Thursday July 30, 2015
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This is not about gun control; it is about the meaning of the Second Amendment. Before we can even begin to discuss gun control of any kind we first have to agree what the ground rules are. To do that we have to know what the Second Amendment means. I believe the answers exist and I am going to post them for you.
Text of 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."
I genuinely believe that the references I am going to quote for you have the power to end Second Amendment arguments. Why? Because those arguments always come down to the same old semantics and the same old semantics-driven questions: What was meant by "militia?" If the state is "secure" do the people need guns? Is the right to "keep" guns the same as the right to own them, or does it mean we are allowed to store the ones we are issued? Is the right private or public? Individual or collective? Why was this comma moved over here? Why was that one taken out? Or that one put in? And on and on forever.
Questions of semantics cannot be answered by arguing. The argument will never end. Why? Because those on opposite sides will keep coming up with reasons to prove what they believe. That's doing things backward; we should first find out what the amendment means, and then use that knowledge to show what we should do. We can't every well do that by digging up the men who wrote the Second Amendment and shaking them until they spill the beans, can we? So would it not be better to see if direct, unambiguous answers to the questions we have already exist?
What are those questions? I'll put them in the second post.
What do we need to know about the Second Amendment?
We need to know on what PRIOR law, if any, the Second Amendment was based, WHAT that prior law said, and--if it is possible to discover it--WHY it was written. If we know those things we can see for ourselves why our forebears, following a prior example from the mother country, felt that the right to bear arms needed to be put into black letter law, as had been done in the past.
We need to know whether or not our forebears bothered to WRITE DOWN what the Second Amendment meant at the TIME it was up for ratification, instead of wasting our time second guessing what its wording means two hundred years later. If we knew what THEY said it meant, and WHY they said they wrote it, we wouldn't have to guess.
And we need to know what the federal GOVERNMENT itself said about the meaning of the Second Amendment AFTER it was ratified and made the law of the land. That will tell us how it was viewed by those who had to apply it to the everyday life of a new nation.
Incredibly enough, would you believe that documents exist which clearly answer all three of those questions?
I'll pose them again for you, in a more precise form:
One. If the Second Amendment was based on the English Bill of Rights, then what gun rights did the English Bill of Rights grant? To whom? For what purpose?
Two. What were the people of America, and the states, told about the Second Amendment, in writing, at the time they were asked to ratify it?
Three, what did the federal government--of the day!--have to say about the Second Amendment after it was ratified, and how did the federal government apply that amendment in its first few years?
I think I have found the answers. And I have references for you. See if you agree.
For the answer to the first part of Question One--what rights Englishmen had under their Bill of Rights--we are on sound ground. In Parliament, on April 27, 1920, while introducing the government's "Firearms Act" in the House of Lords , the Earl of Onslow, charged with task of explaining to the House what the proposed act was intended to change, stated that up to that date "any person could purchase and keep in his possession without any restriction a firearm."
That answers, without the slightest possibility of ambiguity, to whom the rights were granted, and what those rights were: "Any person" and "without any restriction any firearm." (Note 1)
Still concerned with Question One, and the answer to why the right to "purchase and keep in his possession without any restriction a firearm" had been granted, we go to two more English Authorities. One is the great English historian, Thomas Macaulay, who in 1850 said that the right to keep and bear arms was "the security without which every other is insufficient." (Note 2) His statement was echoed and amplified in 1877 by James Patterson when he wrote, "In all countries where personal freedom is valued, however much each individual may rely on legal redress, the right of each to carry arms--and these the best and the sharpest--for his own protection in the face of extremity, is a right of nature indelible and irrepressible, and the more it is sought to be repressed the more it will occur."
So there is no doubt what the English Bill of Rights intended to do and why the right to bear arms was granted; it existed for "each individual" and for "his own protection." (Note 3.)
Question Two is critical, for at the time the Second Amendment was written, the exact meaning of each of the first ten amendments had to be explained to the people, and to the states. Otherwise, how could they judge whether or not they agreed with, and should ratify, each of them? Clarity was essential. For that reason, the first ten amendments were explained in Philadelphia, the national capitol at the time, in two separate newspapers, and the explanations were reprinted elsewhere for all to read. The purpose of the Second Amendment was explained this way: "As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed ... in the right to keep and bear private arms."
Notice that it says "confirmed ... in the right," clearly meaning that the right was a natural one which already existed, and that the explanation further used the term "private arms" to eliminate any possibility of a misunderstanding. Notice also that it just as clearly said that the reason for that right was to prevent the rise of tyrannical government. How much clearer could an explanation be? (Note 4.)
Question Three in next post.
Question Three is also critical, because a question might reasonably be raised as to whether or not the Federal Government, once formed, took the same view of the Second Amendment as that held by the people and the states. Any dispute between them as to its meaning would muddy the waters and leave lingering doubts. However, when George Washington became the first president of our nation, his choice for the highest legal authority in the federal government, the Attorney General, was William Rawle. Rawle, it happens, wrote of the Second Amendment, speaking of its prohibition of infringement upon the right to keep and bear arms. He said, "The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give Congress any power to disarm the people. Such a flagitious* attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."
(* A rarely used word today, flagitious means "criminal or villainous.")
So you see, the highest ranking legal authority of the newly formed Federal Government clearly stated that neither that government nor the states had any power to disarm the people because the Second Amendment took away that power. (Note 5.)
Thus endeth* forever any claim that the right to keep and bear arms is not individual, that it pertains only to those who are part of a militia, that the right of our English forebears to bear arms was different or limited, that the right is granted for some other reason than private safety or control of a government out of control, that the people, and the states which ratified the Bill of Rights, did not clearly know what they were approving, or that the federal government saw it it a different light.
(*Having fun with words because I am happy!)
At last! An end to all the semantics! I'll put the five references in a second post while you dance around the room.
Note 1: "Parliamentary Debates," House of Lords, new series, 39-1025.
Note 2: Thomas Macaulay, "Critical and Historical Essays, Contributed to the Edinburgh Review," Leipzig, 1850, pp. 154,162.
Note 3: James Paterson, "Commentaries on the Liberty of the Subject and the Law of England Relating to the Security of the Person," 2 vols, (London, 1877), 1:441.
Note 4: "Philadelphia Federal Gazette" and "Philadelphia Evening Post," 18 June 1789, no. 68, vol. 2, p. 2, repr. by "New York Packet," June 23, 1789, p.2, col. 1-2, and by "Boston Centenial," 4 July, 1789, p. 1, col. 2.
Note 5: William Rawl, "A View of the Constitution of the United States of America," (Philadelphia 1829) pp. 125-26.
There you go, folks. You now have the meaning of the Second Amendment as explained at the time by the men who wrote it, you have the English law which preceded it and after which it was modeled, and you know why the people who wrote the Second Amendment said---at the time--why it was written.
If you want to, you can download load it, print it, and hand to anyone who gives you a hard time about it in the future.
One more thing. If anyone wants this whole thing in one piece all he or she has to do is e-mail me and I'll send you a copy in a reply.
And this makes a new record. A first post that goes on for 5 pages. I hereby claim the Diarrhea Of The Keyboard Award for the year 2013. :-)
All the academia machinations aside, it all boils down to this. The framers of our Constitution wanted to insure that the "common man" had the ability to posess and use his firearms for what reason you ask? First, to defend his family, property. Secondly, to guard against and use force of arms,if necessary, to overthrow and defend one's self against a corrupt and tyrannical government. Simple as that. That is what the current Federal government fears and wishes to eliminate by any means possible. Their stated ruse cover intent is to reduce gun violence and save the children. You know, like their fast and furious gun scheme.
"No free man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government" "This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it or their revolutionary right to dismember it or overthrow it."
-- Abraham Lincoln, 4 April 1861
-- Thomas Jefferson, 1 Thomas Jefferson Papers, 334
"The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that's good"
-- George Washington
"The best we can hope for concerning the people at large is that they be properly armed."
-- Alexander Hamilton, The Federalist Papers at 184-188
"Among the many misdeeds of the British rule in India, history will look upon the act of depriving a whole nation of arms, as the blackest."
-- Mahatma Gandhi
"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
-- Benjamin Franklin, Historical Review of Pennsylvania, 1759.
Thanks Tom for all the research and effort you put in bringing that all together. It has always baffeled me why for over 2 hundred years or so, there was very few who would evn argue the "intent" of the 2nd Amendment, but over the last few decades, supposed enlightened intellectuals have proceeded to take a position that the Founders/wrtiers of our most treasured documents didn't mean what they said. Many of those folks simply will not accept historical fact if presented and those who truly do realize the original intent, are now taking the position that the Constitution of the United Stastes is no longer pertinant in the "modern era" and needs to either be abolished or re-written to address our more "enlightened" world views. I often give thanks that I am entering the final phase of my life and will probably not be alive when those events take place, if ever. I also cannot understand the current and last couple of generation's blindness to the eventual distruction of their future via national indebtedness and broadened government control . You and I and most who post here will not feel the full effects of those changes, but I am saddened that my grand-daughters certainly will. One can only imagine, as they confront the "New World" they will find themselves in, just how angry they will be that we not only fairly refused to lift a finger to prevent it, many promoted it and aided it blindly.
Well Tom, that may go viral. I'll e-mail you to request the whole thing in one lump (:-))
I'd like to ask permission of you, and Don as well, to use the info you've provided here in some e-mails that I'd like send out.
BTW, I was talking to a game warden tonight and asked him if he knew of any of his amigos, or state troopers who were discussing any of these things. His answer was "Oh, Yes. Go to http://oath-keepers.blogspot.com/ and http://oathkeepers.org/oath/ to see just how we've been talking about it". When I looked I found it was greatly heartening to see that we aren't alone in this.
I asked if he was aware of the Printz vs. United States decision in 1997 wherein the Supreme Court had stated that local authority trumps federal or even state authority when it came to 2nd amendment rights. Meaning that these men who have sworn this oath will keep the feds from usurping the 2nd Amendment.
So, you might want to contact as many military, national guard, state and local authorities as possible and see if they are on board with this movement. I think Obama anticipated this and that is why he wants his own "national security force".
Enlightening, to be sure.
Why do we have to follow English law? Are all our laws from there?
I don't think so.
When our nation was formed most of the people in it were English. So it was natural for them to believe that they should have at least the same rights they had when the colonies were English colonies. Not only that, but after we became a nation our courts still relied on English common law because we had no large body of American common law of our own. In fact, it's very interesting to read biographies of people of the day who became lawyers, or to read about court judgments of the day, and see that it was taken for granted that an argument in court that relied on English law was was considered the best argument that could be made.
I only mentioned the fact that our Second Amendment was based on the English Bill of Rights because there are some uninformed people out there who argue that it could not have been based on "natural" rights because English law did not recognize any natural, or other, right to keep and bear arms. What I wrote could have done quite well without any mention of English law, but I included it because it it puts an end to the argument that we never had such a right before the Constitution was written.
Allan, use it in any way you want. It's all factual, and every word of it can be verified by anyone who cares to take the time to do it.
Thanks, John. I'm glad our forefathers actually sat down and said what the Bill of Rights meant. It was a wise thing to do.
Go for it Allan, copy and post anything you desire that i have posted.
I forgot to say thanks to Don. Lot of good stuff there. Thanks, Don.
I should also point out that you should not give me credit for most of the research. Far from it; I owe most of the credit to people who pointed me in the right direction in their books, especially Joyce Lee Malcolm, who is a history professor. I usually just go out and verify things that I see mentioned. It's job and a half, but it's worth it.
If anyone wants to go deeper into all this there are some very good original resources actually available. For example, the book written by Rawl is available right online. Just click on this link:
You can't go to pages 126/26 though. The copy is not paged. Just click on Chapter X though, and browse a bit. You'll find the exact statement I quoted.
There's a great article written back around 1994 or so by Dave Kopel. He is reviewing Joyce Malcolm's book on the history of the Second Amendment and he does a great job of it. Macolm's book "To Keep and Bear Arms: The Origins of an Anglo-American Right," is available on Amazon.
Here's a link: http://www.davekopel.com/2A/LawRev/It_Isn%27t_About_Duck_Hunting.htm#fn72
You may have to type it in. If that's too much work, just copy and paste this:
Parliamentary Debates, House of Lords, new series, 39-1025
It's a sneaky way of getting to Kopel's article. You'll see it listed as one of results.
The book mentioned in Note 3: James Paterson's "Commentaries on the Liberty of the Subject and the Law of England Relating to the Security of the Person" can be found on Amazon. Google has an online e-book of the first volume, but something is wrong with the paging because I could not find the correct section much less the right page with the comment on it, but I trusted Malcolm, assuming that the Google edition has different size pages (and therefore different numbered ones). I go through a lot of that trying to find things.
You'll have a hard time seeing the actual newspaper articles. I had to take the word of Joyce Malcolm and others who've actually seen them on microfiche. There's a geneology outfit that claims to have them, but a search by anything other than name is a waste of time.
Welcome to the world of research. :-)
You could do a lot worse than to buy a copy of Joyce Malcom's book. She's a straight shooter. No political bias at all.
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