can fulfill its purposes. This is what Locke says. We have an absolute right to keep and bear arms in nature, but when we formed our social compact the right was as stated in the amendment.

Apparently my "ridiculous arguments and childishness" has borne fruit, as you now have changed your tune on the source of our rights. Now, you need understand that that "God given, unalienable rights" cannot never be "ceded".
unalienable, adj. Not to be separated, given away, or taken away; inalienable: “All of them... claim unalienable dignity as individuals” (Garrison Keillor).

When men come together and institute a government, they do so in order to "secure their rights of life, liberty, and the pursuit of happiness (property)". They do not cede any of their rights, but their do cede a limited amount of "sovereignty" (a.k.a - "power and authority").
Sec. 4. TO understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.

Sec. 87. Man being born, as has been proved, with a title to perfect freedom, and an uncontrouled enjoyment of all the rights and privileges of the law of nature, equally with any other man, or number of men in the world, hath by nature a power, not only to preserve his property, that is, his life, liberty and estate, against the injuries and attempts of other men; but to judge of, and punish the breaches of that law in others, as he is persuaded the offence deserves, even with death itself, in crimes where the heinousness of the fact, in his opinion, requires it. But because no political society can be, nor subsist, without having in itself the power to preserve the property, and in order thereunto, punish the offences of all those of that society; there, and there only is political society, where every one of the members hath quitted this natural power, resigned it up into the hands of the community in all cases that exclude him not from appealing for protection to the law established by it. And thus all private judgment of every particular member being excluded, the community comes to be umpire, by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community, for the execution of those rules, decides all the differences that may happen between any members of that society concerning any matter of right; and punishes those offences which any member hath committed against the society, with such penalties as the law has established: whereby it is easy to discern, who are, and who are not, in political society together. Those who are united into one body, and have a common established law and judicature to appeal to, with authority to decide controversies between them, and punish offenders, are in civil society one with another: but those who have no such common appeal, I mean on earth, are still in the state of nature, each being, where there is no other, judge for himself, and executioner; which is, as I have before shewed it, the perfect state of nature.

Sec. 88. And thus the common-wealth comes by a power to set down what punishment shall belong to the several transgressions which they think worthy of it, committed amongst the members of that society, (which is the power of making laws) as well as it has the power to punish any injury done unto any of its members, by any one that is not of it, (which is the power of war and peace;) and all this for the preservation of the property of all the members of that society, as far as is possible. But though every man who has entered into civil society, and is become a member of any commonwealth, has thereby quitted his power to punish offences, against the law of nature, in prosecution of his own private judgment, yet with the judgment of offences, which he has given up to the legislative in all cases, where he can appeal to the magistrate, he has given a right to the common-wealth to employ his force, for the execution of the judgments of the common-wealth, whenever he shall be called to it; which indeed are his own judgments, they being made by himself, or his representative. And herein we have the original of the legislative and executive power of civil society, which is to judge by standing laws, how far offences are to be punished, when committed within the common-wealth; and also to determine, by occasional judgments founded on the present circumstances of the fact, how far injuries from without are to be vindicated; and in both these to employ all the force of all the members, when there shall be need.

Sec. 89. Where-ever therefore any number of men are so united into one society, as to quit every one his executive power of the law of nature, and to resign it to the public, there and there only is a political, or civil society. And this is done, where-ever any number of men, in the state of nature, enter into society to make one people, one body politic, under one supreme government; or else when any one joins himself to, and incorporates with any government already made: for hereby he authorizes the society, or which is all one, the legislative thereof, to make laws for him, as the public good of the society shall require; to the execution whereof, his own assistance (as to his own decrees) is due. And this puts men out of a state of nature into that of a common-wealth, by setting up a judge on earth, with authority to determine all the controversies, and redress the injuries that may happen to any member of the commonwealth; which judge is the legislative, or magistrates appointed by it. And where-ever there are any number of men, however associated, that have no such decisive power to appeal to, there they are still in the state of nature.

Sec. 90. Hence it is evident, that absolute monarchy, which by some men is counted the only government in the world, is indeed inconsistent with civil society, and so can be no form of civil-government at all: for the end of civil society, being to avoid, and remedy those inconveniencies of the state of nature, which necessarily follow from every man's being judge in his own case, by setting up a known authority, to which every one of that society may appeal upon any injury received, or controversy that may arise, and which every one of the* society ought to obey; where-ever any persons are, who have not such an authority to appeal to, for the decision of any difference between them, there those persons are still in the state of nature; and so is every absolute prince, in respect of those who are under his dominion.

(* The public power of all society is above every soul contained in the same society; and the principal use of that power is, to give laws unto all that are under it, which laws in such cases we must obey, unless there be reason shewed which may necessarily inforce, that the law of reason, or of God, doth enjoin the contrary, Hook. Eccl. Pol. l. i. sect. 16.)

Sec. 119. Every man being, as has been shewed, naturally free, and nothing being able to put him into subjection to any earthly power, but only his own consent; it is to be considered, what shall be understood to be a sufficient declaration of a man's consent, to make him subject to the laws of any government. There is a common distinction of an express and a tacit consent, which will concern our present case. No body doubts but an express consent, of any man entering into any society, makes him a perfect member of that society, a subject of that government. The difficulty is, what ought to be looked upon as a tacit consent, and how far it binds, i.e. how far any one shall be looked on to have consented, and thereby submitted to any government, where he has made no expressions of it at all. And to this I say, that every man, that hath any possessions, or enjoyment, of any part of the dominions of any government, doth thereby give his tacit consent, and is as far forth obliged to obedience to the laws of that government, during such enjoyment, as any one under it; whether this his possession be of land, to him and his heirs for ever, or a lodging only for a week; or whether it be barely travelling freely on the highway; and in effect, it reaches as far as the very being of any one within the territories of that government.

Sec. 120. To understand this the better, it is fit to consider, that every man, when he at first incorporates himself into any commonwealth, he, by his uniting himself thereunto, annexed also, and submits to the community, those possessions, which he has, or shall acquire, that do not already belong to any other government: for it would be a direct contradiction, for any one to enter into society with others for the securing and regulating of property; and yet to suppose his land, whose property is to be regulated by the laws of the society, should be exempt from the jurisdiction of that government, to which he himself, the proprietor of the land, is a subject. By the same act therefore, whereby any one unites his person, which was before free, to any common-wealth, by the same he unites his possessions, which were before free, to it also; and they become, both of them, person and possession, subject to the government and dominion of that common-wealth, as long as it hath a being. VVhoever therefore, from thenceforth, by inheritance, purchase, permission, or otherways, enjoys any part of the land, so annexed to, and under the government of that common-wealth, must take it with the condition it is under; that is, of submitting to the government of the common-wealth, under whose jurisdiction it is, as far forth as any subject of it.

Sec. 121. But since the government has a direct jurisdiction only over the land, and reaches the possessor of it, (before he has actually incorporated himself in the society) only as he dwells upon, and enjoys that; the obligation any one is under, by virtue of such enjoyment, to submit to the government, begins and ends with the enjoyment; so that whenever the owner, who has given nothing but such a tacit consent to the government, will, by donation, sale, or otherwise, quit the said possession, he is at liberty to go and incorporate himself into any other common-wealth; or to agree with others to begin a new one, in vacuis locis, in any part of the world, they can find free and unpossessed: whereas he, that has once, by actual agreement, and any express declaration, given his consent to be of any commonwealth, is perpetually and indispensably obliged to be, and remain unalterably a subject to it, and can never be again in the liberty of the state of nature; unless, by any calamity, the government he was under comes to be dissolved; or else by some public act cuts him off from being any longer a member of it.

Sec. 122. But submitting to the laws of any country, living quietly, and enjoying privileges and protection under them, makes not a man a member of that society: this is only a local protection and homage due to and from all those, who, not being in a state of war, come within the territories belonging to any government, to all parts whereof the force of its laws extends. But this no more makes a man a member of that society, a perpetual subject of that common-wealth, than it would make a man a subject to another, in whose family he found it convenient to abide for some time; though, whilst he continued in it, he were obliged to comply with the laws, and submit to the government he found there. And thus we see, that foreigners, by living all their lives under another government, and enjoying the privileges and protection of it, though they are bound, even in conscience, to submit to its administration, as far forth as any denison; yet do not thereby come to be subjects or members of that commonwealth. Nothing can make any man so, but his actually entering into it by positive engagement, and express promise and compact. This is that, which I think, concerning the beginning of political societies, and that consent which makes any one a member of any common-wealth.
Sec. 198. In all lawful governments, the designation of the persons, who are to bear rule, is as natural and necessary a part as the form of the government itself, and is that which had its establishment originally from the people; the anarchy being much alike, to have no form of government at all, or to agree that it shall be monarchical, but to appoint no way to design the person that shall have the power, and be the monarch. Hence all commonwealths, with the form of government established, have rules also of appointing those who are to have any share in the public authority, and settled methods of conveying the right to them. Whoever gets into the exercise of any part of the power, by other ways than what the laws of the community have prescribed, hath no right to be obeyed, though the form of the commonwealth be still preserved; since he is not the person the laws have appointed, and consequently not the person the people have consented to. Nor can such an usurper, or any deriving from him, ever have a title, till the people are both at liberty to consent, and have actually consented to allow, and confirm in him the power he hath till then usurped. From: The Second Treatise of Civil Government by John Locke

Once again, you insist on making "the People's Bill of RIGHTS" into some strange "government's Bill of POWERS". As long as "the People" exercise their "RIGHT to keep and bear Arms" in such a way as it does not harm another's RIGHTS, the government has NO basis to regulate that RIGHT. If I am incorrect, then please describe the justification for government to regulate "the People's right to keep and bear arms" in the absence of any wrong-doing. As stated in the amendment this right "shall not be infringed". I can live with that.
By the way, I just answered the question that was presented to me. If you want to dispute what the various assault weapons ban defines as assault weapons, you have many forums to do so, but I will not debate you anymore on those points.

Unfortunately you know as much about "Assault Weapons" as you do about "RIGHTS".
1.12.2006 10:53pm
Neal Lang (mail):
About the definition of "assault weapons," I didn't make it up. I don't really care how you define assault weapons. I would care, if I thought it was good public policy, what the law would define falls under the ban. I provided a definition that I saw used by gun control advocates. They made up the word, they must be able to define and they have in the laws that they passed. You don't like it, but you don't like the whole idea of banning certain weapons.

The problem is that there is NO accepted definition of "assault weapon", unlike "Assaiult Rifle", "Submachne Gun", "Pistle", "Revolver", etc. In fact, in California, the definition (and ban) is a moving target, subject to change by mere Attorney General fiat.
1.12.2006 11:10pm
Neal Lang (mail):
Oops, I missed the cite on the above 2nd Amendment analysis. They are from: The Embarrassing Second Amendment by Sanford Levinson, University of Texas at Austin School of Law
1.12.2006 11:14pm
juris imprudent (mail):
Neal

Actually, they were National Guard (i.e. militia) by definition and Federal Code

The NG is not the militia. I am surprised that you would make that mistake. The NG is authorized under Congress' power to raise armies, not in the discipline and provision of the militia.

As for the Civil War. Congress authorized an army as opposed to calling forth the militia. Of course it isn't surprising that those who participated in the militia would subsequently enlist in the federal army. But there is a distinction here. After Shay and the Whiskey Rebellion, the militia as a functioning institution waned. The experience in the War of 1812 signaled the end of the militia as the dominant force for defense. For example:

The militia performed as well as the Regular Army. The defeats and humiliations of the Regular forces during the first years of the war matched those of the militia, just as in a later period the Kentucky volunteers at the Thames and the Maryland militia before Baltimore proved that the state citizen soldier could perform well. The keys to the militiamen's performance, of course, were training and leadership, the two areas over which the national government had little control. The militia, occasionally competent, was never dependable, and in the nationalistic period that followed the war when the exploits of the Regulars were justly celebrated, an ardent young Secretary of War, John Calhoun, would be able to convince Congress and the nation that the first line of defense should be a standing army.
1.13.2006 12:33am
Andy Freeman (mail):
> Aren't all the words of the constitution, except the preamble, meant to have an effect in law?

Yes, but well-regulated militia doesn't mean under govt control.

Moreover, it's fairly easy to demonstrate that the restrictive interpretation doesn't actually come from the preamble. How? By changing the topic of the amendment and conceding the "govt control" interpretation of the preamble. The resulting amendment reads:

"Educated govt officials, being necessary to the effectiveness of govt, the right of the people to keep and bear books, shall not be infringed."

No one would suggest that the above allows any restrictions on book ownership.
1.13.2006 10:14am
Andy Freeman (mail):
> Most people define assault weapons, as military-style weaponry. The more specific definitions are provided by the laws themselves. These laws state limits on the magazine, the grip, fold-up stock and so on. An example is a Tec-9 or Uzi.

The question is whether any of the definitions are actually relevant.

For example, AR-15 clones are included, but the Mini-14 isn't. These two guns shoot exactly the same bullet, using comparable mechanisms. Yes, the AR-15 looks like a M-16 (machine gun), but my Mom's car has the same body as a nascar race car and no one seems to confuse the two.

One of the listed characteristics is a bayonet mount. Precisely how is that relevant?

Another is a type of stock that helps many people shoot more accurately. Again - relevance?

One of the listed guns is a single-shot shotgun that has to be manually cocked, making it one of the slowest guns around. (Almost all single-shot shotguns designed in the last 100 years cock when the action is closed after loading the shell.) Its distinguishing characteristic is that it is black.

The listed handguns are larger than average. Relevance?

The legitimate assault weapons argument turns on whether these guns actually are different, which is a technical point, so if you can't defend it on those grounds.... (The AW thing is an interesting social hack.)

Suppose, for the sake of argument, that "assault weapons" aren't functionally different. What's the benefit of special restrictions? What's the purpose?

As someone who would like to try different kinds of gun control, the assault weapons laws/campaign are a huge problem. They tell gun owners that irrational things will happen.

Combine that with gun controllers' fetish for keeping measures that don't work and advocacy of measures that haven't ever worked and there's no way to make the "let's try it" argument for new ideas. (No, Noah, you haven't proposed/supported anything that is new or effective.)

The only rational conclusion is that gun controllers don't care about crime/violence, they just care about banning guns. And no, ignorance is no justification. If you're pushing a proposal, you're responsible for the consequences of said push.
1.13.2006 10:36am
Neal Lang (mail):
The NG is not the militia. I am surprised that you would make that mistake. The NG is authorized under Congress' power to raise armies, not in the discipline and provision of the militia.

Of course it is - both Constitutionally (the CiC of State National Guard Units is the State Government - until they are "called forth" into Federal service). Per Article I Section 8 and 10 - the only troops that the States may maintain are "militia". The State National Guard are organized according to the Militia Act of 1792:
Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States, to call forth such number of the militia of the state or states most convenient to the place of danger or scene of action as he may judge necessary to repel such invasion, and to issue his orders for that purpose, to such officer or officers of the militia as he shall think proper; and in case of an insurrection in any state, against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such state, or of the executive (when the legislature cannot be convened) to call forth such number of the militia of any other state or states, as may be applied for, or as he may judge sufficient to suppress such insurrection.

Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session.

Sec. 3. Provided always, and be it further enacted, That whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth, the President shall forthwith, and previous thereto, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time.

Sec. 4. And be it further enacted, That the militia employed in the service of the United States, shall receive the same pay and allowances, as the troops of the United States:

An ACT more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States.

I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

III. And be it further enacted, That within one year after the passing of the Act, the militia of the respective states shall be arranged into divisions, brigades, regiments, battalions, and companies, as the legislature of each state shall direct; and each division, brigade, and regiment, shall be numbered at the formation thereof; and a record made of such numbers of the Adjutant-General's office in the state; and when in the field, or in serviced in the state, such division, brigade, and regiment shall, respectively, take rank according to their numbers, reckoning the first and lowest number highest in rank. That if the same be convenient, each brigade shall consist of four regiments; each regiment or two battalions; each battalion of five companies; each company of sixty-four privates. That the said militia shall be officered by the respective states, as follows: To each division on Major-General, with two Aids-de-camp, with the rank of major; to each brigade, one brigadier-major, with the rank of a major; to each company, one captain, one lieutenant, one ensign, four serjeants, four corporals, one drummer, and one fifer and bugler. That there shall be a regimental staff, to consist of one adjutant, and one quartermaster, to rank as lieutenants; one paymaster; one surgeon, and one surgeon's mate; one serjeant-major; one drum- major, and one fife-major.

IV. And be it further enacted, That out of the militia enrolled as is herein directed, there shall be formed for each battalion, as least one company of grenadiers, light infantry or riflemen; and that each division there shall be, at least, one company of artillery, and one troop of horse: There shall be to each company of artillery, one captain, two lieutenants, four serjeants, four corporals, six gunners, six bombardiers, one drummer, and one fifer. The officers to be armed with a sword or hanger, a fusee, bayonet and belt, with a cartridge box to contain twelve cartridges; and each private of matoss shall furnish themselves with good horses of at least fourteen hands and an half high, and to be armed with a sword and pair of pistols, the holsters of which to be covered with bearskin caps. Each dragoon to furnish himself with a serviceable horse, at least fourteen hands and an half high, a good saddle, bridle, mail-pillion and valise, holster, and a best plate and crupper, a pair of boots and spurs; a pair of pistols, a sabre, and a cartouchbox to contain twelve cartridges for pistols. That each company of artillery and troop of house shall be formed of volunteers from the brigade, at the discretion of the Commander in Chief of the State, not exceeding one company of each to a regiment, nor more in number than one eleventh part of the infantry, and shall be uniformly clothed in raiments, to be furnished at their expense, the colour and fashion to be determined by the Brigadier commanding the brigade to which they belong.

V. And be it further enacted, That each battalion and regiment shall be provided with the state and regimental colours by the Field-Officers, and each company with a drum and fife or bugle-horn, by the commissioned officers of the company, in such manner as the legislature of the respective States shall direct.

VI. And be it further enacted, That there shall be an adjutant general appointed in each state, whose duty it shall be to distribute all orders for the Commander in Chief of the State to the several corps; to attend all publick reviews, when the Commander in Chief of the State shall review the militia, or any part thereof; to obey all orders from him relative to carrying into execution, and perfecting, the system of military discipline established by this Act; to furnish blank forms of different returns that may be required; and to explain the principles of which they should be made; to receive from the several officers of the different corps throughout the state, returns of the militia under their command, reporting the actual situation of their arms, accoutrements, and ammunition, their delinquencies, and every other thing which relates to the general advancement of good order and discipline: All which, the several officers of the division, brigades, regiments, and battalions are hereby required to make in the usual manner, so that the said adjutant general may be duly furnished therewith: From all which returns be shall make proper abstracts, and by the same annually before the Commander in Chief of the State.

VII. And be it further enacted, That the rules of discipline, approved and established by Congress, in their resolution of the twenty-ninth of March, 1779, shall be the rules of discipline so be observed by the militia throughout the United States, except such deviations from the said rules, as may be rendered necessary by the requisitions of the Act, or by some other unavoidable circumstances. It shall be the duty of the Commanding Officer as every muster, whether by battalion, regiment, or single company, to cause the militia to be exercised and trained, agreeably to the said rules of said discipline.

VIII. And be it further enacted, That all commissioned officers shall take rank according to the date of their commissions; and when two of the same grade bear an equal date, then their rank to be determined by lots, to be drawn by them before the Commanding officers of the brigade, regiment, battalion, company or detachment.

IX. And be it further enacted That if any person whether officer or solder, belonging to the militia of any state, and called out into the service of the United States, be wounded or disabled, while in actual service, he shall be taken care of an provided for at the publick expense.

X. And be it further enacted, That it shall be the duty of the brigade inspector, to attend the regimental and battalion meeting of the militia composing their several brigades, during the time of their being under arms, to inspect their arms, ammunition and accoutrements; superintend their exercise and maneuvres and introduce the system of military discipline before described, throughout the brigade, agreeable to law, and such orders as they shall from time to time receive from the commander in Chief of the State; to make returns to the adjutant general of the state at least once in every year, of the militia of the brigade to which he belongs, reporting therein the actual situation of the arms, accoutrement, and ammunition, of the several corps, and every other thing which, in his judgment, may relate to their government and general advancement of good order and military disciple; an adjutant general shall make a return of all militia of the state, to the Commander in Chief of the said state, and a duplicate of the same to the president of the United States.

And whereas sundry corps of artillery, cavalry and infantry now exist in several of the said states, which by the laws, customs, or usages thereof, have not been incorporated with, or subject to the general regulation of the militia. From:
Militia Act of 1792 (As Revised 1795)

and are defined as Militia in Title 10 of the US Code:
(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.

The National Guard is militia by all objective criteria.
As for the Civil War. Congress authorized an army as opposed to calling forth the militia. Of course it isn't surprising that those who participated in the militia would subsequently enlist in the federal army. But there is a distinction here.

Actually, as authorized by Congress in the Militia Act of 1792, President Abraham Lincoln "called forth the militia" as one of his first official acts on April 15, 1861. Congress, in 1862, premitted the President to set State Quotas under the Militia Act and for the first time allowed Blacks to participate in the militia. It wasn't until 1863 that first "draft" for Regular Army recruits took place after Congress authorized same that year:
In both North and South, conscription was wildly unpopular, partly because it represented an unprecedented extension of government power into the lives of individuals, but also because of the inequitable way in which it was administered. For example, initially the Confederate Congress permitted a conscript to hire someone to serve in his place. The practice was abolished when the price of a substitute soared beyond $5,000; in the meantime, however, hiring substitutes convinced many ordinary Southerners that the Confederacy's struggle was "a rich man's war and a poor man's fight." Even more upsetting was the so-called "Twenty Negro Law" which exempted one white man for every twenty slaves. This meant that the sons of wealthy plantation owners could be exempted, and even if few men actually took advantage of the law, it contributed to the sense of conscription's unfairness. In the North, the conscription act also permitted the hiring of substitutes; moreover, any man who paid a $300 commutation fee could receive exemption from any given draft call. Ironically the commutation fee, designed to keep the cost of hiring a substitute from soaring out of reach, was intended to help the average man. Instead it only fueled a sense that the draft law was rigged in favor of the wealthy.

In the North, well-to-do communities also frequently raised bounty funds to encourage volunteering, so that their own citizens could elude the draft. Under this system, a man willing to enlist received a cash payment totaling hundreds of dollars. As the war went on and volunteers became harder to find, such bounties increased prodigiously. They soon generated a phenomenon called "bounty-jumping" whereby men went from place to place, enlisted, took their bounties, and then absconded at the first opportunity. One bounty jumper claimed to have done this thirty-two times.

The indirect way in which Civil War conscription operated makes it difficult to assess its effectiveness. It almost certainly encouraged enlistments and, particularly in the South, kept veteran soldiers in the ranks; one estimate credits the system with augmenting Union troop levels by 750,000. But the number of men actually drafted was surprisingly small. In the North, barely 46,000 conscripts actually served in the armies. Another 116,000 men hired substitutes, while 87,000 others paid the $300 commutation fee. Between conscripts and substitutes, the Union draft furnished only 6 percent of the North's military manpower. The Confederacy did little better. The available evidence, while incomplete, suggests that roughly 82,000 Southerners entered the army through conscription--about 11 percent of total enlistments.

The political costs of conscription, however, were dramatic. Many Southerners eluded the draft and fought off the enrollment agents who came to conscript them. In some states, especially Georgia and North Carolina, governors who opposed the draft used loopholes in the conscription acts to exempt as many of their citizens as possible. In the North, a number of provost officers lost their lives while attempting to enforce the draft. The worst violence occurred in New York City in July 1863, when angry mobs attacked draft offices, roughed up well-dressed passersby ("There goes a $300 man"), and slaughtered dozens of free blacks, whom they blamed for the war and hence for conscription. All in all, at least 105 people died in the New York City Draft Riot, making it the worst such incident in American history. From: THE CIVIL WAR, 1863:MOVING DEMOCRACIES TOWARD TOTAL WAR

If you compare the total Regular Army conscription with the total number of servicemembers and casualities for both Union and Confederate Forces, it pretty obvious that militia troops made up the vast majority of combatants for both sides:
Civil War (1861–1865)

Total servicemembers (Union) 2,213,363
Battle deaths (Union) 140,414
Other deaths in service (nontheater) (Union) 224,097
Nonmortal woundings (Union) 281,881

Total servicemembers (Conf.) 1,050,000
Battle deaths (Conf.) 74,524
Other deaths in service (nontheater) (Conf.) 59,2972
Nonmortal woundings (Conf.) unknown
From: America's Wars: U.S. Casualties and Veterans

Obviously the vast majority of troops on both sides had to have been militia.
After Shay and the Whiskey Rebellion, the militia as a functioning institution waned. The experience in the War of 1812 signaled the end of the militia as the dominant force for defense.

The figures from the Revolutionary War, the War of 1812, Mexican War, and the Spanish-American War:
American Revolution (1775–1783)

Total servicemembers 217,000
Battle deaths 4,435
Nonmortal woundings 6,188

War of 1812 (1812–1815)

Total servicemembers 286,730
Battle deaths 2,260
Nonmortal woundings 4,505

Mexican War (1846–1848)

Total servicemembers 78,718
Battle deaths 1,733
Other deaths in service (nontheater) 11,550
Nonmortal woundings 4,152

Spanish-American War (1898–1902)

Total servicemembers 306,760
Battle deaths 385
Other deaths in service (nontheater) 2,061
Nonmortal woundings 1,662

also indicate a large proportion of militia (or National Guard) to Regular Army troops in those conflicts. Without the "militia" (or National Guard) the United States would never have existed, let alone making it to the millennium!
1.13.2006 12:27pm
Neal Lang (mail):
Suppose, for the sake of argument, that "assault weapons" aren't functionally different. What's the benefit of special restrictions? What's the purpose?

Benefit and Purpose:

Just like the Politically Correct "Speech Codes" that are found at most American Universities, which are designed to make "certain" minorities feel better by banishing "certain" types of "evil" speech - gun control laws like the "Assault Weapons Bans" (a.k.a. as the "evil-looking weapons bans") are designed to make "certain" minorities (hoplophobes - those with irrational fear of weapons) feel better by banishing "certain" types of "evil-looking" weapons.
Hoplophobia (pronounced HOP-li-fobia), from the Greek hoplon, or weapon, is a phobia identified by firearms instructor Colonel Jeff Cooper in 1962. His intent was to satirically use a clinical term to bring public recognition of the irrational fear of firearms and other forms of weaponry such as knives or explosives. He stated that "the most common manifestation of hoplophobia is the idea that instruments possess a will of their own, apart from that of their user". Hoplophobia is deemed to be a cultural side effect of those who engage in the primordial human belief systems that anthropologists refer to as "Animism", or the belief that inanimate objects can hold spirits that can effect human actions.

Sigmund Freud, the father of modern psychoanalysis, stated the following:

"A fear of weapons is a sign of retarded sexual and emotional maturity." - Sigmund Freud, "General Introduction to Psychoanalysis". From: Hoplophobia
1.13.2006 12:47pm
juris imprudent (mail):
Neal, you abuse history as badly as Bellesiles.

The opening line of PERPICH v. DEPARTMENT OF DEFENSE:

Since 1933, federal law has provided that persons enlisting in a State National Guard unit simultaneously enlist in the National Guard of the United States, a part of the Army.

Thus, anyone joining the "state" NG (arguably the 'militia') is also attached to the US NG (a department of the US Army) - see Title 32 USC. You can quote the Militia Act of 1792 until you are blue in the face. The simple and plain fact is that Act was superceded (by the very Title 10 section you quoted as well as TItle 32) and is no longer the operative policy of the United States.

I don't know if you are simply nostaligic for an era, or perhaps more accurately a myth, in which the brave yeoman-farmer valiantly defended his homestead, or if you have a latent distrust of our armed forces. Perhaps you subscribe to the nonsense of the "militia movement". I do not know. I do know that the militia ceased to be the basis of national defense following the War of 1812, and that today everyone who is a member of the NG, enlisted or commissioned, serves under the Dept of the Army. I also know that the "unorganized militia" has not been called to drill, let alone to service as militia, in my lifetime. Despite the laws still on the books, the militia - like the prohibition on quartering of soldiers (3rd Amdt) - just ain't relevant these days.

I am curious about one thing though - are you concerned by Bush's desire to strike the Posse Commitatus restriction on the military role in domestic affairs?
1.13.2006 5:26pm
Neal Lang (mail):
Neal, you abuse history as badly as Bellesiles.

The opening line of PERPICH v. DEPARTMENT OF DEFENSE:

Since 1933, federal law has provided that persons enlisting in a State National Guard unit simultaneously enlist in the National Guard of the United States, a part of the Army.

Thus, anyone joining the "state" NG (arguably the 'militia') is also attached to the US NG (a department of the US Army) - see Title 32 USC. You can quote the Militia Act of 1792 until you are blue in the face. The simple and plain fact is that Act was superceded (by the very Title 10 section you quoted as well as TItle 32) and is no longer the operative policy of the United States.

So, based on your source in 1898 they were State National Guard and therefore arguably the 'militia', by definition.
Me - "Really? That is interesting, considering that American Revolution, the War of 1812, the Civil War, and the Spanish American War were all fought by basically militia. Who do think the "Rough Riders" were anyway? "
You - "They were, according to TR himself:

Our doubts were resolved when Congress authorized the raising of three cavalry regiments from among the wild riders and riflemen of the Rockies and the Great Plains... Wood and I were speedily commissioned as Colonel and Lieutenant-Colonel of the First United States Volunteer Cavalry. This was the official title of the regiment, but for some reason or other the public promptly christened us the "Rough Riders."

Thus they were not militia units, but U.S. Army (cavalry)."
Me - "Actually, they were National Guard (i.e. militia) by definition and Federal Code:

With the declaration of war with Spain in April 1898, 164,932 National Guardsmen entered Federal service. The 1st New Mexico Cavalry entered Federal service as the 2nd Squadron, 1st U.S. Volunteer Cavalry, better known as the "Rough Riders." Theodore Roosevelt conceived the idea of raising a cavalry regiment recruited from businessmen, cowboys and outdoorsmen. Roosevelt, a former New York National Guardsman, helped to organize the regiment and was appointed its lieutenant colonel. After training in Texas and Florida, the Rough Riders landed in Cuba, without their horses, on June 22, 1898. It was during the Battle of San Juan Hill, on July 1, that the Rough Riders, under the command of Lt. Col. Roosevelt, made their mark in American military history. Ordered to seize Kettle Hill in support of the main attack, the Rough Riders fought their way to the top despite heavy enemy fire. New Mexico's F and G Troops were among the first to reach the top of Kettle Hill. After taking the hill, the Rough Riders continued their attack, seizing the heights overlooking the city of Santiago. The American victory led to the Spanish surrender two weeks later. The gallant heritage of the 2nd Squadron of the Rough Riders is perpetuated by the 200th Air Defense Artillery, New Mexico Army National Guard.

In Cuba they fought as "unmounted cavalry", their horses not making the trip from Tampa."


It would appear as though you were the real historic abuser. To my knowledge the Spanish-American War (the subject in question) took place before 1933 - thus making my position correct - that the State associated National Guard units, such as the Rough Riders, were in fact "militia". I rest my case! You're wrong, get over it!
I don't know if you are simply nostaligic for an era, or perhaps more accurately a myth, in which the brave yeoman-farmer valiantly defended his homestead, or if you have a latent distrust of our armed forces. Perhaps you subscribe to the nonsense of the "militia movement". I do not know. I do know that the militia ceased to be the basis of national defense following the War of 1812, and that today everyone who is a member of the NG, enlisted or commissioned, serves under the Dept of the Army. I also know that the "unorganized militia" has not been called to drill, let alone to service as militia, in my lifetime. Despite the laws still on the books, the militia - like the prohibition on quartering of soldiers (3rd Amdt) - just ain't relevant these days.

In fact the so-called "myth" of course is a "fact" as those living on the "frontier" in America starting with Jamestown and Plymouth Rock colonies right up until the early 20th Century. Additionally, from 1776 up until the end of the Vietnam War, this country was well served by a citizen Army in all its major war. If you say otherwise it is you who is the "deconstructor" of our history.

As for trusting our armed forces, you are making way too much of my attempt to straighten out your cockeyed view of history. Personally, I believe that all citizens should serve their country in military service as a requisite for citizenship. If it were possile, I would prefer the Swiss-model for the US, I know our Founders felt that way. However, I realize that design cannot would for large maritime economy, particular one that is also a World Power. Additionally, since the quantum in military technology and the destructiveness of military systems demand a small professional military as we are currently building. I think our professional, all-volunteer military is great. There is none other even close to their moral, capabilities, and professionalism.

You are incorrect about the State militia, though, as they served well as the basis of our Army, up until WWI. Those are the real historic facts. I believe your problem is one of definition:
militia, n,
1. An army composed of ordinary citizens rather than professional soldiers.
2. A military force that is not part of a regular army and is subject to call for service in an emergency.
3. The whole body of physically fit civilians eligible by law for military service.

I have no problem with the above definitions. If you do, I can seen why your historic prospective of the US military is so skewed.

As for serving under the Commander-in-Chief, well the militia, when "called forth", serves under the President of the US and the military structure he set-up. They are still "citizen soldiers" and not "full time" soldiers.

You must be pretty young - in the early 1960s I was uniformed, armed and drilled with the Morris Guards, an irregular militia unit in New Jersey. I learned military courtesy, the manual of arms, march and maneuverer, marksmanship (with 03 Springfields), and uniform, kit and weapon maintenance. We staged field problems and maneuverer exercises. All our oficers and senior non-coms were WWII or Korean Vets and were elected. I earned the rank of Corporal before I left the organization to go to college '64.
I am curious about one thing though - are you concerned by Bush's desire to strike the Posse Commitatus restriction on the military role in domestic affairs?

It depends on what you mean by "domestic affairs" and "Posse comitatus".
Posse comitatus - The power of the county, or the citizens who may be summoned by the sheriff to assist the authorities in suppressing a riot, or executing any legal precept which is forcibly opposed. --Blackstone.

Personally, I am not aware of any Bush proposal have the US Military suppliment any Sheriff as well armed and trained deputies. If he has such in mind, then I am against it.

Of course, if by "domestic affairs" you mean restoring order in situations like New Orleans following Katerina, then he would be merely carrying a completely Constitutional function the US Military has carried out since the Revolution.
Article I Section 8.
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

If that is what you mean, I have no problem with it.

Alexander Hamilton waxed lyrical on the subject of Poss Comitatus in Federalist 29:
In order to cast an odium upon the power of calling forth the militia to execute the laws of the Union, it has been remarked that there is nowhere any provision in the proposed Constitution for calling out the POSSE COMITATUS, to assist the magistrate in the execution of his duty, whence it has been inferred, that military force was intended to be his only auxiliary. There is a striking incoherence in the objections which have appeared, and sometimes even from the same quarter, not much calculated to inspire a very favorable opinion of the sincerity or fair dealing of their authors. The same persons who tell us in one breath, that the powers of the federal government will be despotic and unlimited, inform us in the next, that it has not authority sufficient even to call out the POSSE COMITATUS. The latter, fortunately, is as much short of the truth as the former exceeds it. It would be as absurd to doubt, that a right to pass all laws necessary and proper to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it. It being therefore evident that the supposition of a want of power to require the aid of the POSSE COMITATUS is entirely destitute of color, it will follow, that the conclusion which has been drawn from it, in its application to the authority of the federal government over the militia, is as uncandid as it is illogical. What reason could there be to infer, that force was intended to be the sole instrument of authority, merely because there is a power to make use of it when necessary? What shall we think of the motives which could induce men of sense to reason in this manner? How shall we prevent a conflict between charity and conviction? From: The Federalist No. 29 - Concerning the Militia by Alexander Hamilton

I find the connection with the militia most interesting, considering your disdain for them.

Finally, with regards to the "quarering of soldiers" the 3rd Amendment is not a "prohibition" to same, merely a understanding on its protocols in time of peace and war.
Article the fifth [Amendment III]

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

I understand that during Katerina, certain arrangements for quartering troops were necessary, so I would say that the 3rd Amendment is far from obsolete. However, when you take the recent Kelos decision into account, it would appear that the military could simply "take" any required accommodations under "eminent domain".
1.13.2006 8:14pm
Neal Lang (mail):
First, I am impressed that you went to such a length to determine what 18th century definition of "well-regulated." This must be an issue of singular importance to you. But I am sorry to say that your opinion and the opinion of a journalist, who is on the board of several dictionaries does not have weight on the issue of law.

Hmmm! Okay, how much weight would you give to "PUBLIUS"?
By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse:

"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

"But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist." PUBLIUS From: The Federalist No. 29 - Concerning the Militia by Alexander Hamilton (a.k.a. "PUBLIUS")

Please note the use of "well-regulated militia". Obviously Hamilton believes that the "well-regulated militia" is a "well-trained militia" - one that has been "going through military exercises and evolutions" for such a long time as to "acquire the degree of perfection" in their use as to be a "well-regulated militia". Note that Hamilton has a problem with the "real grievance to the people, and a serious public inconvenience and loss" caused by devoting the necessary time to such training. If by "well-regulated", Hamilton meant what you state - "controlled", such would require hardly any time or effort on the part of the "great body of the yeomanry, and of the other classes of the citizens" - merely the Congress enacting the appropriate laws.

I am afraid that you, and anyone else who believes that "well-regulated" means "gun control" (other than the "gun control" required to hit your target) truly don't understand its meaning as it is used in the 2nd Amendment of the Constitution by James Madison and in Federalist #29 by "PUBLIUS" - Alexander Hamilton.
1.13.2006 8:44pm
juris imprudent (mail):
Neal,

...this country was well served by a citizen Army in all its major war.


It does appear we have had a difference of opinion on militia vs. army. That our army is composed of citizen-soliders, does not in my mind, make it the militia as originally conceived by the Founders. A paid, professional army was a worrisome thing to them - not merely that it was staffed by foreign mercenaries. The English army, although supplemented by Hessians, was largely English. Thus, the 2-year limit on appropriations in the Constitution, and the very small manpower limit in authorization of the Army after the War of 1812.

Now, I do not consider the Army to become a militia simply because citizens volunteer to serve in it. Constitutionally, these are two distinct entities and I think it inappropriate to blur that. Congress raised the Rough Rider components as part of the Army - not militia (irrespective of who answered the call).

Theodore Roosevelt conceived the idea of raising a cavalry regiment recruited from businessmen, cowboys and outdoorsmen.

Indeed, the regiment was raised and recruited, it was not some pre-existing company of militia. You continually assume that the individuals that may have participated in a local militia company are still militia when they enlist in the Army. They are not - not prior to 1933 and certainly not now. The Fighting 69th are another good example. Their initial muster for the Civil War lasted 90 days, whereupon, the company retired to NY as militia and the members subsequent return to the field was under enlistment in the Union Army. It was the Union Army, not the various state militia, that persevered throughout the full execution of the war.

As for your experience with the Morris Guards, I daresay you overgeneralize from that, as I may be guilty of too. Although in my extended family, many have served in the armed forces, but I know of none that participated in militia drills. Just curious, was your drill actually a state-sponsored event, or was this really just a club get-together (you mentioned "irregulars")?

I find the connection with the militia most interesting, considering your disdain for them.

I merely say that the militia did not work as intended by the Founders, and that we have found a standing army (of citizen-soldiers) to be an effective defense and not a threat to liberty. I have no disdain for the militia - except for those who run around outside of the authority of civil govt, the so-called "militia movement". They were/are nothing but a bunch of crack-pots.
1.14.2006 2:02pm