I should stress that this is a small thing compared to the very solid body of evidence that's already been uncovered in this direction. Still, I came across it, and thought I'd mention it. This is from Judge John Reed's Pennsylvania Blackstone (1831), "A Modification of the Commentaries of Sir William Blackstone, with numerous alterations and additions, designed to present an elementary exposition of the entire Law of Pennsylvania." Reed was the President Judge of the Court of Common Pleas of the Ninth Judicial District of Pennsylvania, and the founder of the oldest law school in Pennsylvania, the Dickinson School of Law. Here is his elaboration of the passage in Blackstone that discusses the English right to have arms:
5. A fifth right of every citizen, "is that of having arms for his defence." By the constitution of the United States, "the right of the people to keep and bear arms, shall not be infringed;" and by that of Pennsylvania, "the right of citizens to bear arms in defence of themselves and the state, shall not be questioned." These provisions also, were no doubt intended, to avoid a recurrence of the restrictions, on this subject, found in the English laws. By the forest and game laws, in England, the right of keeping arms is effectually taken away from the great body of the people; and, in another place in the Commentaries, it is said, "that the prevention of popular insurrections, and resist[ance] to government, by disarming the bulk of the people, is a reason oftener meant, than avowed, by the makers of such laws.
So Judge Reed is clearly treating the Second Amendment as (1) being based on the English right to have arms (something that Justice Stevens' Heller dissent largely denies), (2) being similar in scope to the Pennsylvania right to bear arms in defence of themselves as well as of the state (again something that Justice Steven's dissent seems to deny), and (3) not being dependent on membership in a government-defined militia (since the right is "of every citizen," and is a "right of keeping arms" that the government may not "take[] away from the great body of the people").
Related Posts (on one page):
- An 1869 Data Point on the Second Amendment:
- Two More Early References to the Right To Bear Arms,
- An 1831 Source Supporting the Individual Rights View of the Second Amendment:
- An 1830 Source Casually Assuming the Individual Rights View of the Second Amendment:
- Another Early 1800s Source Supporting the Individual Rights View of the Second Amendment:
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Chutzpah, that's what the DC Commissioners have.
In the Supreme Court’s Heller decision, the Justices declared a new constitutional right to have a gun for self-defense in the home, ...
No, they did no such thing. They recognized an existing right to self defense and to keep and bear arms.
I guess their response can be summed up as "DC to SCOTUS - Drop dead!"
http://dc.gov:80/mayor/news/release.asp?id=1333&mon=200807
July 14, 2008
Mayor Fenty, Council Unveil Firearms Legislation and Regulations
http://dc.gov/mayor/news/release.asp?id=1333&mon=200807
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Fingerprints, ballistics tests, etc. I thought Michigan handgun laws were nuts, but those guys are amateurs compared with DC.
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It appears DC is working to clutter the field with restrictions, so each has to be litigated separately.
1. Continues to ban handguns in most places but creates an exception for self-defense in the home. The handgun ban remains in effect, except for use in self-defense within the home. Sawed-off shotguns, machine guns and short-barreled rifles are still prohibited.
2. Requires the Metropolitan Police Department to perform ballistic testing on handguns and makes such testing a registration requirement. The Chief of Police will require ballistics tests of any handgun submitted for registration to determine if it is stolen or has been used in a crime. Also, to serve as many residents as possible, the Chief will limit registrations to one handgun per person for the first 90 days after the legislation becomes law.
3. Clarifies the safe-storage and trigger-lock requirements. The legislation modifies existing law to clarify that firearms in the home must be stored unloaded and either disassembled secured with a trigger lock, gun safe, or similar device. An exception is made for a firearm while it is being used against reasonably perceived threat of immediate harm to a person within a registered gun owner’s home. The bill also includes provisions on the transportation of firearms for legal purposes.
4. Clarifies that no carry license is required inside the home. Residents who legally register handguns in the District will not be required to have licenses to carry them inside their own homes.
#3 shows that the D.C. government sees the District as a Constitution-free zone. It will never comply with the Supreme Court's decision.
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Using the principle of "clarification via ambiguity."
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Please, can we get better cheats and liars?
If you proceed from the point of view, admittedly non-universal, that the American Revolution was indeed that -- a revolution -- then it slides smoothly into place that we were literally casting aside the ancien regime where only certain men were entitled to arms, and the lower classes literally had no right to defend themselves. (Again, at the time, this didn't mean protect themselves merely from criminals or terrorists. It would have naturally, indeed likely more significantly, have also encompassed protecting their 'common' selves from the 'divinely sanctioned' predations of their 'betters'.)
It would have been a wicked poke at the haughty British elite to proclaim that on this soil, which had been under their thumb for nearly two centuries, every man enjoyed the self-same 'right' they claimed for their noble selves as inherent. It would have also been a direct repudiation of the whole monarchical order which, it must be remembered, was considered the de facto highest conceivable state of human social order.
It takes some empathy to consider the state of mind of Lord Honeybucket, who yesterday, if you will, literally held the power of life and death over his subjects, and was accustomed to exercising it more or less freely; and today, better learn to hold his tongue and mind his manners, or risk the administration of the self-same remedy to his august person as he so off-handedly doled out.
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A-MEN.
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A radical inversion of the historical order. People in force-enabled charge of their government, instead of the other way around. The US was unique in that regard, one of a kind.
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The realization of personal independence (accompanied by personal responsibility) is AWESOME. I'll fight for it.
You could be beating a dead horse now that the collective verse individual right issue has been decided. However, my question for the Second Amendment experts is this - "If you were placed in charge of drafting a Constitution for a country, say Iraq, would you include a personal right to bear arms and if so, why?"
It's a pity because that might actually get DC's attention.
Disclaimer: I am no expert.
I have always thought that one of the greatest mis-steps in the Iraq situation was not harnessing the power of the militias, rather than trying to disarm them. It is how America did it, why was it good enough for us but not for them? Freedom isn't worth anything if you can't defend it.
We had our share of violent militia groups, and we had to find ways to convince them to work together for the common good of our new (not really yet existent) nation. I think we should have learned from that experience and applied it to Iraq sooner, rather than later.
This, of course, may be due to my naivete...
You say above:
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Eugene: The English Bill of Rights was not subject to legislative override, it was in fact dependent on legislative enactment to have arms: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.”
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But I think you're missing the point. Everything is subject to "law," of course. But the point of a provision in a Constitution or a Bill of Rights is that it is not subject to law in the same sense as other laws. So, for example, Congress could delete the 1st Amendment and the 2nd Amendment from the U.S. Constitution by the procedures outlined in the Constitution. So, yes, Constitutional provisions are subject to law - but in a very different sense than other statutes and/or subject areas.
Would you object if the District of Columbia government banned criticism of the City Council in DC? If so - why?... Surely the First Amendment is subject to law. The reason you would object to the above hypothetical is the same reason many of us object to the DC City Council's analogous attempt to rescind a Constitutional provision (the Second Amendment) by "law."
Iraqis had a personal right to own arms under Hussein, and they still do now. Why would anyone deprive Iraqis of the means to defend themselves and their families, once the US leaves?
Even Lord Castlereagh, then foreign secretary, admitted: "[I]t was an infringement upon the rights and duties of the people, and that it could only be defended upon the necessity of the case. But that necessity now existed...."[Hansard, Parliamentary Debates, December 14, 1819, 41:1136.] And the law was actually rather careful to distinguish between defensive and offensive weapons. "Any pike, pike head or spear in the possession of any person or in any house or place..." was subject to confiscation. Yet "any dirk, dagger, pistol or gun or other weapon" was to be seized if it was for "any purpose dangerous to the public peace...."[Greenwood, Firearms Control, 14.] This distinguished between weapons perceived as offensive and defensive, for even the supporters of the Seizure of Arms Act generally accepted the right to possess arms for self-defense.[Hansard, Parliamentary Debates, December 3, 1819, 41:695.]
First Congress can't delete anything. They might pass an amendment and submit it to the People for approval, that is what the amendment process is, asking the People for permission to do this or to do that.
And the source of the Rights in the BoR was addressed by the SC in I believe Cruikshank in that these Rights are NOT granted by and do not depend on the Constitution for their existence. So repeal or removal of the amendments would have no effect on the authority of Congress to restrict those Rights.
I am still waiting for someone to elucidate the constitutional delegation of authority that permits Congress to breach the trust wherein the Constitution delegates "exclusive" legislation in DC to the Congress. Which of the 24/25 or so explicit powers permits Congress to redelegate a delegated power without violating the trust of the People who delegated the authority initially?
The sense of impending conflict means business is picking up at [Baghdad's] 43 gun shops, even though they are only licensed to sell hunting guns or pistols. Customers are stockpiling bullets or shotgun cartridges, says Wiham Ghazi of the "Free Bird" gun shop, whose 12-gauge shotguns and .22 caliber rifles hang from gun racks on the wall of his shop, emanating a faint scent of gun oil.
"It's our culture that people keep guns in their houses - it's inherited from our grandfathers," says Mr. Ghazi, sorting through an array of pistol bullets. Among the ammunition selection is a 12.7mm bullet for a heavy machine gun, with the red-painted tip of a tracer that burns bright as it flies.
"People are buying these kinds of guns just to protect themselves, in case of conflict," Ghazi says, adding that one customer Saturday morning came in looking for bullets for his father's .45 caliber pistol, which had been "put aside for years."
To explain their bond with weapons, Iraqis are fond of the modernized version of one traditional saying: "Give everything to your friend, except your car, your wife, and your gun."
Shotguns here go for just $100; Iraqi-made "Tariq" 7.65 mm pistols cost $200. AK-47 assault rifles, the same gun being offered to Baath Party members, sell for $250.
And that's why a well regulated militia secures the free state.
Our Constitution presumes an armed populace. But it also presumes that the government can regulate the collectivization of armed force. What it cannot do is prohibit a person's individual right to keep and bear a gun.
I am not an originalist, so I have no problem saying "regulated" means "regulated", in the modern sense.
But the original meaning of "regulated" was not "competent", but "disciplined" (as Scalia notes in the Heller opinion), which implies an authority over the militia. And the debate is whether the prefatory clause of the Second Amendment reflected a preexisting power of the government or whether it created such a power; either way, the government had that power.
The second point is, if you read the 1688 Bill of Rights and legislation extant around that time, it's clear that (in spite of what parliamentarians and justices attempt to say) the "as allowed by law" wasn't saying "you can have weapons for self defence in so far as the law allows" it was saying "the common law gives us a right to weapons for self defence." Of course, it's convenient to law-makers to purposely misread plain English and assert their own authority. It doesn't make it right, however.
It's also crystal clear, if you examine the wording of the contemporary (Scottish) Claim of Right Act that the Bill of Rights provision was about military equipment.
Britain does have a constitution, it's just not written down in one place. The politicians have long been busy trying to obscure that fact and that is especially necessary for them now - they're engaged in treason by turning over British sovereignty to the European Union. They are not entitled to do that. Except they have all the guns and all the money and effective control of the media debate... so as a matter of practical fact they can do it.