A complete understanding of the Second Amendment

[FWiedner]

A complete understanding of the Second Amendment

by David Hardy

Conventional approaches to the Amendment amount to: (1) cite a Framer who referred either to the militia as a State-run institution, or a Framer who referred to an individual right, and (2) argue that proves the Amendment was meant to protect only a State institution or an individual right. Oh, and (3) explain how the Framers who fall into the other class were really just sloppy with their wording. They said militia, but meant individual right, or said individual right, but were really thinking of militia.

But what warrant do we have for assuming that the framers -- an intellectual elite, of a period distinguished by its clear thinking and precise writing -- were just being sloppy? Or that Jefferson, who thought we should have revolutions every 25 years or so just to keep in form, and John Adams, who feared popular revolt almost as much a tyranny, had exactly the same views on this matter?

What if we were to approach the Amendment in a scientific manner, assuming that when two men said different things they may have meant different things, and that our duty is to explain ALL the history as best we can?

This is a theme I began in my article "The Second Amendment and the Historiography of the Bill of Rights" (linked in the sidebar). Let me summarize it ...


At the time of the framing, there were two predominant American political philosophies.

(1) Classical Republicanism, which traced back to Harrington and thence to Machiavelli. This did not emphasize rights as such (a properly created republic would protect personal rights anyway, and a defective one would be stopped by mere "parchment barriers" of written declarations). Its core was a triple relationship between property, political power, and force. Force took the form of the militia, composed of landowners, who alone could vote. The militia could be as powerful as anyone wanted, yet pose no danger. It couldn't revolt to seize power: as voters, they already had the power. Nor to seize property: as landowners, they already had the property. (Thus the concept resolved Machiavelli's dilemma, that a hired army must either be too weak for defend you or strong enough to take over, for "there is no reason why an armed man should obey an unarmed one"). To this point of view the militia, as an institution, is essential. (I say as an institution: note that the amendment refers to a 'well-regulated miltia"--at the time well-regulated meant well trained, well organized. It's not enough that every citizen be armed, they must also be disciplined and trained. The Classical Republicans also believed that universal military training would promote unity, patriotism, and political responsibility).

(2) What I call proto-Jeffersonianism. This was an outgrowth of the first. It emphasized individual rights (even as against a properly organized government). Also, it went beyond Classical Republicanism in wanting to give voting rights to non-landowners, in what is today termed universal manhood sufferage (women came in later, of course, although Richard Henry Lee, the eccentric Virginia Classical Republican, was in favor of giving landowning women the vote back in the 18th century).

So what if we had two different political groups wanted two different approaches to citizens and arms?

Look at the history. George Mason (a thoroughgoing Classical Republican) and Thomas Jefferson (a, well, Jeffersonian) in 1776 both proposed a Declaration of Rights for Virginia.

Mason's draft, which was adopted, had the provision: "That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state..." No mention of an individual right. (In fact, militia service was not a right at all, it was a duty). BTW, voting was restricted to landowners and running for office restricted to major landowners.

Jefferson's draft provided: "No freeman shall be debarred the use of arms." No mention of the militia.

Shortly thereafter, Pennsylvania adopted its own first constitution and bill of rights. This had an interesting political history. Patriot forces had to deal with two antiwar blocs -- the major merchants, who wanted British trade, and the Quakers, who were as always adverse to war. By a variety of clever political tactics, they neutralized both. The resulting convention was dominated by proto-Jeffersonians. They adopted a declaration of rights which was almost entirely taken from that of Virginia ... with one major exception. Out went the statement about the militia. In its place went a clearly individual right: "the people have a right to bear arms for the defence of themselves and the state...." With it went near universal manhood sufferage -- all militia members and taxpayers got the vote.

The two approaches (either praise the militia, or protect an individual right, but don't do both) stayed separate for years and, as I develop in the article, tracked provisions for voting. States and ratifying conventions that gave universal manhood sufferage or were dominated by proto-jeffersonians did the one, those that gave only property owners the vote did the other. Until the Virginia (federal) ratifying convention of 1788, where the two were both recognized. Why not? They were hardly inconsistent. Protect individual arms AND call for a militia, thus pleasing both political groups.

This approach has the advantage of explaining all of the Framers' statements, rather than just those that support one's own view, and of taking them all at face value, rather than assuming that many Framers became strangely inarticulate when arms and militia were involved.

http://armsandthelaw.com/archives/2005/04/a_complete_unde.php#more

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[xtrembowhntr]

great read BTW...... the way i see things is that ALL gun laws are unconstitutional. with that said, our rights have been chipped away little by little by the way by the liberals. any mention of the term "malita" in todays society, you are looked at like an "extreme right wing fanatic".

i will add a few more quotes from our founding fathers......


The WISDOM of The Founding Fathers
and the
INDIVIDUALS CONSTITUTIONAL RIGHT
to Gun Ownership

 
 

George Mason, called the father of the Bill of Rights, said, "What is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them." James Madison, called the father of the Constitution, said of tyrants, "[They were] afraid to trust the people with arms," and lauded "the advantage of being armed, which Americans possess over the people of almost every other nation."




Alexander Hamilton, replying to accusations that the military power granted to the federal government in the Constitution would lead to tyranny, pointed to the armed citizen as a counterweight: "that army [the Regular 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." .




"The peaceable part of mankind will be overrun by the vile and abandoned while they neglect the means of self-defense. [Weakness] allures the ruffian [but] arms like laws discourage and keep the invader and plunderer in awe and preserve order in the world. Horrid mischief would ensue were [the good] deprived of the use of them. The weak will become a prey to the strong." ..........Thomas Paine




"GOD FORBID WE SHOULD EVER BE 20 YEARS without such a rebellion,what country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms."

Thomas Jefferson, author of America’s Declaration of Independence, to a friend in 1787 regarding Shay’s Rebellion.

 

They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safty

---Benjamin Franklin, Historical Review of Pennsylvania, 1759.

 

Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!

---Benjamin Franklin 1759

A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks.

---Thomas Jefferson to Peter Carr, 1785. The Writings of Thomas Jefferson, (Memorial Edition) Lipscomb and Bergh, editors.

 

One loves to possess arms, though they hope never to have occasion for them.

         --- Thomas Jefferson to George Washington, 1796. The Writings of Thomas Jefferson, (Memorial Edition) Lipscomb and Bergh, editors.

 

Laws that forbid the carrying of arms... disarm only those who are neither inclined nor determined to commit crimes... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.

       --- Jefferson's "Commonplace Book," 1774-1776, quoting from On Crimes and Punishment, by criminologist Cesare Beccaria, 1764

 

We established however some, although not all its [self-government] important principles . The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed;

  --- Thomas Jefferson to John Cartwright, 1824. Memorial Edition 16:45, Lipscomb and Bergh, editors.

 

No freeman shall ever be debarred the use of arms.

---Thomas Jefferson: Draft Virginia Constitution, 1776.

 

[W]hereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.          

---Richard Henry Lee, The Pennsylvania Gazette, Feb. 20, 1788.

 

The Virginia delegation's recommended bill of rights included the following:

That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.

 

The whole of that Bill [of Rights] is a declaration of the right of the people at large or considered as individuals...t establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of.
  ---Albert Gallatin to Alexander Addison, Oct 7, 1789, MS. in N.Y. Hist. Soc.-A.G. Papers, 2.

Gallatin's use of the words "some rights", doesn't mean some of the rights in the Bill of Rights, rather there are many rights not enumerated by the Bill of Rights, those rights that are listed are being established as unalienable.

"The great object is that every man be armed. ... Everyone who is able may have a gun." Patrick Henry during Virginia's ratification convention (1788) in "The Debates of the Several State Conventions on the Adoption of the Federal Constitution" at 386, Jonathan Elliot (New York, Burt Franklin: 1888).
Could Patrick Henry be more specific? After all, he was directly involved in the process of adopting the U.S. Constitution and Bill of Rights.



"That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms." Samuel Adams during Massachusetts' U.S. Constitution ratification convention (1788), "Debates and Proceedings in the Convention of the Commonwealth of Massachusetts," at 86-87 (Pierce & Hale, eds., Boston, 1850).

Could Samuel Adams, an American Revolutionary leader who was actually there during the process, as was Patrick Henry, have been more clear about an individual's right to private gun ownership?



"The people are not to be disarmed of their weapons. They are left in full possession of them." Zachariah Johnson Elliot's Debates, vol. 3, "The Debates in the Several State Conventions on the Adoption of the Federal Constitution."

"… the people are confirmed by the next article in their right to keep and bear their private arms." Philadelphia Federal Gazette June 18, 1789, page 2, column 2, article on the Bill of Rights.

"Firearms stand next in importance to the Constitution itself. They are the American people's liberty teeth and keystone under independence. … From the hour the Pilgrims landed to the present day, events, occurrences and tendencies prove that to ensure peace security and happiness, the rifle and pistol are equally indispensable. … The very atmosphere of firearms anywhere restrains evil interference – they deserve a place of honor with all that's good." George Washington, America's first president, known as the father of our nation.

"The constitutions of most of our states assert that all power is inherent in the people; that … it is their right and duty to be at all times armed. … " Thomas Jefferson, America's third president in a letter to Justice John Cartwright, June 5, 1824. ME 16:45.

"The best we can help for concerning the people at large is that they be properly armed." Alexander Hamilton, The Federalist Papers at 184-8. Hamilton was a lawyer and delegate to the Continental Congress.



Celebrate the Constitution
America has forgotten the two concepts that made her special as a nation – two unique factors that set her apart from the world from the start. First, the Founding Fathers wrote a Constitution that strictly limited the role of the federal government in the lives of Americans.

Secondly, the framers of that Constitution spoke eloquently about the fact that only a moral people – a nation of Godly people with common spiritual and social values – were capable of self-government.


 
SOURCE: Celebrate the Constitution, Joseph Farah
September 17, 2002, WorldNetDaily.com

 
 

The private bearing of arms, then, was seen by the Founding Fathers as a positive good. The new government could not oppress the people because a citizenry "properly armed and equipped" would protect their own rights. Citizens were even required to have guns. States enforced ownership at yearly militia musters when all men were required to present their guns and ammunition for inspection

[FWiedner]

Alexander Hamilton, replying to accusations that the military power granted to the federal government in the Constitution would lead to tyranny, pointed to the armed citizen as a counterweight: "that army [the Regular 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.

For some reason, I find this one hitting closest to home.

Especially the "...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" portion of the quote.

I wonder, as compared to the time that this was spoken, where do we stand?

 :oops:

[unspellable]

We in the gun community tend to do a lot of ranting and raving about the second amendment.  But if you bother to look, the rest of the constitution is equally ignored by the powers that be.

For example we have recently had a flurry of federal cases over displaying the ten commandments in the county court house.  There is a lot of debate on both sides of this issue but I never here any body ask the real question.

The first amendement reads in part, "... Congess shall make no law respecting an establishment of religion."  Never mind what an establishment of religion is.  It doesn't say the states, or the counties, or the townships, or the municipalities, or the school district, or the people.  It says congeress.  So explain to me how the federal government has any standing whatsoever in such cases.

The fact that they do meddle in such cases is itself a direct violation of the first amendment.  And every one goes around talking about whether or not the display is a violation.  They're asking the wrong question.

Now if the term "people" in the second amendement means the state government, then what does the term "congress" mean in the first?  Today';s definitons are backwards.  The term "congress" is taken to impose a restriction upojn both the people and any and all levels of governement, while the term "people" is taken to impose a restriction only upon the federal government whcih they then ignore any way.

With our recent "incumbant protetcion act" regarding political advertising, free speech went out the window.

There is talk of making the District of Columbia a state, that's strictly unconstitional in more than one regard, one of which being that it's part of the State of Maryland.  If the federal governmaent makes any change in its status it reverts back to Maryland.

the constitution reserves powers such as meddling in education to the states.  What's the federal government doing there?

[Raimford]

What we first must understand is that “all is not what it seems”.  I quote Will Rogers quite often “It’s not what you don’t know that’s gonna hurt you.  It’s what you know that ain’t so”.  Let’s take a peak at what we “know that ain’t so”.  

We are citizens of the United States.  Correct?  No.  We are Citizens of the State in which we inhabit.  I personally am an Oregon National/Citizen.  To be a citizen of the United States, means that you are a citizen of the Federal Government.  A lot of you, by now, are wondering if I’m some sort of raving lunatic, but let’s continue.

We have choices in life.  To go where we want to go, to believe what we wish and to be who we wish to be.  But, what if we are taught by a state run educational system to be something that we are not.

 I remember in my senior year of high school I asked my American Government teacher if I was “sovereign”.  He replied “No”.  I, being young, naïve and impressionable by authority, believed him.  I read the 14th Amendment in the Bill of Rights and concluded that I was “…a citizen of the United States subject to the jurisdiction thereof …”.  I might add that the educational system did little or nothing to attempt to dissuade me from this point of view.  Little did I know at the time there are varying degrees of sovereignty.  

We function in a society and relinquish certain portions of our sovereignty to our respective state governments via a constitution.  The police powers of a state are there to protect the safety, health, morals and welfare of the people.  Notice that I said protect not provide.  We, as responsible adults are to provide for our own safety, health, morals and welfare.  This concept our Founding Fathers understood very well.  The state protects via license.  For example, a hairdresser has to pass a test and obtain a license to practice in his/her profession of choice.  This is to “protect” the customer from unknown and unseen sanitary conditions and practices.

I have been looking for a particular quote from Aristotle.  Being unable to find it I will attempt to paraphrase it as best I can.  He states that “from the beginning of man’s attempts at government, man has realized that governments endure only as long as the youth of society are properly educated”.

Oregon has in its statutes at large and since 1953 codified in the Oregon Revised Statutes at 336.057 that each student every year from 8th grade through 12th grade and in all 4 years of college will be taught one course in the Constitution of the United States and one course in United States History.  Needless to say this is not done and for obvious reasons.  Does your State have similar statutes?  Are we properly educated?

The people of the original 13 Colonies revolted from England and formed the first 13 Nations of the United States of America.  Notice I substituted nation for state for they are synonymous.  At Article I of the Articles of Confederation in 1777 the style of the confederation was to be known as the United States of America.  In 1787 the 13 Nations created the United States via the Constitution of the United States and delegated certain portions of their sovereignty to establish an American Society of Independent Nations known as, you guessed it, the United States of America.
The United States, a federal government, is not sovereign with respect to the 50 Nations/States of the United States of America.  Under the Constitution it acts as an agent for the 50 States in the public international forum.  In the private international forum it is a foreign state and only has the authority delegated by the Constitution of the United States within the 50 States/Nations.

But why does the United States exhibit such authority within the States of the Union, you ask?  Because you have declared on your voter registration card that you are a citizen of the United States or signed a jurat that you are within the jurisdiction of the United States.  You, being a United States National/Citizen are a resident alien living in one of the States of the Union and the United States is legislating for its citizens.  When you vote for your “Governor”, “Senator”, “Representative”, “State Legislature”, “County Commissioners”, “Mayor”, “City Council” etc. you are electing an official as an office holder of an Instrumentality of the Federal Government.  The Federal Government is just protecting one of its own and believe me they, the Federal Government, protect their agents and tell them what to do and what to say.  

A whole lot of questions should be coming to mind right now (besides; Who is this raving lunatic?)  One might be:  Am I voting for the President of the United States or the President of the United States of America?  See Article II, Section 1 of the Constitution of the United States.

When we look at the wording of the 2nd 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.”, does that prohibit the Federal Government from enacting Legislation on Gun Control for its Territories and citizens wherever they may be?  Remember, it says “free State” and the United States is not a free state.  An Act of Congress only has authority within the territory of the United States unless a contrary intent is evident.  That is to say. the United States only has authority to enact laws that bind the several States of the Union under the delegated authorities enumerated in the Constitution itself.  Is the Federal Government accountable under the Constitution when nobody lives within the free States of the Union?  Does the United States of America as our Founding Fathers brought forth, still exist?  Or has “government of the people, by the people, for the people perished from the earth?

We the People are responsible for allowing ourselves, our children and our children’s children, to be taught incorrectly in our schools.  I feel that it all boils down to understanding “WHO WE ARE” and “WHERE WE ARE”.  If we are taught and believe that the United States is sovereign and that we are its citizens and subjects, who are we to blame?  Only ourselves.

Perhaps there are still some among you who still feel that I am a “raving lunatic”.  I leave you with the words of Dresden James;

“A truth’s initial commotion is directly proportional to how deeply the lie was believed.  When a well packaged web of lies has been handed to the masses over generations, the truth will seem utterly ridiculous and its speaker a raving lunatic.”

Thanks for the few moments of your time and I hope I’ve made a difference.

Douglas Smith
An Oregon National/Citizen

Mr. Raimford;  This particular post is somewhat applicable to this thread, and that is the only reason that it has not been deleted. You are welcome to particpate in this forum and contribute anything that you believe is pertinent to the subject thread.   If you have some specific agenda to address please start a thread so that it might be discussed directly, and do not continue to copy the same post from thread to thread fishing for a response.  FW

[williamlayton]

By that thought/arguement/theory you are a citizen of a county/Parish, not a state. Where does your thought end?
Blessings

[Raimford]

Mr. William Layton

In trying to be as brief as possible in my above thread and get a point across,  I've left out information that may have helped you understand more completely my thoughts on the encroachment of our government into, not only the 2nd Amendment, but all aspects of our lives.

First, Citizenship/Nationality goes with sovereignty.  A county, city or parish within a state is not the sovereign.  These entities were created by the state.  The people are sovereign and have formed the state and by so doing have had to relinquish a certain amount of their sovereignty through a written constitution. There is a maxim of Law that states "The creature cannot be greater than its creator."  The people have created the "state" and therefore the "state" cannot be greater than the people and must stay within the written directives of the constitution.

The State in its interactions with other States of the Union acts as the Sovereign and the people are its Citizens/Nationals.  I would recommend that you read the culminating paragraph to the Declaration of Independence and the California Supreme Court cases: Exparte-Frank Knowles, 5 Cal. 300 and Tashiro v. Jordan 201 Cal. 236.

I live in Beaverton, Oregon and the Mayor of Beaverton likes to refer to the Inhabitants within the corporate city limits as citizens of Beaverton.  This designation has no legal or Lawful standing.  I call the Mayor "his imperial majesty".

"All who have meditated on the art of Governing Mankind are convinced that the fate of empires depends on the education of youth".  Aristotle