If Ingersoll wasn't sure that his audience would agree that the Second Amendment secured such a right, he could easily have just relied on the state constitutional right, which was the one most directly relevant in this state prosecution.

I am not sure that I agree with this understanding of defense-counsel practice ....

I plan on expressing my Second Amendment rights this Saturday at the gun show!

I plan on expressing my Second Amendment rights this Saturday at the gun show!

Good luck. Everyone is sold out.

cboldt,

Good to know, thanks.

The Memoirs of Celebrated and Beautiful Mrs. Ann Carson is available only here: http://books.google.com/books?id=_gIFAAAAYAAJ&dq

Blackstone's Commentaries are another useful source of reference, nearly contemporaneous with the formation of the United States of America. The public today has little appreciation for the truly radical form of government ... the people being effectively superior over their government. This from Tucker's Blackstone: Volume 1 - Appendix, Note D, Section 10, but the entirety of Blackstone's is a rich resource for English law, history, and differences between English and US principles of governance. "Free state" is a term of art that describes the occupants of a state, not the relationship of that state to other states.
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We have seen that the appointment of the officers of the militia, and the authority of training them, are expressly reserved to the states, by this article [Article I, Section 8 "reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia ..."]: this was considered as a most important check to any possible abuse of power in the federal government, whenever the aid of the militia should be required by it.
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Notwithstanding this wise precaution in the constitution, the fifth congress appear to have disregarded it ... As these select corps were not called into actual service by those acts, but were only liable to be called upon at the pleasure of the president, it seems impossible to view them in any other light, than as a part of the militia of the states, separated by an unconstitutional act of congress, from the rest, for the purpose of giving to the president powers, which the constitution expressly denied him, and an influence the most dangerous that can be conceived, to the peace, liberty, and happiness of the United States.

More succinctly, in a later section, "Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes."

Annals of 11th Congress - Pages 2421/2422 contains the above-noted rhetoric. The COngressional Record from this era also informs whether the 2nd amendment refers to "the people," as separate from an organized military fighting force, have the right to keep and bear arms.

-- and not a state right to determine which individuals are in its militia and that may bear arms ... --
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"Militia" is a term of art that roughly translates into "members of the public who aren't opposed to using deadly force." The state no more makes that determination than it makes the determination of who is born within its borders.
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States don't "form" militias. They may organize and/or equip the militia, they may call it out for duty. But the body itself, the militia, is simply "there" by virtue of some of the population being willing to use deadly force.
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Even taking your argument as "slaves are not part of the militia, and can't keep and bear arms," (to give force to the state being able to exclude certain people from "the militia") results in just that and no more. Since we no longer have slavery, the point "slaves can't keep and bear arms" is moot and without any effect. In historical effect, the exclusion of slaves would not be taken to exclude non-slaves from the militia.

-- the great body of evidence suggests that "militia" refers to a civilian defense force engaged during a threat to the common good. --
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And so, absent being engaged it (the militia) ceases to exist? What's your body of evidence for that proposition?
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-- it is merely to suggest that the great body of evidence points to a citizen defense force, not members of the public willing to use deadly force --
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What's the difference? My contention is that "the militia" is a body of citizens, some armed, others not, who self-proclaim the willingness and ability to use deadly force. So far, you have proposed to limit that corpus by excluding slaves. Who else is unable to self-proclaim that willingness?
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Browse Congressional Record: 1789-1824, paying particular attention to debates involving "the militia."

Your citations are fine, but your conclusion conflates (and equates) "highly organized militia" and "active duty" with the more general term, "militia." That the general public should be armed was not contentious. For an extended period, Congress was arguing about whether federal monies would be used to make arms available to anybody who wanted to buy them. There was not to be a standing army, because the public (the militia) was to be armed, eve that part of it that was not active, and even that part of it that was not under a militarily organized hierarchy.

cboldt -

You actively fail to see my point. A militia was organized, with hierarchy, uniforms, and an attempt to have uniform weaponry. It was also exclusionary; I'm happy you concede that "self-proclaimed" had nothing to do with "militia" but it's time for you to recognize that your statement:

"the general public should be armed was not contentious."

Does not reflect the reality that militia duty was reserved for persons who met all of the limitations of citizenship, age, and, importantly, not being slaves. It was not a choice, it was not "self proclaimed." In some southern states, as much as 1/3 of the male population were slaves and couldn't own guns. That is the "general public" we're talking about. I'm afraid I haven't conflated active duty or organization, but you have conflated "public" with "citizenry."

"One occupies that space simply by virtue of existing, being physically capable, and lacking grounds for conscientious objection."

How romantic, and how untethered to facts. Only (male) citizens, and only citizens of a certain age. While I think a citizenry existed, and was armed and organized into a militia, you think babes were born, then armed and ready to fall in line.

Your last point, "An answer in the affirmative puts that person into the class of 'militia,' whether the person is called into service or not" again fails the test put forth by your own source: militias were highly organized. They weren't born into it; they were trained, they bought their own uniforms and supplies, and often, guns. They didn't show up one day and say "Hey, I'm playing cavalry today!" But importantly, they weren't members just by existing, any more than I am a member of the PGA just by bringing my own clubs and golfing.

*~*~*

I'm no 2nd Amendment expert by any means (apparently neither is cboldt), but originally I wanted to point out that a Northern Whig might have his tongue firmly in cheek by alluding to an individual right to bear arms; it seems plausible to me that he was saying if that were true, then slaves have a right to bear arms, which in practical terms, they didn't. This has devolved into a semantic debate about the term "militia" and its membership, which cboldt insists has a wider application than history suggests (that cboldt's view is fairly romanticized, I concede).

It should be enough to note that only certain persons had a militia duty, while those who didn't were excluded, and most of those excluded (within those states, perhaps not at the frontier) did not bear arms. You can have your own opinion, but not your own facts.

Therefore, we are left with a few options. One presumption (advanced by cboldt?) is that the right precedes the militia duty: persons excluded from militia service (women, slaves, young, aged, insane) still had an individual right to bear arms, but most didn't bear arms by choice or by forcible restriction of their rights. (This begs the question why southerners would recognize the right, only to force their children to restrict it by force.)

Another presumption is that the duty precedes the right: exclusion from militia duty excluded one from the ability to legally to bear arms. If an insane person (slave, woman, etc) were not able to be part of a militia, that person could be restricted in the bearing of arms. (The problem with this argument is that it is not a right, but a privilege premised on militia service, the militia itself being the right of the state.)

A third is that they are not tethered at all; this seems to be the point made by the majority: states have the right to form a militia and individuals have a right to own guns; if there is no state there can be no restriction on the right (although that right itself is yet more restricted).

My opinion (subject to strong argument) is that the founders reached a compromise: the North wanted an individual right, the South wanted a state right to restrict so that freed blacks couldn't go south and cause insurrection. The result is a compromise of literal gobblydygook, but seems to premise the second option as the least common denominator, at least within the sovereignty of a state.

So back to my original post: "I would be far more persuaded by a prominent slave-holding southerner arguing for an individual right to bear arms than a Whig north of the Mason-Dixon line (like Ingersoll)."

Is there any evidence that southern states argued for an individual right? If not, aren't we talking about a living, breathing, changing definition of a Constitutional right?

cboldt -

Right: those who are "callable to duty without being called to duty" are not a "militia" in my opinion, or in any definition I have seen, except your very broad definition, which I don't accept. I may be a "golfer" (although my brother would *strongly* disagree) without being in the PGA, I am not a member of the PGA. Just as I can have a gun and not be a member of the militia, even though I am of age, strong enough and willing, and do have access to guns. So while I understand your "golf militia" :) analogy, there were people restricted from joing the militia just as there are people restricted from joining the PGA. And that is the point that you've once again avoided.

I am unaware of conscientious objector status to militia duty. Citations?

"If not "called," then not in the militia?" Right. Keep in mind though that "called" could be reserve units that show up to a parade once a year; it is still organized.

P.S. Not only would I say you are a golfer. I would also say you are a member of the militia, as you claim to be a citizen, of age, and physically capable.

Apologies. Show me a black man slave called into the Virginia militia who was punished for not showing up armed.

Sorry, but you erected your strawman yourself. Low hangin' fruit, as they say. You can't rely on a quote like "the Militia comprised all males physically capable of acting in concert for the common defense" without recognizing, especially in the context of what we've been saying, that it is ripe for parody.

The logical fallacy thus: The union is comprised of all 50 states. Therefore, all states must compose the union.

But there are states in Mexico.

Do you see? Yes, the militia was all males. Not all males were in the militia. Most, OK? Fine. Just not all.

That quote from Miller does not reinforce your position that a person is already in the militia before they are called. It weighs heavily that a person must be a citizen. It says when called, they must then be prepared. Called first, appeared as militiaman later. Then organized into a militia. Easy timeline.

You might be right though, I've left that open that all civilian males were militia-men, even before they were ever called, but I find that incongruent with the strict organization of the militia themselves; that organization didn't just organically sprout. So I'm yet unconvinced by your argument. But others may be, so please convince them.

Since we're talking "bottoming out" your argument runs aground here:

The state determined who were "called" into militia service, regardless of what they thought of themselves; some didn't show and were punished (see your 1781 Act), some probably prepared since they were 8 years old, Mel Gibson style. It doesn't matter; the state determined who was called. The state has that right, as secured by the 2nd Amend. There is a long-standing tradition in most every state of recognizing this state right, especially in the South, of excluding a large percentage of able bodied persons, especially black men. Pretending that people and states didn't exercise this right is tantamount to pretending there is no state right to determine militia composition whatsoever. Which is why *you* insist the militia exists regardless of a call-up by the state. At least you're consistent, even if the argument isn't: by definition (and you concede) the state called some people, not others. So the state has the discretion to determine its militia composition, regardless of what the wanna-be militiamen think.

You missed slightly where my argument hits bottom (a bit further afield than where yours does, I'll submit). Where my argument bottoms out is this:

Because slaves every non-white, non-male, non-English-speaking, not insane, non-militia member etc. "didn't possess an individual right to keep and bear arms, there is no individual right to keep and bear arms" the state may exclude them from the arm-bearing militia, and it has the right to do so. Otherwise, your arms can be taken away, as they were taken away countless times. This was reaffirmed in Dred Scott: "It would give to persons of the negro race, who were recognized as citizens in any one State of the Union ... the full liberty ... to keep and carry arms wherever they went." (sorry, I stink at links)

Which I think pretty conclusively shows that the original intent was to make sure the "right" was in the hands of the state to severely restrict access to arms.

Buuuuut (rub is here) because we've changed the definition of "citizen" to include most of those excluded classes, should all now have the right to bear arms? 14th Amend, reverse incorporation? Yeah. Hecks yeah.

I submit maybe. But then the state can still define militia, either by citizenship or by a more exclusive standard, as they have in the past.

-- It says when called, they must then be prepared. Called first, appeared as militiaman later. Then organized into a militia. Easy timeline. --
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And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves

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How do you get past "appear bearing arms supplied by themselves?" That the person called didn't have a right to arms until being called? So, called, that calling triggering a right to bear arms, then appearing? Is that how you construe the statement?
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-- Which I think [Dred Scott v. Sandford] pretty conclusively shows that the original intent was to make sure the "right" was in the hands of the state to severely restrict access to arms. --
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You have plenty of nerve, accusing me of cherry picking quotes, when you picked one line out of Dred Scott, without including the rationale for exclusion of rights (not just the right to keep and bear arms) that appears in that same paragraph.
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With Dred Scott as your supporting authority, you "pretty conclusively show[] that the original intent was to make sure the 'right' was in the hands of the state to severely restrict access to arms."
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Is this what you advocate as an appropriate government, of, for and by the people, empowered to make sure the 'right' to severely restrict access to arms was in the hands of the state?

The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States, to suppose that they regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation; or, that when they met in convention to form the Constitution, they looked upon them as a portion of their constituents, or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens.
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It cannot be supposed that they intended to secure to them rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State.
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For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.
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And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

I rest my case.

-- Please maintain a modicum of respect. --
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I gave you more respect than you deserve, and certainly more than you showed me. No more.
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You have either a severe reading comprehension problem, or you are deliberately misleading with your citation from a dissenting judge (Pike) in State v. Buzzard, 4 Ark. (2 Pike) 18 (1842). I'm not going to do more than link the case here, and call you flat out a liar for claiming that your quote represents the sentiment of the court or the outcome of the case vis-a-vis "individual right to keep and bear arms." Anybody who reads this is free to check the dissent for themselves, and decide which one of us is full of shit on that point.
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I'm not going to bother with the rest of your post, or further with you.

Excuse me, where did I fail to show you respect? Did I accuse you of creating a straw man? Did I ever say you don't deserve respect? I disagree with you. Many people do; I've been trying to make this a little lighter with jokes about low hangin' fruit and my lousy golf game.

Hey I'm sorry if I pissed you off. You take this pretty seriously. I would have you know that I personally think that having a Federal individual right will actually lead to a faster erosion of the day-to-day ability to use arms; see Scalia's restrictions as a starting point in Heller, or Eric Posner's evisceration of his "originalism". But I've been trying to say that my personal opinion of what is good is irrelevant to the history of state dominion over arms control, most notably over the restriction of slaves and freed slaves access to guns.

You seem to think that a 5-4 decision in Heller has opened and shut the argument; for most of this country's past it was a state right. It's odd that the "conservatives" defer to state rights so often but not here. I will admit you have educated me about a militia, though I think your position is pretty absolute. At least I'm gracious enough to grant a point or two; you've definitely cleared some of my softer points away.

As far as Buzzard goes, you're right, it was a characterization of the majority opinion by the dissent. Juicy language, though. Does my quote really mislead?

Majority:

"I also deem it proper to remark here, that, in my opinion, the provisions contained in the article under consideration, were designed to furnish the people of the United States precisely such security for the preservation and perpetuation of their civil liberty and republican institutions, as it was the object of those who framed the Constitution of this State to provide for those subject to its jurisdiction, by the 21st (p.27)sec. of the 2d art. of the Constitution which declares, "that the free white men of this State shall have a right to keep and bear arms for their common defense"; thus indicating, in terms too plain to be misunderstood, that the sole object of the latter in securing this right was to provide, beyond the power of legal control, adequate means for the preservation and defense of the State and her republican institutions."

Continuing...

"I am therefore, after a careful and deliberate consideration of the question, of the opinion that the enactmnent of the Legislature, above quoted, is in no wise repugnant either to the Constitution of the United States or the Constitution of this State, but is in every respect binding as a law of the land. Consequently, the Circuit Court erred in quashing the indictment, and thereupon discharging the defendant from the prosecution. And that judgment ought to be reversed."

Concurrence 1:

"The motive, then, for granting this power to keep and bear arms could not be extended to an unlimited, uncontrolled right to bear any kind of arms or weapons, upon any and every occasion; still less the terms, for they are restrictive in their language. That a well regulated militia is necessary for the security of a free State, and that the right (p.31)of the people to keep and bear arms ought not to be infringed, are principles not in the slightest degree encroached upon by the legislative enactment of this State prohibiting the wearing of concealed weapons."

It was a sloppy mistake, but I don't really think it detracts from my overall argument: for most of this country's history, who could bear arms was determined by state laws, most notably among slaves and freed slaves.

You are a real charmer. Now I'm a disingenuous twit? That's respectful. I bet you win lose a lot of arguments that way. Next up, cboldt will smash his beer bottle and ask me to settle this outside.

Look, you made the mistake of thinking there was a different dissent, also. I made the mistake of not putting a huge block quote from one of what... 4 cases I cited. I didn't mean to deceive; it was a mistake. BTW, you've been pretty sloppy here as well, citing 10 USC 311 for what a "militia" was.

I'm not saying that states should treat people like slaves. That would be a stupid argument.

Frankly, I think it's a pretty stupid argument to say that individuals have always had a right to arms when clearly states have restricted them, not just to slaves but to all non-white males.

But you can't seem to wrap your head around the collectivist argument, then you scream and shout insults. Niiice.

OK.

You refer to the "National Guard" with contemporary statutes. That is at least as "deceitful" in purpose as my mistake.

I'm glad this isn't the Republic of Cboldt where your last word is law; that you "considered it and rejected it" basically means nothing: you cannot even repeat the argument I've made to you.

I will walk away from this able to easily brush aside the next person who says "Look here. All males, of age, are in a militia. Militia-men must show up at arms. Therefore, all males have a right to bear arms," merely by pointing to statute about freed black men who couldn't.

You, however, will smash a beer bottle and throw insults.

As a personal aside, I suggest you consider not drinking and posting.

Hey now. I didn't lie about anything.

If you go back and re-read this thread, you started with insults, and swears. I honestly thought you were drinking at 10:30.

Look at how you equate "any historical observation" with my thumbnail of your argument above, and then accuse me of "illogic and misrepresentation."

By the way, I *will* take thoughtful and factual argument into consideration, and if I'm wrong, I'll flip. I haven't internalized this debate like you have.