The Right to Bear Arms? What History Tells Us.

[legaleagle_45]

The U. S. Supreme Court should have interpreted the Second Amendment the way Saint George Tucker did in 1803[/B]

Thankfully they did and here is how St. George Tucker actually interpreted the 2nd Amend in 1803:

"This may be considered as the true palladium of liberty .... The right of self defence 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 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. 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."

http://www.constitution.org/tb/t1d12000.htm

The quote you employ from St. George Tucker is where he is interpreting Article I, Sec 8, Paragraphs 15-16... the militia power. He merely states that "uneasiness upon the subject" was removed by passage of the 2nd Amend, he does not assert that is what the 2nd Amend means.

http://www.constitution.org/tb/t1d10000.htm

The conclusion is inescapable. St. George Tucker believed that the 2nd Amend protected an individual right of self defense and that, in addition, by protecting the individual right of arms, an unassailable armory of arms is safeguarded for potential use by the militia in the event the feds ever failed to properly arm the militia, either by maicious design, or by benign neglect.

[legaleagle_45]

I hereby issue a challenge for anyone to produce evidence that anyone objected to the proposed U. S. Constitution because it didn't guarantee an individual right to keep and bear arms.

If your challenge is to produce evidence that anyone objected to the proposed U. S. Constitution because, among other things, it didn't guarantee an individual right to keep and bear arms, that is easy. The Pennsylvania Minority consisted of persons who refused to ratify the Constitution because it did not contain a Bill of Rights. Among the suggested amendments that they proposed was this:

That the people have a right to bear arms for the defence of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil power.

If on the other hand, your challenge is to produce evidence that anyone objected to the proposed U. S. Constitution solely because it didn't guarantee an individual right to keep and bear arms, that is impossible. You will not find anyone who opposed the U. S. Constitution solely because it didn't have a guarantee of free speech... You will not find anyone who opposed the U. S. Constitution solely because it didn't have a guarantee of freedom of religion... You will not find anyone who opposed the U. S. Constitution solely because it didn't have a guarantee of free press, etc, etc, etc.

[General Staff]

These last two posts were all Norman English to me... When a conclusion is inescapable I've a nasty feeling I'm trapped...

[legaleagle_45]

These last two posts were all Norman English to me... When a conclusion is inescapable I've a nasty feeling I'm trapped...

Legaleagles are required by disciplinary rules to employ only Norman English. I think the rule went into effect shortly after the Battle of Hastings in 1066.

[General Staff]

Legaleagles are required by disciplinary rules to employ only Norman English. I think the rule went into effect shortly after the Battle of Hastings in 1066.

Perhaps that's why Americans, after their 710 year ordeal and eventual escape, insist to this day on being able to carry personal weapons.

[Kaiser Franz]

Legaleagles are required by disciplinary rules to employ only Norman English. I think the rule went into effect shortly after the Battle of Hastings in 1066.

Wasn't that the one where Harold and Bill got into a shouting match -- something to do with that odd little Island where it rains a lot -- and who had marketing rights -- or maybe it was ownership squabble -- if I'm not mistaken

For want of a nail a shoe was lost, for want of a shoe a horse was lost, and so on LOL

[legaleagle_45]

Wasn't that the one where Harold and Bill got into a shouting match -- something to do with that odd little Island where it rains a lot -- and who had marketing rights -- or maybe it was ownership squabble -- if I'm not mistaken

I think little Billy was merely tired of being called a bastard all the time and was aspiring to a more dignified title, such as "Conqueror"... which I guess does have somthing to do with marketing.

[Kaiser Franz]

I think little Billy was merely tired of being called a bastard all the time and was aspiring to a more dignified title, such as "Conqueror"... which I guess does have somthing to do with marketing.

OK -- thanks -- just wanted to make sure -- Poor Harold -- six months a King and then a Corps -- sad indeed

[General Staff]

I'll just huddle behind a shield wall and hope for the best here.

[Kaiser Franz]

I'll just huddle behind a shield wall and hope for the best here.

Too late -- you've been overrun about 1,000 years ago -- but wait -- you're probably a descendant of those cut throat Normans anyway -- you should look ashamed for the perfidy of your predecessors

[General Staff]

Too late -- you've been overrun about 1,000 years ago -- but wait -- you're probably a descendant of those cut throat Normans anyway -- you should look ashamed for the perfidy of your predecessors

There are still diehard groups of resistance.

Hereward the Wake once led one though he got bought out eventually.

Today we lead an underground existence, but we work through sophisticated proxies.

[Miss You]

What was Saint George Tucker's interpretation of the Second Amendment?

With respect to the Second Amendment, Tucker wrote the following:

Congress has, moreover, power to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states, respectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by congress C. U. S. Art. 1, Sec. 8.

The objects of this clause of the constitution, although founded upon the principle of our state bill of rights, Art. 8, declaring, "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," were thought to be dangerous to the state governments. The convention of Virginia, therefore, proposed the following amendment to the constitution; "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." A further amendment proposed, was, "that the militia should not be subject to martial law, except when in actual service, in time of war, rebellion, or invasion" .... A provision manifestly implied in the words of the constitution. As to the former of these amendments, all room for doubt, or uneasiness upon the subject, seems to be completely removed, by the fourth article of amendments to the constitution, since ratified, viz. "That a militia being necessary to the security of a free state, the right of the people to keep, and hear arms, shall not be infringed." To which we may add, that the power of arming the militia, not being prohibited to the states, respectively, by the constitution, is, consequently, reserved to them, concurrently with the federal government. In pursuance of these powers, an act passed, 2 Cong. 1 Sess. c. 33, to provide for the national defence, by establishing an uniform militia throughout the United States; and the system of organization thereby established, has been carried into effect in Virginia, and probably in all the other states of the union.

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. Amendments to C. U. S. Art. 4.

This may be considered as the true palladium of liberty .... The right of self defence 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 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. 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 authorise 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.

Let's look at Tucker's statement that,

The objects of this clause of the constitution, although founded upon the principle of our state bill of rights, Art. 8, declaring, "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," were thought to be dangerous to the state governments.

Who was Tucker talking about? Who thought Art. 1, Sec. 8, Clause 16 of the Constitution was dangerous to the state governments? Why did they think the clause was dangerous?

[Torien]

Miss You,

Just to let you know: this is not a court of law, but we do request that you reference your posts when you quote something. And please provide a link to your source!

I have found a site that has the complete Blackstone's Commentaries: with Notes of Reference (1803). I will assume this is the piece that you took the passage from.

http://www.lonang.com/exlibris/tucker/index.html

I will be responding more completely to your post once I have read a good portion of the documents. (Judge Tucker sure did like to write! But, I live to read!)

But, a cursory glance of your post shows some glaring problems.

1) You title your post: "What was Saint George Tucker's interpretation of the Second Amendment?", and then proceed to quote an obvious piece on the Constitution itself. Specifically the afore-mentioned Article 1, sec. 8. I have a little problem with that.

2) The critique provided deals mostly with the need for the clause and the comparison with the Constitution of the State of Virginia. A little mention of history of bans on gun ownership in England, which Tucker clearly does not agree with. Even according to your own emphasis. ("This may be considered as the true palladium of liberty .... The right of self defence is the first law of nature")

I will add more in coming posts. Although, I doubt I will change your mind as you seem willing to disregard the Supreme Court ruling I posted.

If the Supremes can't change your mind, what chance do I, a humble little amateur historian, have of changing it?

[legaleagle_45]

What was Saint George Tucker's interpretation of the Second Amendment? With respect to the Second Amendment, Tucker wrote the following:

Actually, your first quote is dealing directly with Article I, Sec. 8, clause 16. The entire treatise of Saint George Tucker's BLACKSTONE'S COMMENTARIES can be accessed here:

http://www.constitution.org/tb/tb-0000.htm

What is extremely important to note is that Tucker is speaking of Article I, Sec 8, Pargraph 16, and not the 2nd Amend when he states "

The objects of this clause of the constitution, although founded upon the principle of our state bill of rights, Art. 8, declaring, "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," were thought to be dangerous to the state governments.

This is taken from Volume 1 — Appendix, Note D, Section 10 — Powers of Congress and can be accessed here:

http://www.constitution.org/tb/t1d10000.htm

It is about 1/2 way down the page and is denominated as the 12th paragraph on said page.

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. Amendments to C. U. S. Art. 4.

This may be considered as the true palladium of liberty .... The right of self defence 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 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. 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 authorise 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.[/INDENT][/I]

This quote is taken from a completely different portion of Tucker's treatise, entitled Volume 1 — Appendix Note D, Section 12 — Restraints on Powers of Congress, and can be accesed here:

http://www.constitution.org/tb/t1d12000.htm

It is found about 2/3rds of the way down and is denominated as paragraph 8. Here Tucker is talking exclusively about the 2nd Amendment and what it means. Clearly, Tucker believes that the 2nd Amend protects an individual right. The first law of nature is derived directly from Thomas Hobbes treatise "Leviathan", which is the foundation of modern political philosophy. Tucker refers to the British Game Act of 1672 which was used by James II to disarm his potential opponents. It was proposed as a solution to illegal hunting and made it illegal for most people to own guns. James II used this law as a ruse to confiscate the privately owned arms of those who might threaten his reign. James II was catholic, he felt threatened by the protestant majority and sought to disarm them. It is also important to note that Tucker referred to the 2nd Amendment in connection whith Blackstone's Fifth Auxillary Right, which Blackstone enunciated as follows:

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence 40 suitable to their condition and degree, and such as are allowed by law.41 Which is also declared by the same statute 1 W. & M. st. 2. c. 2, and it is indeed, a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

Tucker provides 2 footnotes to Blackstones text as follows:

40. the right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government.

41. Whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England. The commentator himself informs us, Vol. II, p. 412, "that the prevention of popular insurrections and resistence to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws."

This can be accesed here:

http://www.constitution.org/tb/tb2.htm

It is about 1/8th of the way down the page.

The convention of Virginia, therefore, proposed the following amendment to the constitution; "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."

Indeed Virginia did propose such an amendment. Virginia actually proposed several amendments. They were seperated into two distinct parts. The first series of proposed amendments was deliniated as a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following. Included within this group were free speech, the right to petition, etc. Included in this section of essential and unalienable rights of the people was this: "17th. 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 second series of amendments were deliniated solely as general amendments to the constitution, covering such subjects the number of representatives, the keeping of journals for congress, the keeping of books and accounts, certain provisions regarding traties and the like. Included within this section of general amendments is this: "11th. That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same." What is absolutely clear is that Virginia would not offer two seperate amendments which mean exactly the same thing.

The suggested amendments proposed by Virginia can be accessed here:

http://www.constitution.org/rc/rat_va_23.htm

Who was Tucker talking about? Who thought Art. 1, Sec. 8, Clause 16 of the Constitution was dangerous to the state governments? Why did they think the clause was dangerous?

The anti-federalists led by the ever articulate Patrick Henry, George Mason and others. They feared that the power to arm the militia also included the converse... the power to disarm the militia. It is in the context of this debate that Henry uttered his famous words: "The great object is, that every man be armed". These objections were countered by the federalists, led ably by Madison and future US Chief Justice of the US Supreme Court John Marshall, who asserted that yhe states already had the concurrent power to arm and train the militia.... which is what Tucker asserts when he says: To which we may add, that the power of arming the militia, not being prohibited to the states, respectively, by the constitution, is, consequently, reserved to them, concurrently with the federal government.

What is real interesting however, is that the declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people had already been fully drafted and dispatched to various other state ratifying conventions prior to this debate even taking place. Those debates occured on June 14 and June 16, 1788. However, on June 9th, the New York ratifying delegation acknowledged receiving a copy of the proposed Bill of Rights which Virginia later adopted...

[Miss You]

Miss You,

Just to let you know: this is not a court of law, but we do request that you reference your posts when you quote something. And please provide a link to your source!

I have found a site that has the complete Blackstone's Commentaries: with Notes of Reference (1803). I will assume this is the piece that you took the passage from.

http://www.lonang.com/exlibris/tucker/index.html

Your link goes to what is known as Tucker's Blackstone published in 1803. Tucker wrote an entire Commentary on the U. S. Constitution as an Appendix to William Blackstone's Commentaries on the Laws of England, published in the late 1760's.

At the commencement of the American Revolution, Virginia had "generally" adopted the common law of England as it existed prior to 1607. In 1803, a copy of Blackstone's Commentaries was the only the access many American lawyers and judges had to the common law.

Much of the common law was not applicable to a Republican form of government. Tucker "Republican-ized Blackstone" by modifying the aspects of the common law, such as the powers of the King, that didn't apply to a democracy.

Some say Tucker's work "was not only a publication of the Blackstone text but also an engagement of it in combat." Some say his goal was to limit the Anti-Republican influence of Blackstone.

Tucker's influence was enormous. They're still writing about it today.