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The Right to Bear Arms? What History Tells Us.

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  • #31
    Originally posted by Kaiser Franz View Post
    Right <sigh> -- and the First US Congress wasn't comprised of patriots that supported the Revolution ?? Good Grief !!!
    The First U. S. Congress wrote the Second Amendment and not one member of that legislative body is known to have ever said that "force of arms was the only effective check on government."

    Comment


    • #32
      Conversely then -- is any member of the First US Congress known not to have said that "force of arms was the only effective check on government." ?
      I like Dogs far better than most People

      As our Supply Sargent once said "If'n you only got one - order one - If'n you got Two - turn one in !! (???)

      BoRG

      Comment


      • #33
        Originally posted by cst784 View Post
        Notice that this specifically names the recipient as "the people" not the states not the government.
        First, notice that the end being sought by the Second Amendment is "the security of a free state."

        Second, notice that "the right of the people to keep and bear arms" is merely an auxiliary means to the end of the security of a free state. It's not even the primary means. It's just the means to another means to the end of a secure free state.

        Third, notice that none of the other rights in the Amendments are treated as merely a means to more important end. Instead, they are treated as ends in themselves.

        Fourth, notice that parts of the Second Amendment don't coincide, because the usual meaning of "people" doesn't coincide with the usual meaning of "militia." In 1789, the usual meaning of "people" was "a nation; those who comprise a community" and the usual meaning of "militia" was "train-band; the standing force of a nation."

        Fifth, notice that the rule of construction in 1789 in cases where the parts of a legal expression didn't coincide was that, "the means should be sacrificed to the end." See Federalist No. 40.

        Sacrificing the means to the end, we wind up with a Second Amendment that means,
        a well regulated militia being necessary for the security of a free state, the right of the militia to keep and bear arms shall not be infringed.

        Now compare that to Saint George Tucker's interpretation which was that,
        A well regulated (organized and trained) militia (standing military force of the state) being necessary for the security of a free state, each state (of the United States) respectively should have the power (the right) to provide for organizing, arming, and disciplining it's own militia, (to keep and bear arms) [whenever Congress should neglect to provide for the same].
        Why would Congress have believed it was necessary to give the state militias a right to keep and bear arms or to give the states power to provide for organizing, arming, and disciplining it's own militia?

        Perhaps Congress was moved to propose the Second Amendment by George Mason's objection to the Constitution on grounds that,
        The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless--by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them, &c. Here is a line of division drawn between them--the state and general governments. The power over the militia is divided between them. The national government has an exclusive right to provide for arming, organizing, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States. The state governments have the power of appointing the officers, and of training the militia, according to the discipline prescribed by Congress, if they should think proper to prescribe any. Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army.

        Comment


        • #34
          Your argument is well stated. However one must take into account the entire body of the good Saint George Tuckers' works.

          From Tucker's View of the Constitution (1803) and The BlackStone Commentaries:
          "This may be considered as the true palladium of liberty. … The right of self defense is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color 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. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorize the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty."

          "Here, let us again pause, and reflect, how admirably this division, and distribution of legislative power is adapted to preserve the liberty, and to promote the happiness of the people of the United States... Fifthly, and lastly; by the separation of the judiciary from the legislative department; and the independence of the former, of the control, or influence of the latter, in any case where any individual may be aggrieved or oppressed, under colour of an unconstitutional act of the legislature, or executive. In England, on the contrary, the greatest political object may be attained, by laws, apparently of little importance, or amounting only to a slight domestic regulation: the game-laws, as was before observed, have been converted into the means of disarming the body of the people:..."
          "The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit any prohibition of arms to the people;..."

          "If, for example, a law be passed by congress, prohibiting the free exercise of religion, according to the dictates, or persuasions of a man's own conscience or abridging the freedom of speech, or of the press; or the right of the people to assemble peaceably, or to keep and bear arms; it would, in any of these cases, be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused from any penalty which might be annexed to the breach of such unconstitutional act."
          Clearly Tucker viewed the right as an individual one. If one uses the argument that the state is free to define it's own militia, then in many cases there are multiple classifications of militia. But:

          USC Title10
          Sec. 311. Militia: composition and classes
          -STATUTE-
          (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.
          Furthermore, many states do not differentiate but rather expand the window in age in age when referring to the "unorganized" militia.

          Our own great state of Texas uses this:

          The Texas Government Code
          431.001. DEFINITIONS. In this chapter:
          (1) "Reserve militia" means the persons liable to
          serve, but not serving, in the state military forces.
          (2) "State militia" means the state military forces
          and the reserve militia.
          (3) "State military forces" means the Texas National
          Guard, the Texas State Guard, and any other active militia or
          military force organized under state law.
          (4) "Texas National Guard" means the Texas Army
          National Guard and the Texas Air National Guard.
          Furthermore the code goes on to define that persons between ages 18 and 60 are subject to military duty, which would include them in the reserve militia.
          Welcome to the adult world. Kinda sucks when you have to be the responsible ones and take all the pot shots from the chagrined lefties and mongoloid celebrities, who don't know their collective posteriors from sound economic policy. - 98ZJUSMC

          Comment


          • #35
            Originally posted by Arkane View Post
            Your argument is well stated. However one must take into account the entire body of the good Saint George Tuckers' works.
            Show me something he said that contradicts his statement that the Second Amendment meant, "that each state respectively should have the power to provide for organizing, arming, and disciplining it's own militia, whenever congress should neglect to provide for the same?"

            Comment


            • #36
              Does it really matter what Tucker thought the second amendment meant ??

              It clearly says "the people" -- WE are the "people" -- WE have the right to keep and bear arms -- what's the problem ?
              I like Dogs far better than most People

              As our Supply Sargent once said "If'n you only got one - order one - If'n you got Two - turn one in !! (???)

              BoRG

              Comment


              • #37
                Originally posted by Kaiser Franz View Post
                Does it really matter what Tucker thought the second amendment meant ?
                It matters to those misguided souls who belive "historical analysis" should be used to ascertain the meaning of the Constitution.

                It clearly says "the people" -- WE are the "people" -- WE have the right to keep and bear arms -- what's the problem ?
                The two parts of the Amendment don't coincide. That's the problem.

                Comment


                • #38
                  Originally posted by Miss You View Post
                  It matters to those misguided souls who belive "historical analysis" should be used to ascertain the meaning of the Constitution.

                  The two parts of the Amendment don't coincide. That's the problem.

                  I think we should leave the 2nd amendment alone -- forget analyzing -- just take it as it is -- people could argue for years -- in fact they have done so -- all to no avail.

                  I'm not worried about conflicting information -- I'm going to take the part I like -- and run with it and to heck with the rest
                  I like Dogs far better than most People

                  As our Supply Sargent once said "If'n you only got one - order one - If'n you got Two - turn one in !! (???)

                  BoRG

                  Comment


                  • #39
                    Originally posted by Miss You View Post
                    It matters to those misguided souls who belive "historical analysis" should be used to ascertain the meaning of the Constitution.

                    The two parts of the Amendment don't coincide. That's the problem.
                    I don't know if this will help you to understand, but here is the actual decision on the Supreme Court case in question. 157 pages. Have fun.

                    http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf

                    From the opening Syllabus of the decision:

                    "Held:
                    1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2-53.
                    (a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2-22."

                    Analysis:

                    Source: http://en.wikipedia.org/wiki/Distric...mbia_v._Heller

                    Maybe these links will help.
                    History is the version of past events that people have decided to agree upon. Napoleon Bonaparte
                    _________
                    BoRG
                    __________
                    "I am Arthur, King of the Britons!"

                    Comment


                    • #40
                      Good Job Torien !!!

                      I like Dogs far better than most People

                      As our Supply Sargent once said "If'n you only got one - order one - If'n you got Two - turn one in !! (???)

                      BoRG

                      Comment


                      • #41
                        Originally posted by Kaiser Franz View Post
                        Does it really matter what Tucker thought the second amendment meant ??

                        It clearly says "the people" -- WE are the "people" -- WE have the right to keep and bear arms -- what's the problem ?
                        The right to bear arms and the second amendment has been fought over both physically and verbally in America for many many years I do not think that we on this forum are going to solve it for them!!
                        'By Horse by Tram'.


                        I was in when they needed 'em,not feeded 'em.
                        " Youuu 'Orrible Lot!"

                        Comment


                        • #42
                          Originally posted by lcm1 View Post
                          The right to bear arms and the second amendment has been fought over both physically and verbally in America for many many years I do not think that we on this forum are going to solve it for them!!
                          Agreed my friend -- but then again, we have yet to solve anything on any subject -- We simply pontificate and vent -- and then we all feel better

                          By the way - lest we forget -- -- Thank you again for your valor and service in WW2 -- we would, none of us, be free without people like you !!

                          I like Dogs far better than most People

                          As our Supply Sargent once said "If'n you only got one - order one - If'n you got Two - turn one in !! (???)

                          BoRG

                          Comment


                          • #43
                            lcm
                            The right to bear arms and the second amendment has been fought over both physically and verbally in America for many many years I do not think that we on this forum are going to solve it for them!!
                            My favorite hobby, next to playing my guitars, for the last few years has been trying figuring out what the first ten amendments mean.

                            Initially, I bought into the conventional wisdom that by analyzing the history of the Amendments, their meaning could be ascertained. To that end I resolved to read anything and everything written by the founders on the subjects covered by the Amendments.

                            In the course of figuring out the establishment clause, someone cited Joseph Story's "Commentaries on the Constitution." My policy is to read the entire document a quotation is taken from. As I was scanning the Table of Contents to Story's Commentaries, I noticed a chapter on Rules of Constitutional Interpretation.

                            I'm a lawyer and was familiar with the concept of rules of legal interpretation. To make a long one short, I discovered that when the Constitution was made, there was only one method of legal interpretation, and it wasn't "historical analysis." It was a well established set of common sense rules of legal interpretation that had be established by judicial opinions, some dating back to the early 1500's.

                            I learned what the rules of interpretation were in 1789. Then, as I read the writings of the founders, I noticed numerous references to them.

                            To make a long one short, I discovered an abundance of evidence that the lawmakers who gave us the Constitution, took for granted that the rules of legal interpretation should be applied to the Constitution to ascertain its meaning.

                            I like to discuss the Second Amendment, because I seek to know what the will of the lawmakers was at the time they made it. I don't really care if anyone shares my view.

                            Comment


                            • #44
                              Originally posted by Miss You View Post

                              I like to discuss the Second Amendment, because I seek to know what the will of the lawmakers was at the time they made it. I don't really care if anyone shares my view.

                              You are brave -- admitting that you're a lawyer *shun* takes some 'intestinal fortitude"

                              You went to school long enough -- probably about as long as I did -- couldn't you have picked a respectable professions ??

                              Sure you care what others think -- everyone wants agreement to their point of view

                              What is your point of view incidentally ? -- Are you for or against our right to keep and bear arms ?? -- I haven't read every post so I really don't know.

                              Don't be offended by my teasing you about being a lawyer -- I have a couple of very good ones -- they're friends as well -- I actually let them sit at the dinner table with the civilized folks on occasion -- so far they've been fairly well behaved
                              I like Dogs far better than most People

                              As our Supply Sargent once said "If'n you only got one - order one - If'n you got Two - turn one in !! (???)

                              BoRG

                              Comment


                              • #45
                                Originally posted by Kaiser Franz View Post
                                Agreed my friend -- but then again, we have yet to solve anything on any subject -- We simply pontificate and vent -- and then we all feel better

                                By the way - lest we forget -- -- Thank you again for your valor and service in WW2 -- we would, none of us, be free without people like you !!

                                I appreciate your remarks,thank you. I discovered this week that i am one of only twenty Normandy vets: left in west Australia (allof us migrated 'Poms' of course.) I understand that even in England the Normandy Vets: are 'Falling off the Perch' at an alarming rate and the associations are close to terminating!!
                                'By Horse by Tram'.


                                I was in when they needed 'em,not feeded 'em.
                                " Youuu 'Orrible Lot!"

                                Comment

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