Re: DC v Heller: Amicus Brief of the Real Linguists, Part I
- From: Steve Krulick <krulick@xxxxxxxxxxx>
- Date: Sun, 27 Apr 2008 05:02:26 GMT
ozarkheart@xxxxxxxxx wrote:
On Sat, 26 Apr 2008 16:22:22 GMT, Steve Krulick <krulick@xxxxxxxxxxx>
wrote:
ozarkheart@xxxxxxxxx wrote:On Sat, 26 Apr 2008 06:12:01 GMT, Steve Krulick <krulick@xxxxxxxxxxx>Sure, but you won't accept or understand it, because this is beyond your limited comprehension:.
wrote:
snipTHAT IS WHY BOTH terms are used! Sorry, but THE PEOPLE in the Const ALWAYS refers to the enfranchised body politic in its collective and political capacityPlease explain to me the 4th Amendment "people": The right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated
LOL So you start with an insult.
But it's true, as your own response proves! I said you wouldn't comprehend it, and you haven't. I bet you didn't REALLY read it anyway! I bet you just skimmed it and made random comments AS IF you'd read it! But if you DID read it, you DIDN'T understand it, because your comments clearly show that!
And, reading on, you still haven't told me just how the 4th Amendment
does not protect an individual right.
Who said it didn't? See, you just don't understand WHAT it says!
Briefly, I'll try. The right ONLY applies to the PEOPLE CLASS, but is DISTRIBUTIVE to those members, because the context shows it does. So, INDIVIDUAL members of THE PEOPLE CLASS can exercise and claim the right, but NOT ALL INDIVIDUALS WHATSOEVER CAN! Otherwise, a foreigner like Verdugo could, but Rehnquist rightly pointed out that as he was NOT a member of THE PEOPLE CLASS, he could NOT claim the right, even though he IS an individual, but NOT AN INDIVIDUAL MEMBER OF THE PEOPLE.
See, an INDIVIDUAL RIGHT is one that accrues to EVERY SINGLE INDIVIDUAL. Freedom of Speech or Religion is an individual right, because there's NO restriction on the right! Hence, it is for EVERYONE. But, as Rehnquist points out, the rights of the 4th Amen extend ONLY to THE PEOPLE!
Do you understand what that means? EXTENDS ONLY TO THE PEOPLE. Unlike the 5th and 6th Amens which extend to EVERYONE. Hence, logically, THE PEOPLE IS LESS THAN EVERYONE! With me so far?
So, INDIVIDUALS WHO ARE FREEMEN (the term of art from 1789 that refers to MEMBERS of THE PEOPLE CLASS) have 4th Amen rights, but INDIVIDUALS who are NOT FREEMEN (then being blacks, women, kids, Indians, aliens, felons, etc.) DO NOT HAVE 4th Amen rights, so, by definition it is NOT an individual right, per se, but a DISTRIBUTIVE RIGHT that CERTAIN INDIVIDUALS can claim.
But once a right is not available to ALL individuals, it can't be, by definition, AN INDIVIDUAL RIGHT!
So, even if the 2nd Amen were NOT couched in COLLECTIVE terms of THE PEOPLE as the WHOLE PEOPLE acting as the populus armatus, the same rules apply and it CAN'T be an individual right, because, same as here, in 1789, THE PEOPLE did NOT include women, blacks, kids, Indians, aliens, felons, etc. How would an 80-year-old black woman from Haiti having an "individual right" to "own and carry guns" (not what the 2nd Amen says, but let's play along!) further the security of a free state to have a well-regulated militia, when such a person would be FOUR WAYS prohibited from SERVING in the militia or VOTING for the legislature that organizes and controls it? It defies logic that a militia would be maintained as the states wished because someone who would never serve in the militia could own a gun! (That there were specific laws on the books that said that "negroes" could not "carry guns" in most states -- not laws saying they couldn't "bear arms," as THAT meant serve in the militia, but "carry guns" which means JUST THAT! -- shows that it was NOT considered an individual right, as free blacks WERE 5/5 of an individual even if slaves were only 3/5!)
Now, do you UNDERSTAND what I just said?
WHENEVER the term-of-art "THE PEOPLE" appears in the Constitution or BoR, or even other official documents of the era, it means one thing only, in every case: THE PEOPLE is a singular entity, the collective enfranchised body politic, specifically, the CLASS of Freeman taken collectively in its political capacity.
The only PERSONS with "political capacity" were FREEMEN, that is, free, white, males of legal age. Often this was called FREEHOLDER and then also meant property-owning, free, white, males of legal age. The term ELECTOR was often used in local or state documents, and this may have restricted political capacity even further, by, say, requiring residence in a location for a certain period of time.
In 1789, women, black slaves, kids, non-citizens (such as foreigners, Indians, prisoners, rebels/Tories, etc.) had NO political capacity. They could not vote, and were not required to serve on juries or in the militia. In that sense, they were NOT a constituent part of THE PEOPLE! Thus, they had, or may have had, the rights of all INDIVIDUALS, such as freedom of religion or habeus corpus, but NOT the rights of FREEMEN or of the collective FREEMAN class. OR, and this is where the BoR comes in, any rights they MAY have claimed were not PROTECTED or GUARANTEED by the Constitution!
THE PEOPLE is NOT each and every PERSON "considered as individuals"! It is the collective enfranchised body politic as its own corporate identity.
Yes, individuals comprise the CLASS of FREEMEN who make up THE PEOPLE. But *A* single individual doesn’t necessarily have the rights and powers that only the collective class or subset thereof may enjoy. Yes, individuals make up a jury, but no ONE individual person can declare HIMSELF a legal jury of one, or put himself ON a jury, or find someone guilty independent of the other jurors, can he? Only the jury as a whole can do what the jury is empowered to do. There ARE NO one-man militias, and only THE PEOPLE collectively can organize, arm, and maintain a militia. Congress can declare war, but NOT one Congressman on his own. The individual that the collective is composed of may share in the power and rights of the whole, but doesn’t have ALL the same characteristics or prerogatives of the whole. Or, even as to collective entities, the United States may declare war, but an individual state can’t.
A building may be made of bricks, but a brick is NOT the building! The part is NOT the same as the whole, nor does it have the same properties or abilities. One can meet IN a building, but that doesn’t mean one can meet in a brick, or even a pile of bricks equal in number to the number of bricks making up a building! If one removes one brick from the building, the building still remains; if one removes and replaces 50 bricks, the building remains, independent of the particular bricks changed.
A corporation may be made up of individuals, but it has an existence that is not dependent on the life or death, or coming and going, of any particular individual.
So, what THE PEOPLE may do as an enfranchised body politic is NOT necessarily something any individual may do on his own. However, an individual may share in the process, and may, as a member of a designated class or subclass, enjoy the rights OF that class. IF you are a homeowner, the 3rd Amen rights may be invoked IF you feel your rights as such have been violated. Not because YOU yourself are listed in the Constitution, but because YOU fit the class protected by the collective term "homeowner."
CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS (1780)
PREAMBLE.
"The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquillity their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.
The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them."
This confirms that it was the ENFRANCHISED BODY POLITIC (see Mass. Constitution) that established the Constitution, not each and every individual AS an individual.
When it says THE PEOPLE, it MEANS THE PEOPLE, the enfranchised body politic, taken collectively, just as law professor Steven Heyman says John Adams meant it in the Mass. Constitution:
(http://www.saf.org/LawReviews/HeymanChicago.htm)
How was the right to arms understood in post-Revolutionary America? We can attain great insight on this point by exploring the Massachusetts Constitution of 1780.[145] This document, which was drafted by John Adams, contains the most carefully written of all the state declarations of rights and constitutes one of the best statements "of the fundamental rights of Americans at the end of the Revolutionary period." [146] [Page 261]
In its preamble, the Massachusetts Constitution sets forth the relationship between society and its members. The "people" or "the body-politic" are "formed by a voluntary association of individuals," who come together through "a social compact." What is most remarkable is that, having distinguished between the "people" and "the individuals who compose it," the document then uses these terms in a consistent way throughout. This makes it possible to discern with great clarity how the various rights were understood, and whether they were viewed in individual or collective terms...
In this way, the Massachusetts declaration draws a clear and uniform distinction between the rights that belong to individuals and those that belong to the people as a whole. This distinction is followed so carefully that it is observed even when both sorts of rights are implicated. Thus, Article XXIX declares that the independence of the judiciary is essential "for the security of the rights of the people, and of every citizen."
Article XVII of the Massachusetts declaration reads as follows:
The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military shall always be held in an exact subordination to the civil authority and shall be governed by it.
In view of the declaration’s careful usage, there can be no question that the "right to keep and bear arms" that it recognizes is one that belongs not to private individuals but to the people in their collective capacity. This is made even more clear by the fact that the right is to bear arms "for the common defence," as well as by the overall concern of the provision: to control the military force of the community and guard against the danger of military tyranny. [148]
I have chosen to focus on the Massachusetts Constitution because of the precision of its language, which strongly illuminates the nature of the rights that it contains. Yet the same distinction [Page 263] between "individuals" (or cognate terms) and "the people" is also generally, although not invariably, observed in the other post-Revolutionary state declarations of rights. When these documents recognize a right to bear arms, they always describe it as a right of "the people," rather than of every "individual" or "man." [149] This is strong evidence that the right was understood in collective terms.
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Some rights are of individuals, and some are of the THE WHOLE PEOPLE, just as Albert Gallatin said:
"The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." -- Albert Gallatin of the New York Historical Society, October 7, 1789
"The whole of the Bill [of Rights] is a declaration of the right of the people at large OR considered as individuals...
And the 2nd Amen is a perfect example of a right of the people at large!
"The people," as the "people at large," the "whole body of the people," the collective "body politic," have the populus armatus jus militiae right to be involved in the state’s (or nation’s) military function, by establishing, arming, controlling, maintaining the upkeep and readiness of the militia ("keep arms" as Adams meant it), and serving ("bear arms" as Madison meant it, if qualified) as citizen-soldiers (as opposed to "regular" professional soldiers in a standing army), drawn from the "body of the people," and "trained to arms" and "enrolled" into an organized, "well regulated" state militia.
"It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." But the "right" to "own and carry guns" was never one of them. (See Pennsylvania Test Acts)
THE PEOPLE is NOT each and every PERSON "considered as individuals"! It is the collective enfranchised body politic as its own corporate identity.
Some rights are individual and apply to ALL individuals or to particular classes of individuals when applicable. Other rights are OF the collective entity itself, INDIVISIBLE, and not based on numbers:
Rights are collective AND individual; collective in their formulation, individual OR collective in their exercise and application. But unless your name is engraved in the Constitution, you have the rights that accrue to you as a member of the class that IS engraved therein. Does the 6th Amen say "Joe Doe shall enjoy the right to a speedy and public trial &c"? Of course not! But if you are arrested, as one who qualifies as a member of the class of persons called "accused," you have the rights. Can you appreciate the subtle difference? Your 3rd Amen rights likewise depend on your being a homeowner. Not ALL homeowners, not a collective group of homeowners, but ONE OF A CLASS defined as "persons who own a home."
The 3rd Amen talks about the consent of "the owner" (singular), not "the people" (plural). The 5th Amen says "no person" (singular), not "no people" (plural). The 1st Amen talks of the right of "the people" to assemble (obviously plural; how can a single individual "assemble"?). The 6th Amen refers to "the accused," "him," and "his" (singular). The 8th Amen avoids the problem altogether. Had they wanted to, the authors COULD have written "the right of persons to..." to clearly refer to individuals, or else written "the right to keep and bear arms, shall not be infringed" to be as vague as the 8th. Well, they didn’t write "persons" when they could have, so there’s no reason to see an individual right. As the courts have affirmed.
In 1792, when the Militia Act was passed, WHO had the specific right to "bear arms" ("to render military service in person" as Madison defined it)? Did blacks have the right? Did Women? 15-year-olds? Non-property owners? Cripples? Feeble-minded? Prisoners? "Injuns"? "Furreners"? Indeed, the MAJORITY of people in the country did NOT have the right to "bear arms" in the militia, hence they had no militia "right" to "bear arms." Indeed, laws were passed PREVENTING some specific classes, such as blacks (Negroes), from even possessing guns, "carrying guns" being a separate action from "bearing arms."
BUT the PEOPLE AT LARGE, the enfranchised body politic (who WERE, for the most part, the SAME free, white, property-owning males who could vote, serve on juries AND made up the militia) ALWAYS had the collective right to "keep and bear arms," a term of art first used in the 1780 Mass Constitution by John Adams, that referred to the democratic organization, control, arming, and preservation of the well-regulated state militias by the PEOPLE AT LARGE, the WHOLE PEOPLE as the populus armatus, exercising their jus militiae right to participate in the state’s and nation’s military function, and, if qualified, to serve in person as a citizen-soldier, as conscript duty if required, to forestall the need to rely on a standing army, the "bane of liberty"!
The PEOPLE "keep" (keep permanently ready and maintain in public stores, as Adams and the Articles of Confederation meant it) and "bear" ("bear arms" meant to Madison in the 2nd Amen draft "to render military service") in their collective capacity. For example, a 70-year-old crippled white male could VOTE for state reps who organized and controlled the militia; though unable to "bear arms" in the militia personally, he COULD participate IN the collective function, exercising HIS PART of that collective right! A 30-year-old white women in 1792 could do NEITHER!
The 1st Amen freedom of religion applies to EVERYONE, the 3rd Amen to homeowners (it isn’t relevant to anyone else), the 6th Amen to those accused of a crime... NOT the same classes of persons, with decreasing levels of inclusion. The "People" of the 2nd Amen are ONLY those qualified to vote or (for the most part) serve in the militia, which WAS NOT everyone by a long shot. Did blacks, women, 15-year-olds, non-property owners, have personal 1st Amen rights, such as freedom of speech and religion? Did those same persons have the right to serve in the militia, and thereby "bear arms," or vote democratically to participate in the organization and control of the militia ("keep and bear arms")?
Were THOSE PERSONS not individuals? Weren’t many even citizens? (Note that in many pre-Civil War constitutions and laws CITIZEN and FREEMAN were identical terms, so women, children, etc. were often NOT considered CITIZENS) But they WERE NOT a part of THE PEOPLE!
The Constitution also says "the People" vote for Congress every two years; did everyone vote? NO? That’s why the People is ONLY the enfranchised body politic!
Laws are written in the collective and general class sense, but applied in specific individual and class instances IF you are in the applicable class. IF you are in the class known as "homeowner" you have individual 3rd Amen rights; IF you are in the class known as "accused" you have individual 6th Amen rights.
IF you are a member of the CLASS known as the PEOPLE, i.e., the enfranchised body politic, YOUR 4th Amen right to be secure in YOUR person and property is protected. THAT’S why it says THE PEOPLE.
THE PEOPLE is composed only of Freemen, as they belong to the class known as the People; as Madison’s ORIGINAL phrasing of the 4th Amendment indicated "The rights of the people to be secured in THEIR [emph. added] persons, THEIR homes, THEIR papers, and THEIR other property from all unreasonable searches and seizures..." protects the CLASS, so when a member of that class is abused of these rights, as formulated FOR the CLASS, he, as a member OF the CLASS, can invoke the rights under the Constitution for INDIVIDUAL APPLICATION.
Hell, even Rehnquist, in Verdugo, suggested that foreigners, as NON-members of the CLASS known as The People, did NOT have 4th Amen rights that belonged TO the CLASS known as The People!
"That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to ‘the people.’ Contrary to the suggestion of amici curiae that the Framers used this phrase ‘simply to avoid [an] awkward rhetorical redundancy,’ (Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4,) ‘the people’ seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by ‘the people of the United States." The Second Amendment protects ‘the right of the people to keep and bear Arms,’ and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to ‘the people.’ See also U.S. Constitution., Amdt. 1 (‘Congress shall make no law...abridging...the right of the people peaceably to assemble’); Art. 1, 2, cl. 1 (‘The House of Representatives shall be composed of Members chosen every second Year by the people of the several States’). While this textual exegesis is by no means conclusive, it suggests that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (Excludable alien is not entitled to First Amendment rights, because ‘[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law;)." -- United States v. Verdugo-Urquidez
There’s no express individual right to own and carry guns in this!
Though this is mere dicta by Rehnquist, and NOT part of the ruling, in what was NOT a 2nd Amen case, it only PROVES the point that it is NOT referring to individuals, but to a CLASS of persons that EXCLUDES those who are NOT part of the class of enfranchised citizens! THE PEOPLE IS NOT EVERYONE! THE PEOPLE IS NOT simply every individual person AS person, but a CLASS, a singular, collective entity!
Look: "That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to ‘the people.’!
Hmmm, if something extends its reach ONLY to "THE PEOPLE" than THAT can’t be EVERYONE! THE PEOPLE is LESS than EVERYONE! It is a CLASS of PERSONS SMALLER than the entire population! ONLY FREEMEN comprise the PEOPLE! HENCE, it is NOT something that applies to any or all individuals, as THAT would be EVERYONE!
Nowhere does he EVER even suggest that the rights in all these mentions are individual rights! All that is suggested is that those, like non-citizens, who are NOT in the class of persons known as THE PEOPLE are NOT covered by the provisions that refer to THAT class, so, in THIS case, foreigners are NOT covered by 4th Amen rights! Well, foreigners ARE individuals, right? So if THEY are not covered by a right of THE PEOPLE, ipso facto, a right of the PEOPLE is not necessarily one that ALL INDIVIDUALS have! QED.
"While this textual exegesis is by no means conclusive, it suggests that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."
A "class" is a collective term for a collective (adjective) entity! It is a singular term for a plural number of things!
And in THIS case, it ONLY means the CLASS of persons known as CITIZENS! ALL it suggests is that NON-CITIZENS may not be entitled to BoR protections! The dicta, and certainly NOT the ruling, says NOTHING about the nature of the 2nd Amen or its rights. All he was saying was that NON-citizens are not necessarily part of the "class of persons" (class being a singular term for a plural number) covered by those rights.
Rehnquist did not say that "the People" DENOTED INDIVIDUALS, nor even implied it! He said CLASS of persons with particular characteristics, and that was NOT everyone! In 1789 it wasn’t women, blacks, kids, felons, aliens, indians, and more!
Rehnquist was tangentially suggesting in dicta that THE PEOPLE is a CLASS OF PERSONS and that foreigners, for example, are NOT part of THE PEOPLE. In 1792 neither were women, kids, blacks, injuns, felons, etc. Yet they were ALL individuals! Hence, THE PEOPLE was NOT simply each and all individuals, then or now, but ONLY the members of THE PEOPLE Class, whose rights MAY or MAY NOT be DISTRIBUTIVE, depending on the context and nature of the right.
The term-of-art is "class of persons," a plural reference to the people at large, the collective body of persons who ARE citizens. Which is why a non-citizen alien didn’t even have 4th Amen rights normally distributive to an individual member of the PEOPLE CLASS! How much less would a non-member of the PEOPLE CLASS have any right to invoke a NON-distributive 2nd Amen right of the collective PEOPLE CLASS, the enfranchised body politic in its collective and political capacity?
See, freedom of speech or religion or 5th Amen rights ARE individual rights because they are NOT QUALIFIED by the more narrow CLASS, THE PEOPLE, and ALL persons may invoke them! AS Rehnquist said in Verdugo, these rights of THE PEOPLE, as opposed to the broader rights of the 5th and 6th Amens "extends its reach only to ‘the people.’"
Thus, if it extends its reach ONLY to the people, than THE PEOPLE is more limited than EVERY INDIVIDUAL! It refers to ONLY the CLASS of PERSONS that are known as FREEMEN, the very same CLASS from which THE MILITIA was drawn from! OTHERWISE, the primary right is of THE BODY POLITIC in its collective capacity, acting for common defense by establishing and maintaining its militia!
The rights are different rights in each Amen. The People is the same The People. But some of the RIGHTS apply ONLY to the People in their collective capacity as the enfranchised body politic (the whole People), others to certain members of that class taken collectively (e.g. the militia drawn from "the body of the People), others to a specific sub-class of The People (The People of the State), others to the Freemen who comprise The People, taken collectively or as an individual Freeman.
Second Thoughts: What the right to bear arms really means
by Akhil Reed Amar
(http://www.constitution.org/2ll/2ndschol/103wha.htm)
The amendment speaks of a right of "the people" collectively rather than a right of "persons" individually.
And it uses a distinctly military phrase: "bear arms." A deer hunter or target shooter carries a gun but does not, strictly speaking, bear arms. The military connotation was even more obvious in an earlier draft of the amendment, which contained additional language that "no one religiously scrupulous of bearing arms shall be compelled to render military service in person." Even in the final version, note how the military phrase "bear arms" is sandwiched between a clause that talks about the "militia" and a clause (the Third Amendment) that regulates the quartering of "soldiers" in times of "war" and "peace." Likewise, state constitutions in place in 1789 consistently used the phrase "bear arms" in military contexts and no other.
... anachronistically, libertarians read "the people" to mean atomized private persons, each hunting in his own private Idaho, rather than the citizenry acting collectively.
But, when the Constitution speaks of "the people" rather than "persons," the collective connotation is primary.
"We the People" in the preamble do ordain and establish the Constitution as public citizens meeting together in conventions and acting in concert, not as private individuals pursuing our respective hobbies. The only other reference to "the people" in the Philadelphia Constitution of 1787 appears a sentence away from the preamble, and here, too, the meaning is public and political, not private and individualistic. Every two years, "the people" -- that is, the voters -- elect the House.
To see the key distinction another way, recall that women in 1787 had the rights of "persons" (such as freedom to worship and protections of privacy in their homes) but did not directly participate in the acts of "the people" -- they did not vote in constitutional conventions or for Congress, nor were they part of the militia/people at the heart of the Second Amendment.
The rest of the Bill of Rights confirms this communitarian reading. The core of the First Amendment’s assembly clause, which textually abuts the Second Amendment, is the right of "the people" -- in essence, voters -- to "assemble" in constitutional conventions and other political conclaves. So, too, the core rights retained and reserved to "the people" in the Ninth and Tenth Amendments were rights of the people collectively to govern themselves democratically.
"The Fourth Amendment is trickier: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated."
Here, the collective "people" wording is paired with more individualistic language of "persons." And these words obviously focus on the private domain, protecting individuals in their private homes more than in the public square. Why, then, did the Fourth use the words "the people" at all? Probably to highlight the role that jurors -- acting collectively and representing the electorate -- would play in deciding which searches were reasonable and how much to punish government officials who searched or seized improperly. An early draft of James Madison’s amendment protecting jury rights helps make this linkage obvious and also resonates with the language of the Second Amendment: "[T]he trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate." Note the obvious echoes here -- "security" (Second Amendment), "secure" (Fourth Amendment), and "securities" (draft amendment); "shall not be infringed," "shall not be violated," and "ought to remain inviolate"; and, of course, "the right of the people" in all three places.
If we want an image of the people’s militia at the Founding, we should think first of the militia’s cousin, the jury. Like the militia, the jury was a local body countering imperial power -- summoned by the government but standing outside it, representing the people, collectively. Like jury service, militia participation was both a right and a duty of qualified voters who were regularly summoned to discharge their public obligations. Like the jury, the militia was composed of amateurs arrayed against, and designed to check, permanent and professional government officials (judges and prosecutors, in the case of the jury; a standing army in the case of the militia). Like the jury, the militia embodied collective political action rather than private pursuits.
Founding history confirms this. The Framers envisioned Minutemen bearing guns, not Daniel Boone gunning bears. When we turn to state constitutions, we consistently find arms-bearing and militia clauses intertwined with rules governing standing armies, troop-quartering, martial law, and civilian supremacy. Libertarians cannot explain this clear pattern that has everything to do with the military and nothing to do with hunting.
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Amar’s overall 4th Amen explanation makes tentative sense, but I’m not totally convinced by it, and MY latest hypothesis would suggest a more limited right than is normally thought, but, hey, that is the same situation with the 1st and 2nd Amens too, isn’t it?
Here’s something I wrote before I read Amar’s piece:
It would be awkward to have said ‘right of persons to be secure in their persons, etc.’
Look at Madison’s ORIGINAL phrasing of this:
"The rights of the people to be secured in THEIR [emph. added] persons, THEIR homes, THEIR papers, and THEIR other property from all unreasonable searches and seizures..."
Why in the plural, even collective, sense at all? This could have been rewritten to emphasize the individual nature of the right, for example, the NY proposal (and likewise the VA proposal) said:
"That every Freeman has a right to be secure from all unreasonable searches and seizures of his person his papers or his property..."
but it was merely shortened and tightened by Congress. There was almost no House debate over this amendment other than a few minor insertions, as it was late August and they were trying to wrap up. Perhaps they were not as fastidious as Adams was in the 1780 Mass. Constitution for maintaining consistency of usage.
No question, this, at first, seems to us to be an INDIVIDUAL right, but the phrasing should have been more consistent to reflect that if it were.
Of all the amendments, THIS one varies MOST from the recommendations of the state proposals in this regard, and strays most from otherwise consistent usage of plural "the people" and individual "person" or cognates (including the 1st AND 2nd Amens, to be addressed separately).
Unless there is collective sense I’m missing.
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Since then, having read Amar’s piece, I find it less than wholly satisfying re the 4th, but I see his point; in any case, there is more reason to accept ONE amen, the 4th, as being able to be seen as involving the collective people, in some philosophical and abstract way that isn’t readily apparent, and as *I* have now further suggested, than to see at least THREE amens, plus OTHER uses in the Constitution, as involving individuals when it is so clear that the collective sense IS meant, based on ALL the other clues and contexts.
Even the 1st Amen reference to THE People, which some harp on, WAS originally written to refer ONLY to THE People in their collective role! In one of the longest and most divided ongoing House debates in 1789, the original phrase in what was to become the 1st Amen was the flashpoint for what divided those who sought more democratic input from those who wanted the representatives to be more independent. The original words read:
"The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances." (Madison, June 1789)
Rep. Tucker wanted to add after "consulting for their common good," "to instruct their representative." THIS was the nature of the PEOPLE assembling that the Congress had in mind.
When the Mass. Constitution is referenced against this, which Madison surely had access to, there is less doubt that the intention was for collective consistency; however, unlike in Mass, the US Constitution was picked apart and reassembled by many authors, and the end result may have lacked the unifying hand of one single author or editor, as Mass. did with Adams.
So, the enfranchised persons who made up THE PEOPLE, and who COULD serve in juries, militias, legislatures, and conventions, rather than EACH "person" per se (which included women, children, and other "second-class citizens") were those Madison was primarily concerned with protecting, since THEY were the only persons whose right and expectation to be free from govt snooping affected their ability to act freely and independently in the public arena (juries, legislatures, conventions) free from fear or intimidation. And this even comports with the NY and VA proposals that said:
"That every FREEMAN has a right to be secure from all unreasonable searches and seizures of his person his papers or his property..."
Why did this say FREEMAN (sometimes FREEHOLDER) rather than just citizen/person/individual? FREEMAN is the ONLY singular term that leaves out ALL the citizens/persons/individuals who are NOT those included in the enfranchised (AND propertied!) class known as THE PEOPLE, and so referred to in every other instance!
Perhaps Madison and the Congress WERE JUST AS consistent as Adams was in the Mass. Constitution of 1780 in using that term, even if we didn’t notice it at first!
IF this is so, than Amar, himself, is wrong to focus on the right of privacy as being for ANY person who was not otherwise part of the ENFRANCHISED PEOPLE! (This NOW includes blacks and women, of course, but not, for example, kids, which would allow school locker searches as clearly NOT being a 4th Amen violation.)
Doesn’t it make more sense that the same guys who OK’d slavery and said that women couldn’t vote were not so concerned about those same "second-class citizens" not having various "security" rights as well? What rights and powers did blacks, kids, and women have that were to be "retained" by them in Amens 9 and 10? Which of these persons were going to "consult" or "petition the legislature" when they couldn’t vote or serve? Which of these persons were going to serve on juries or in the militia, or vote on the maintenance of the militia, and who needed to be "secure in their persons... papers... property" to prevent intimidation when serving in office, on juries, or as voters? Which of these persons voted each two years on the House races? NONE, and so, THEY weren’t PART OF THE PEOPLE the Constitution speaks of in EACH case!
"Individuals" included women, children, and other non-enfranchised persons; THE PEOPLE was ALWAYS the enfranchised body-politic in its corporate, collective sense! The PEOPLE is not numerical, it is conceptual; IT is a singular entity, like a corporation, which also is made up of individuals, yet it has perpetual existence and powers independent and beyond the individuals comprising it. As a single stockholder in AOL, could *I* buy up the whole Time-Warner Company? NO, only the corporate entity can do that, whether *I* agree or not.
Checks to the Boy Scouts of America can be tax-deductible, but NOT checks made out to an individual boy scout; Congress can declare war, but an individual congresscritter can’t; a jury has the right to send someone to prison, but not an individual jury member; THE PEOPLE can democratically decide how to organize and control the militia’s upkeep and readiness ("keep arms" as Adams meant it), and who gets to serve in it ("bear arms" as Madison meant it), but there are NO one-man militias and each or any single militiaman doesn’t get to unilaterally set policy or order himself into battle.
THE PEOPLE -- the Enfranchised Body Politic, or Freeman Class in its collective and political capacity -- has the right to keep and bear arms. This refers to SEVERAL rights.
THE COLLECTIVE or COMMUNITARIAN right is that the EBP can democratically organize, control, arm and maintain the readiness and upkeep of the state’s militia or military function (keep arms, as John Adams meant it), and man the well regulated state militia and engage them in the common defense (bear arms, as Madison meant it); this right is NOT fully distributive (does any one individual "keep" all the inventory of the WHOLE militia, or can any one militiaman decide unilaterally to "bear arms" against the neighboring state?).
THE INDIVIDUAL RIGHT (other than the conscientious objector right Madison sought), which is actually the DISTRIBUTIVE RIGHT, is that EACH qualified MEMBER of the PEOPLE CLASS who is drawn from the "body of the PEOPLE" and thus is qualified to serve IN the militia, may serve in the state’s militia without federal interference, and may keep HIS personal militia weapons at home, if feasible. Also, an individual member of the PEOPLE class, whether in the militia or not, may participate in the COLLECTIVE right to the extent that he may VOTE on his civilian state reps who control the militia, and some of his officers who run the militia, or otherwise get more directly involved in the operation of the militia on an administrative level.
There’s also the RIGHT of the militias to survive and be preserved, and the right of the states to maintain those state militias, and use them for state purposes, and appoint the officers and administer the discipline Congress provides for.
THAT’S IT! Nothing about "guns" or any or all individuals "owning and carrying guns" independent of the need to preserve and maintain the militias!
THE PEOPLE ALWAYS refers in the Constitution and BoR to the enfranchised body politic in its collective and political capacity.
As simple proof look at the Preamble, and at Art. I about THE PEOPLE choosing the members of the House. IF THE PEOPLE simply meant a "society of individuals" and individuals include women, kids, blacks, injuns, furreners, felons, then the idea of all those being involved in the political establishment of the Constitution, or of voting towards the election of Congresscritters is ludicrous on the face of it.
Or as was stated in the 1905 gun-rights case CITY OF SALINA v. BLAKSLEY. (Supreme Court of Kansas. Nov. 11, 1905.) [although this deals with the Kansas state constitution, the legal meaning of THE PEOPLE is clear]:
"The provision in section 4 of the Bill of Rights "that the people have the right to bear arms for their defense and security" refers to the people as a collective body. It was the safety and security of society that was being considered when this provision was put into our Constitution. It is followed immediately by the declaration that standing armies in time of peace are dangerous to liberty and should not be tolerated, and that "the military shall be in strict subordination to the civil power." It deals exclusively with the military. Individual rights are not considered in this section."
See... "the people as a collective body"! Not some late 20th century communist invention here, but a 1905 KANSAS judge! And this follows an even earlier comment by a SCotUS justice in Cruikshank:
"Citizens are the members of the political community to which they belong. They are the people who compose the community, and who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights. In the formation of a government, the people may confer upon it such powers as they choose. The government, when so formed, may, and when called upon should, exercise all the powers it has for the protection of the rights of its citizens and the people within its jurisdiction; but it can exercise no other. The duty of a government to afford protection is limited always by the power it possesses for that purpose." -- US v. CRUIKSHANK, 92 U.S. 542 (1875)
"the protection of their individual as well as their collective rights"
There it is in black and white from a Supreme Court Justice! What did the SCotUS in Cruikshank mean then, when they state categorically that there ARE collective rights?!!! That was over 125 years ago! Were they lying? Wrong? Deluded? Communists?
For those who claim that the Founders had no such concept as "collective rights" and that term is a modern invention (how modern IS 1875!), and that they didn’t even USE the term "collective," I offer THIS proof:
Here’s what Noah Webster, renowned Federalist and #1 authority on American English of the era, said on the nature of the COLLECTIVE BODY POLITIC (I have put relevant words in upper case) in ***1785***!
Sketches of American Policy, by NOAH WEBSTER, Jun’r, Esq.
I. Theory of Government
The public body engages to protect the person and property of each member, and each member engages to be obedient to THE PUBLIC BODY. In other words, each individual engages to assist his fellow citizens in protecting the RIGHTS OF THE WHOLE...
Thus a state, composed of ten thousand individual interests, becomes, with respect to other states, ONE SINGLE INTEREST and is considered AS AN INDIVIDUAL. A STATE thus formed by compact is a sovereign power and has a right to command the services and obedience of each member.
This body, when active, is called a sovereignty when compared with other states, it is called simply a power. The members, spoken of collectively, are called people; spoken of severally, they may be called citizens; and each member, being under the control of THE WHOLE BODY, is, in this respect, a subject. In this act of association there is a reciprocal engagement between the public body and its particular members. The public body engages to protect the person and property of each member, and each member engages to be obedient to THE PUBLIC BODY. In other words, each individual engages to assist his fellow citizens in protecting the THE RIGHTS OF THE WHOLE, merely from a regard to his own safety; and each engages to yield obedience to the PUBLIC VOICE from the same motive. Hence we may observe that what is called patriotism or public spirit; is nothing but self-interest, acting in conjunction with other interests for its own sake; and that public good is but the aggregate SUM OF the individual interests, IN A STATE.
Thus a state, composed of ten thousand individual interests, becomes, with respect to other states, ONE SINGLE INTEREST and is considered AS AN INDIVIDUAL. A STATE thus formed by compact is A SOVEREIGN POWER and has a right to command the services and obedience of each member. Should a question arise, Whether such a state can exercise acts of tyranny? I answer, that it is impossible. The sovereign power IS THE WHOLE BODY OF THE PEOPLE COLLECTIVELY, and the people will never make laws oppressive to themselves... When therefore the sovereign power resides IN THE WHOLE BODY OF THE PEOPLE, it cannot be tyrannical, not because it is barred by a political necessity, but because the same power which frames a law, suffers all its consequences, and no individual OR COLLECTION OF INDIVIDUALS will knowingly frame a law injurious to itself...
The essence of sovereignty consists in the GENERAL VOICE OF THE PEOPLE. But each individual pursues his own interest; and consults the good of others no farther than his own interest requires. Hence the necessity of laws which respect THE WHOLE BODY COLLECTIVELY, and restrains the pursuits of individuals when they infringe THE PUBLIC RIGHTS... there are three distinct relations subsisting in a well organized society; the relation of citizens to each other as individuals; the relation of each citizen TO THE WHOLE COLLECTIVELY OR SOVEREIGN POWER and the relation of each to the magistracy or executive authority...
THE PEOPLE IN THEIR COLLECTIVE CAPACITY, enact laws; the magistrates receive the laws from them with the power OF THE WHOLE BODY to enforce them...
---
That the 2nd Amen recognizes no PERSONAL right is made clear in Cockrum v. State, 24 Texas 394 (1859):
The clause in the constitution of the United States, that it is said to be in violation of, is the 2d article of the amendments: "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." O. & W. Dig. 7. The clause in the constitution of this state, which it is said to violate, is the 13th section of the bill of rights: "Every citizen shall have the right to keep and bear arms, in the lawful defense of himself or the state." O. & W. Dig. 14.
The object of the clause first cited, has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed. The clause cited in our bill of rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen. The right of a citizen to bear arms, in the lawful defense of himself or the state, is absolute. He does not derive it from the state government, but directly from the sovereign convention of the people that framed the state government.
***The clause cited in our bill of rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen.***
IF the 2nd Amen secured a personal right, how could he have made this statement? If the Texas state constitution didn’t recognize a PERSONAL right to keep and bear arms, how could he have said it does?
Further, look at the distinctions made in the cases presented in the govt’s argument in US v. Miller (39):
In Salina v. Blaksley, 72 Kan. 230, the court, in reference to the provision of the State Constitution declaring that the people had the right to bear arms for their defense and security, said (pp. 232-233):
That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal constitution, which says : "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." Here also the right of the people to keep and bear arms for their security is preserved, and the manner of bearing them for such purpose is clearly indicated to be as a member of a well-regulated militia, or some other military organization provided for by law...
In State v. Buzzard, 4 Ark. 18, the court, in referring to the Second Amendment, said (pp. 24-25):
If these general powers of the government are restricted in regard to the right to keep and bear arms, the limitation, to whatever extent it may exist, will be better understood, and more clearly seen, when the object for which right is supposed to have been retained, is stated. That object could not have been to protect or redress by individual force, such rights as are merely private and individual, as has been already, it is believed, sufficiently shown; consequently, the object must have been to provide an additional security for the public liberty and the free institutions of the State, as no other important object is perceived, which the reservation of such right could have been designed to effect. Besides which, the language used appears to indicate, distinctly, that this, and this alone, was the object for which the article under consideration was adopted. And it is equally apparent, that a well regulated militia was considered by the people as the best security a free state could have, or at least, the best within their power to provide. But it was also well understood , that the militia, without arms, however well disposed, might be unable to resist, successfully, the efforts of those who should conspire to overthrow the established institutions of the country, or subjugate their common liberties; and therefore, to guard most effectually against such consequences, and enable the militia to discharge this most important trust, so reposed in them, and for this purpose only, it is conceived the right to keep and bear arms was retained, and the power which, without such reservation, would have been vested in the government, to prohibit, by law, their keeping and bearing arms for any purpose whatever, was so far limited or withdrawn: which conclusion derives additional support from the well known fact, that the practice of maintaining a large standing army in times of peace, had been denounced and repudiated by the people of the United States, as an institution dangerous to civil liberty and a free State, which produced, at once, the necessity of providing some adequate means for the security and defence of the State, more congenial to civil liberty and republican government. And it is confidently believed that the people designed and expected to accomplish this object, by the adoption of the article under consideration, which would forever invest them with a legal right to keep and bear arms for that purpose; but it surely was not to designed to operate as an immunity to those, who should so keep and bear their arms as to injure or endanger the private rights of others, or in any manner prejudice the common interests of society...
In recognition of this principle, this Court, in Robertson v. Baldwin, 165 U.S. 275, 281-282, stated that the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons...
It wasn't relevant to the topic of RIGHTS of the STATES, just as Bouvier (citing Story and Wilson) proves. You just claim your claim, but you offer no proof and don't refute MY evidence, because YOU CAN'T!Seems to have skipped the "people" in the 4th.......
So you blatantly assert. But where's your PROOF?
Like, what POWERS do individuals have that were not given to the US Congress? NAME ONE! Coining money? Declaring war? Making treaties? Did INDIVIDUAL ever HAVE THOSE POWERS?
Besides confusing "people" with THE PEOPLE, a legal term of art, you clearly are ignorant of what the FOUNDERS said on this subject:
Here’s a cite from the Bouvier Law Dictionary, THE authoritative source for what terms USED in the Constitution meant.
The definition for the CONSTITUTION OF THE UNITED STATES OF AMERICA in Bouvier includes the 12 amendments ratified up to 1856:
"13. - 1. Relates to religious freedom; the liberty of the press; the right of the people to assemble and petition.
14. - 2. Secures to the people the right to bear arms.
And I am not talking about states rights - I am addressing my
individual right to be free of inappropriate searches as addressed in
the 4th Amendment
YOU have the DISTRIBUTIVE RIGHT IF you are a member of the PEOPLE CLASS, as Verdugo ruled. Are foreigners not individuals? Are not kids? Yet the SCotUS has ruled that foreign "individuals" can't claim 4th Amen rights, and kids can have their lockers searched in schools, because NEITHER is a member of the PEOPLE CLASS, even though they ARE individuals. Hence, it logically follows that the right is NOT an "individual" one like the ones regarding freedom of speech or 5th Amen rights, but only applies to members of a COLLECTIVE CLASS.
I suggest you read again what I posted (or more likely read it for the FIRST TIME, as you seem to NOT have comprehended it, as I claimed you wouldn't, so my claim was likely NOT an insult, but just a good prediction!)
; what it says is non-specific to who THE PEOPLE are, which it addresses elsewhere:
16. - 4. Regulates the right of search, and of arrest on criminal charges.
Still an individual right
No, a DISTRIBUTIVE RIGHT only accruing to members of THE PEOPLE CLASS, just as Rehnquist stated.
Again, if it WERE an "individual" right, Verdugo would have had it, and so would kids whose lockers are searched. Do you get the difference? Just calling rights "individual" or "personal" doesn't make them so!
One can only call the right to "bear arms" an "individual right" IF you are ignorant of what the term "bear arms" means and what the term THE PEOPLE means!
Interesting that YOU ignore all this evidence that throws YOUR claims into a cocked hat!
Care to address it now, and refute any of it with superior evidence?
Nothing to address - I pointed out the 4th protects an individual
right and you have posted nothing to refute that.
No, you made the BLATANT ASSERTION that it does, sans any authoritative and superior evidence to MINE, and I have posted both evidence AND LOGIC that refutes your claim. Again, it's clear you really haven't read what I posted!
Just saying I haven't posted it doesn't refute what I HAVE posted! It's all there and YOU ignore it completely, hence you LOSE THE ARGUMENT!
See, *I* pointed out that the 4th protects a DISTRIBUTIVE right and YOU have posted nothing to refute THAT! NOR to prove YOUR claim either. So you lose both ways: you don't refute me, and you don't support YOU! BZZZZZT. But thanks for playing!
21. - 9. Secures to the people the rights retained by them.
22.- 10. Secures the rights to the states, or to the people the rights they have not granted."
[notice, RIGHTS are secured to THE STATES!]
So here’s what Hamilton has to say in Federalist #84 (caps his):
"I shall only observe that as it is a plain dictate of common-sense, so it is also an established doctrine of political law, that "STATES NEITHER LOSE ANY OF THEIR RIGHTS, NOR ARE DISCHARGED FROM ANY OF THEIR OBLIGATIONS, BY A CHANGE IN THE FORM OF THEIR CIVIL GOVERNMENT."[9]"
See, Hamilton says that states have rights!
In late 18th Century official documentation AND deliberations, including the US Articles of Confederation, US Constitution convention and ratification conventions, Jefferson’s comments on his contribution to the BoR, and the words of prominent anti-ratificationist Luther Martin, is PROOF that the Founders certainly believed that to be so!
[I have put RIGHT or RIGHTS in upper case to make it easier to spot; they do not appear that way in the original]
The Articles of Confederation:
To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting.
Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.
I.The Stile of this Confederacy shall be "The United States of America".
II.Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and RIGHT, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
IX.The United States in Congress assembled, shall have the sole and exclusive RIGHT and power of determining on peace and war...
The United States in Congress assembled shall also have the sole and exclusive RIGHT and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States -- fixing the standards of weights and measures throughout the United States -- regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative RIGHT of any State within its own limits be not infringed or violated...
---
Thus proving that, OFFICIALLY, at least to the authors of the AoC, that states EACH have and retain powers, jurisdictions, AND RIGHTS not expressly delegated, including legislative RIGHTS, and that the US govt and Congress have RIGHTS AND POWERS.
As the new Constitution was being created and debated, what did the participants say about whether individual states, AND the NATION of states, AND the Federal Government itself had rights?:
The Debates in the Several State Conventions on the Adoption of the Federal Constitution [Elliot's Debates, Volume 5]
(http://lcweb2.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(ed005242)))
On to the Constitutional Convention: August 18-20, 1787
In Convention. -- Mr. PINCKNEY submitted to the House, in order to be referred to the committee of detail, the following propositions: -- "The United States shall be forever considered as one body corporate and politic in law, and entitled to all the RIGHTS, privileges, and immunities, which to bodies corporate do or ought to appertain."
"To fix, and permanently establish, the seat of government of the United States, in Which they shall possess the exclusive RIGHT of soil and jurisdiction."
Mr. KING moved to insert, before the word "power," word "sole,"
giving the United States the exclusive RIGHT to declare the punishment of treason.
Mr. WILSON. In cases of a general nature, treason can only be against the United States; and in such they should have the sole RIGHT to declare the punishment;
[THUS, according to Framers of the Constitution, The United States is one body corporate with RIGHTS -- I guess collective entities DO have rights after all! -- Congress has the RIGHT of soil and jurisdiction over DC, having sole power to declare punishment is equal to the exclusive or sole RIGHT to do so.
THIS would seem to confirm that the the FEDERAL GOVT HAS RIGHTS as well as powers, and that, in at least THESE instances, the RIGHT to do something is IDENTICAL to the POWER to DO IT!]
Was this an aberration, an idiosyncratic one-time-only flub? Let’s go from Philly to Hillsborough:
The Debates in the Several State Conventions on the Adoption of the Federal Constitution [Elliot's Debates, Volume 4]
(http://lcweb2.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(ed0044)))
Debates in the Convention of the State of North Carolina, On the Adoption of the Federal Constitution.
Mr. DAVIE. It is well known that Congress had a discretionary RIGHT to raise men and money; but they had no power to do either...
The encroachments of some states on the RIGHTS of others, and of all on those of the Confederacy, are incontestable proofs of the weakness and imperfection of that system.
Mr. IREDELL. But the fact is, that they have, by degrees, increased their power to an astonishing degree, and, when they think proper to exert it, can command almost any thing they please. This great power they enjoy, by having the name of representatives of the people, and the exclusive RIGHT of originating money bills. What authority, then, will our representatives not possess, who will really represent the people, and equally have the RIGHT of originating money bills?... The circumstance of their representing the great body of the people, alone gives them great weight. This weight has great authority added to it, by their possessing the RIGHT (a RIGHT given to the people’s representatives in Congress) of exclusively originating money bills...
It says, expressly, that the House of Representatives shall consist of members chosen for two years, and that the Senate shall be composed of senators chosen for six years. At the expiration of these terms, the RIGHT of election reverts to the people AND the states;
Mr. SPENCER. Mr. Chairman, it appears to me that this clause, giving this control over the time, place, and manner, of holding elections, to Congress, does away the right of the people to choose the representatives every second year, and impairs the RIGHT of the state legislatures to choose the senators...
... and their knowledge of the ultimate RIGHT of Congress to collect taxes would stimulate their exertions to raise money. But if the power of taxation be given in the first instance to Congress, the state legislatures will be liable to be counteracted by the general government in all their operations... The RIGHT of Congress to lay taxes ultimately, in case of non-compliance with requisitions, would operate as a penalty, and would stimulate the states to discharge their quotas faithfully.
Gov. JOHNSTON. Mr. Chairman, in my opinion, if there be any difference between this Constitution and the Confederation, with respect to treaties, the Constitution is more safe than the Confederation. We know that two members from each state have a RIGHT, by the Confederation, to give the vote of that state, and two thirds of the states have a RIGHT also to make treaties.
Mr. DAVIE. Mr. Chairman, although treaties are mere conventional acts between the contracting parties, yet, by the law of nations, they are the supreme law of the land to their respective citizens or subjects... The power of making treaties has, in all countries and governments, been placed in the executive departments... ; because, by the Confederation, Congress had power to make treaties. It was one of those original RIGHTS of sovereignty which were vested in them; and it was not the deficiency of constitutional authority in Congress to make treaties that produced the necessity of a law to declare their validity; but it was owing to the entire imbecility of the Confederation.
Mr. SPENCER. I can see no power that can keep up the little remains of the power of the states. Our RIGHTS are not guarded. There is no declaration of rights, to secure to every member of the society those unalienable rights which ought not to be given up to any government. Such a bill of rights would be a check upon men in power. Instead of such a bill of rights, this Constitution has a clause which may warrant encroachments on the power of the respective state legislatures. I know it is said that what is not given up to the United States will be retained by the individual states. I know it ought to be so, and should be so understood; but, sir, it is not declared to be so.
In the Confederation it is expressly declared that all RIGHTS and powers, of any kind whatever, of the several STATES, which are not given up to the United States, are expressly and absolutely retained, to be enjoyed by the STATES.
[Let me repeat that one! "ALL RIGHTS AND POWERS, of any kind whatever, OF the several STATES... not given up... are... retained... by the STATES"!]
In order to constitute this security, it appears to me there ought to be such a clause in the Constitution as there was in the Confederation, expressly declaring, that every power, jurisdiction, and RIGHT, which are not given up by it, remain in the STATES. Such a clause would render a bill of rights unnecessary. But as there is no such clause, I contend that there should be a bill of rights, ascertaining and securing the great RIGHTS of the states and people.
Mr. MACLAINE. It would be very extraordinary to have a bill of rights, because the powers of Congress are expressly defined; and the very definition of them is as valid and efficacious a check as a bill of rights could be, without the dangerous implication of a bill of rights. The powers of Congress are limited and enumerated. We say we have given them those powers, but we do not say we have given them more. We retain all those RIGHTS which we have not given away to the general government.
[Is there any doubt, in those last cites, that the RIGHTS not given to the central government are IDENTICAL to the POWERS? That RIGHTS can remain in the STATES? THAT STATES HAVE RIGHTS AND POWERS?]
For the views of a leading anti-Federalist:
Luther Martin Writings and Biography
(http://www.lexrex.com/bios/lmartin.htm)
The Genuine Information, delivered to the Legislature of the State of Maryland, relative to the Proceedings of the General Convention, held at Philadelphia, in 1787, by Luther Martin, Esq., Attorney-General of Maryland, and one of the Delegates in the said Convention.
(http://lcweb2.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(ed001181)))
1. Resolved, That it is the opinion of this committee, that a national government ought to be established, consisting of a supreme legislative, judiciary, and executive...
5. That each branch ought to possess the RIGHT of originating acts.
6. That the national legislature ought to be empowered to enjoy the legislative RIGHTS vested in Congress by the Confederation, and moreover to legislate in all cases to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation;…
10. That the national executive shall have a RIGHT to negative any legislative act, which shall not afterwards be passed unless by two thirds of each branch of the national legislature.
It was denied that the equality of suffrage was originally agreed to on principles of necessity or expediency; on the contrary, that it was adopted on the principles of the RIGHTS of men, and the RIGHTS of states, which were then well known, and which then influenced our conduct, although now they seem to be forgotten. For this, the Journals of Congress were appealed to... the most convincing proof it was agreed to, and adopted, not from necessity, but upon a full conviction that, according to the principles of free government, the states had a RIGHT to that equality of suffrage...
... we would not labor under the imputation of being unwilling to form a strong and energetic federal government; but we would publish the system which we approved, and also that which we opposed, and leave it to our country and the world at large to judge, between us, who best understood the RIGHTS of freemen and free states, and who best advocated them;
The states have a RIGHT to an equality of representation. This is secured to us by our present Articles of Confederation; we are in possession of this RIGHT. It is now to be torn from us. What security can you give us that, when you get the power the proposed system will give you, when you have men and money, you will not force from the states that equality of suffrage, in the second branch, which you now deny to be their RIGHT, and only give up from absolute necessity?
... that it is the state governments which are to watch over and protect the RIGHTS of the individual, whether rich or poor, or of moderate circumstances, and in which the democratic and aristocratic influence or principles are to be so blended, modified, and checked, as to prevent oppression and injury --
that the federal government is to guard and protect the states and their RIGHTS, and to regulate their common concerns...
Another consideration, Mr. Speaker, it was thought, ought to have great weight to prove that the smaller states cannot depend on the Senate for the preservation of their RIGHTS, either against large and ambitious states, or against an ambitious, aspiring President.
It was my opinion, sir, that the states ought not to be totally deprived of the RIGHT to emit bills of credit, and that, as we had not given an authority to the general government for that purpose, it was the more necessary to retain it in the states.
That it was inconsistent with the RIGHTS of free and independent states to have their territory dismembered without their consent, was the principal argument used by the opponents of this proposition.
That it was inconsistent with the RIGHTS of free and independent states to have their territory dismembered without their consent, was the principal argument used by the opponents of this proposition. The truth of the objection we readily admitted, but at the same time insisted that it was not more inconsistent with the RIGHTS of free and independent states than that inequality of suffrage and power which the larger states had extorted from the others; and that, if the smaller states yielded up their RIGHTS in that instance, they were entitled to demand from the states of extensive territory a surrender of their RIGHTS in this instance; and in a particular manner, as it was equally necessary for the true interest and happiness of the citizens of their own states, as of the Union. But, sir, although, when the large states demanded undue and improper sacrifices to be made to their pride and ambition, they treated the RIGHTS of free states with more contempt than ever a British Parliament treated the RIGHTS of her colonial establishment, yet, when a reasonable and necessary sacrifice was asked from them, they spurned the idea with ineffable disdain. They then perfectly understood the full value and the sacred obligation of state RIGHTS, and at the least attempt to infringe them, where they were concerned, they were tremblingly alive, and agonized at every pore.
The people of the different states never made any objection to the manner in which the Articles of Confederation were formed or ratified, or to the mode by which alterations were to be made in that government: with the RIGHTS of their respective states they wished not to interfere. Nor do I believe the people, in their individual capacity, would ever have expected or desired to have been appealed to on the present occasion, in violation of the RIGHTS of their respective states, if the favorers of the proposed Constitution, imagining they had a better chance of forcing it to be adopted by a hasty appeal to the people at large, (who could not be so good judges of the dangerous consequence,) had not insisted upon this mode.
When I took my seat in the Convention, I found them attempting to bring forward a system which, I was sure, never had entered into the contemplation of those I had the honor to represent, and which, upon the fullest consideration, I considered not only injurious to the interest and RIGHTS of this state, but also incompatible with the political happiness and freedom of the states in general.
I, sir, am in that predicament. I have the honor to hold an appointment in this state. Had it been considered any objection, I presume I should not have been appointed to the Convention. If it could have had any effect on my mind, it would only be that of warming my heart with gratitude, and rendering me more anxious to promote the true interest of that state which has conferred on me the obligation, and to heighten my guilt, had I joined in sacrificing its essential RIGHTS.
[And, as a kicker, here’s some of what Martin had to say about the militia; HIS argument mentions the ONLY PURPOSE for which a militia amendment was sought by the anti-Feds, the ONLY argument EVER mentioned in ALL the militia debates:]
These observations, sir, procured from some of the members an open avowal of those reasons by which we believed, before, that they were actuated. They said that, as the states would be opposed to the general government, and at enmity with it -- which, as I have already observed, they assumed as a principle -- if the militia was under the control and the authority of the respective states, it would enable them to thwart and oppose the general government.
They said the states ought to be at the mercy of the general government, and therefore that the militia ought to be put under its power, and not suffered to remain under the power of the respective states. In answer to these declarations, it was urged that if, after having retained to the general government the great powers already granted -- and among those, that of raising and keeping up regular troops without limitation -- the power over the militia should be taken away from the states, and also given to the general government, it ought to be considered as the last coup de grace to the state governments; that it must be the most convincing proof, the advocates of this system design the destruction of the state governments, and that no professions to the contrary ought to be trusted; -- and that every state in the Union ought to reject such a system with indignation, since, if the general government should attempt to oppress and enslave them, they could not have any possible means of self-defence;
[Hmmm. Is THIS what was meant by "self-defense"? Is this an INDIVIDUAL right to private self-defense or a collective right? Whose right is being infringed? Behold:]
because the proposed system, taking away from the states the RIGHT of organizing, arming, and disciplining of the militia, the first attempt made by a state to put the militia in a situation to counteract the arbitrary measures of the general government would be construed into an act to rebellion or treason, and Congress would instantly march their troops into the state.
[Ah, it’s a RIGHT of the states to organize, arm, and discipline their militias! It’s a STATE RIGHT of public COMMON defense, where they defend THEMSELVES! This is what a leading anti-Federalist thought and THEY were the ones pushing FOR an amendment to satisfy THIS concern ONLY; IF there were another concern, wouldn’t he mention it to bolster his argument?]
It was further observed that, when a government wishes to deprive their citizens of freedom, and reduce them to slavery, it generally makes use of a standing army for that purpose, and leaves the militia in a situation as contemptible as possible, lest they might oppose its arbitrary designs--that in this system we give the general government every provision it could wish for, and even invite it to subvert the liberties of the states and their citizens,
[So states not only have RIGHTS, they have LIBERTIES too!]
since we give it the RIGHT to increase and keep up a standing army as numerous as it would wish, and, by placing the militia under its power, enable it to leave the militia totally unorganized, undisciplined, and even to disarm them;
[So the Federal Government has the RIGHT to keep a standing army, and can "disarm" the militia when under ITS power by FAILING to arm it, as George Mason said: "The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless -- by DISARMING them. Under various pretenses, 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..."]
while the citizens, so far from complaining of this neglect, might even esteem it a favor in the general government, as thereby they would be freed from the burden of militia duties, and left to their own private occupations and pleasures.
---
Jefferson’s seventh letter regarding his contribution to the BoR process was written to Dr. Joseph Priestley, June 19, 1802, looking back at his role. It, like the other six letters, which were contemporary appeals for a Bill of Rights (written 12/20/87, 2/7/88, 2/12/88, 7/31/88, 3/13/89, and 3/18/89), can be found by date at: http://www.constitution.org/tj/jeff.htm
"One passage, in the paper you enclosed me, must be corrected. It is the following, "and all say it was yourself more than any other individual, that planned and established it" i. e., the Constitution. I was in Europe when the Constitution was planned, and never saw it till after it was established. On receiving it I wrote strongly to Mr. Madison, urging the want of provision for the freedom of religion, freedom of the press, trial by jury, habeas corpus, the substitution of militia for a standing army, and an express reservation to the States of all rights not specifically granted to the Union. He accordingly moved in the first session of Congress for these amendments, which were agreed to and ratified by the States as they now stand. This is all the hand I had in what related to the Constitution."
So, "an express reservation to the States of all rights not specifically granted to the Union"!
HERE in TJ’s OWN words is MORE proof that the 10TH AMEN equated POWERS with RIGHTS and put RIGHTS in a COLLECTIVE frame! It proves that TJ himself believed that STATES had rights, and the FEDERAL GOVERNMENT had rights!!! Now, this is NOT before 1789 and speculation or debate; this is IN 1802, when TJ was already President of the US! And here HE is commenting BACKWARDS on the Constitution and BoR of over a decade earlier and STILL talking about STATES RESERVING RIGHTS NOT GRANTED TO THE UNION, meaning the concept and understanding of the terms was the same in 1802 as it was in 1789 and 1787!!! That is, the mere passage of the Constitution did NOT eradicate the concept or understanding of those beliefs held before the Constitution. They MAY have used the word "powers," but the concept of RIGHTS was still understood as being something STATES and THE UNION could RESERVE, or GRANT!!!
So, was TJ deluded, mad, mistaken, disingenuous, senile, confused, ignorant??? Or was he merely expressing the obvious and universally-held understanding of what BOTH terms meant in this context, and confirming that when Madison "accordingly moved in the first session of Congress for THESE amendments," that THAT was what Madison submitted as his intended purposes and understandings of their meaning! That is, according to TJ, Madison submitted an amendment for "the substitution of militia for a standing army" and another for "an express reservation to the States of all rights not specifically granted to the Union"! And it was THESE [purposes behind the] amendments "which were agreed to and ratified by the States as they now stand."
In the first letter, 12/20/87, TJ says: "I have a right to nothing, which another has a right to take away; and Congress will have a right to take away trials by jury in all civil cases." Again Congress, which is a "collective" government entity, and NOT an individual, has a RIGHT!
I trust this cumulative evidence will dispel forever the myth that, to the authors of the Declaration of Independence, Articles of Confederation, Constitution, and Bill of Rights, rights could ONLY be individual in nature, be held only BY individuals, and that they encompassed ALL individuals in ALL cases and, further, that collective rights can’t exist, and are some fictional creation of late 20th century liberals!
I repeat the cite from US v. CRUIKSHANK:
"Citizens are the members of the political community to which they belong. They are the people who compose the community, and who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights. In the formation of a government, the people may confer upon it such powers as they choose. The government, when so formed, may, and when called upon should, exercise all the powers it has for the protection of the rights of its citizens and the people within its jurisdiction; but it can exercise no other. The duty of a government to afford protection is limited always by the power it possesses for that purpose." -- US v. CRUIKSHANK, 92 U.S. 542 (1875)
Then there's the further evidence in Bouvier's Law Dictionary, where it cites Joseph Story, perhaps the most revered Constitutional scholar of the first half of the 19th century, and HIS cites of Justice James Wilson -- signer of the Declaration of Independence, member of the Constitutional Committee on Detail (which put the Constitution in final form), appointed by Washington to the first Supreme Court, and a law professor at the University of Pennsylvania -- hence as final and unimpeachable a source as can exist:
("The Bouvier Law Dictionary remains the basis for the interpretation of Law since the founding of the American nation. In questions of law regarding legal definitions from that period it remains the final arbiter of any disputed interpretation of that law." http://uslawbooks.com/ajs/bouvier2001.pdf)
Judge Story discusses the relationship between "the people" and "the state" (equivalent expressions) and quotes Justice Wilson with respect to the rights of states (a state being a "moral person"):
"§ 208. In like manner the word "state" is used in various senses. In its most enlarged sense it means the people composing a particular nation or community. In this sense the state means the whole people, united into one body politic; and the state, and the people of the state, are equivalent expressions. Mr. Justice Wilson, in his Law Lectures, uses the word "state" in its broadest sense. "In free states," says he, "the people form an artificial person, or body politic, the highest end [and] noblest, that can be known. They form that moral person, which in one of my former lectures, I described, as a complete body of free, natural persons, united together for their common benefit; as having an understanding and a will; as deliberating, and resolving, and acting; as possessed of interests, which it ought to manage; as enjoying rights, which it ought to maintain; and as lying under obligations, which it ought to perform. To this moral person, we assign, by way of eminence, the dignified appellation of STATE." -- Joseph Story, "Commentaries on the Constitution of the United States," 1833.
---
So, if you want to refute Justice Wilson and ALL the Founders and authorities who PROVED that rights can be had by collective entities such as the collective body politic (THE PEOPLE), or THE STATE, or even GOVERNMENTS and LEGISLATURES, simply show where these cites are NOT accurate, that they are NOT from bona fide source authorities, and that YOU have superior sources that say otherwise.
Or else admit you are an ignorant and clueless ninny who just makes up silly claims and tries to palm them off as fact.
and the Right to Keep and Bear Arms is long recognized andBut most of those were written AFTER the US Const, and whatever THEY say has no bearing on what was MEANT by the authors of the US Const:
explicitly reference in the Constitutions of 44 states.
"Most if not all the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below." US v. Miller, 1939
And many of the states have RE-written their constitutions since 1963 under NRA prompting, precisely to CHANGE the language to make the words "bear arms" go from their original militia meaning to INCLUDE hunting, sport, and personal usages other than militia service, in a clear attempt to subvert the original purpose and meaning.
Human sacrifices is the STRAWMAN YOU just introduced asIt's an EXAMPLE of one of an INFINITE number of things that are simply NOT in the Const, hence, it shows how silly his claim of "WHERE does it say in the Const that I DON'T have the right to... whatever"! It's up to one to show where a right or power IS in the Const, not where the negative isn't!
it is not a right in any state, in our heritage from English law, nor
really anywhere civilized.
In this regard, the Right to Keep and Bear Arms is long recognizedYep, for the STATE MILITIAS to be maintained by the collective body politic, just as the COURTS keep ruling [returning the evidence you snipped away because it refutes all your silly blatant assertions:
by our laws and explicitly protected by the Constitution.
Since YOU wish to claim some hypothetical right, it's incumbent on YOU to show where YOU, specifically as an individual, HAVE such an enumerated and individualized right in unambiguous, overt, and specific language!
WHERE in the Constitution does it say that YOU, as an individual can have absolute rights to OWN or CARRY or USE any particular weapon, any time, any place, any context? In fact, where in the Const are GUNS even mentioned as specific objects that can be "had"?
The 2nd Amen, indeed the WHOLE Const is simply silent on
the matter of individuals owning firearms! It neither permits
NOR prohibits their possession and use! That's because the 2nd
Amen is simply a MILITIA Amendment that has no concern about
individuals owning or using guns independent of militia service!
THAT concern is left to the states, under the powers/rights
reserved to them under the 10th Amen.
All you have to do is read, oh, any of the several dozen
Appellate cases that refer to the handful of 2nd Amen SCotUS
cases to see that!
But you won't find ANY SCotUS case where the court emphatically
states that any individual has any absolute or fundamental right
to own any weapon he chooses:
In the last SCotUS case in which the 2nd Amen was specifically
addressed, some 40 years after Miller, U.S. Supreme Court LEWIS
v. UNITED STATES, 445 U.S. 55 (1980):
Section 1202 (a) (1) clearly meets that test. Congress, as its
expressed purpose in enacting Title VII reveals, 18 U.S.C. App.
1201, was concerned that the receipt and possession of a firearm
by a felon constitutes a threat, among other things, to the
continued and effective operation of the Government of the
United States. The legislative history of the gun control laws
discloses Congress' worry about the easy availability of
firearms, especially to those persons who pose a threat to
community peace.
[ Footnote 8 ] These legislative restrictions on the use of
firearms are neither based upon constitutionally suspect
criteria, nor do they trench upon any constitutionally protected
liberties. See United States v. Miller, 307 U.S. 174, 178 (1939)
(the Second Amendment guarantees no right to keep and bear a
firearm that does not have "some reasonable relationship to [445
U.S. 55, 66] the preservation or efficiency of a well regulated
militia")
and the Circuits have confirmed this:
HICKMAN v. BLOCK No. 94-55836. United States Court of Appeals,
Ninth Circuit.
Decided April 5, 1996.
We follow our sister circuits in holding that the Second
Amendment is a RIGHT held by the states, and does not protect
the possession of a weapon by a private citizen.
Consulting the text and history of the amendment, the Court
found that the right to keep and bear arms is meant solely to
protect the RIGHT OF THE STATES to keep and maintain armed
militia.
The Court's understanding follows a plain reading of the
Amendment's text. The Amendment's second clause declares that
the goal is to preserve the security of "a free state;" its
first clause establishes the premise that a "well-regulated
militia" is necessary to this end. Thus it is only in
furtherance of state security that "the right of the people
to keep and bear arms" is finally proclaimed.
LOVE v. PEPERSACK No. 94-1582. United States Court of Appeals,
Fourth Circuit.
Decided Feb. 3, 1995.
Citing law review articles, Love argues that she has an
individual federal constitutional right to "keep and bear" a
handgun, and Maryland may not infringe upon this right. She is
wrong on both counts. The Second Amendment does not apply to the
states. Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.
Ed. 615 (1886); United States v. Cruikshank, 92 U.S. 542, 23
L.Ed. 588 (p.124) (1876). Moreover, even as against federal
regulation, the amendment does not confer an absolute individual
right to bear any type of firearm. In 1939, the Supreme Court
held that the federal statute prohibiting possession of a
sawed-off shotgun was constitutional, because the defendant had
not shown that his possession of such a gun bore a "reasonable
relationship to the preservation or efficiency of a well
regulated militia." United States v. Miller, 307 U.S. 174, 178,
59 S.Ct. 816, 818, 83 L.Ed. 1206 (1939). Since then, the lower
federal courts have uniformly held that the Second Amendment
preserves a collective, rather than individual, right.
QUILICI v. VILLAGE OF MORTON GROVE
Nos. 82-1045, 82-1076 and 82-1132.
United States Court of Appeals, Seventh Circuit.
Decided Dec. 6, 1982. As Amended Dec. 10, 1982.
The second amendment provides that "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." U.S. Const. amend. II. Construing this language
according to its plain meaning, it seems clear that the right to
bear arms is inextricably connected to the preservation of a
militia.
Under the controlling authority of Miller we conclude that
the right to keep and bear handguns is not guaranteed by the
second amendment. Because the second amendment is not applicable
to Morton Grove and because possession of handguns by
individuals is not part of the right to keep and bear arms,
Ordinance No. 81-11 does not violate the second amendment.
UNITED STATES v. Francis J. WARIN.
No. 75-1734. United States Court of Appeals, Sixth Circuit.
Decided Feb. 4, 1976.
"Since the Second Amendment right "to keep and bear Arms"
applies only to the RIGHT OF THE STATE to maintain a militia and
not to the individual's right to bear arms, there can be no
serious claim to any express constitutional right of an
individual to possess a firearm...
"It would unduly extend this opinion to attempt to deal with
every argument made by defendant and amicus curiae, Second
Amendment Foundation, all of which are based on the erroneous
supposition that the Second Amendment is concerned with the
RIGHTS of individuals rather than THOSE OF THE STATES or that
defendant's automatic membership in the "sedentary militia" of
Ohio brings him within the reach of its guarantees."
UNITED STATES v. TOT.
No. 7961. Circuit Court of Appeals, Third Circuit.
Decided Oct. 28, 1942.
It is abundantly clear both from the discussions of this
amendment contemporaneous with its proposal and adoption and
those of learned writers since that this amendment, unlike
those providing for protection of free speech and freedom of
religion, was not adopted with individual rights in mind, but as
a protection for the STATES in the maintenance of their militia
organizations against possible encroachments by the federal
power.
---
There is NOTHING in the drafting and debating and passage of the
2nd Amen that speaks about "individual gun ownership"
independent of militia service! It's all about state versus
federal control and arming of the militia, and the virtues of
militias versus standing armies, since it's a MILITIA amendment
and NOT a GUN amendment!
Miller confirms this:
The SCotUS in Miller said the 2nd Amen must be viewed thusly:
"With obvious purpose to assure the continuation and render
possible the effectiveness of such forces [the well regulated
militia described in the previous paragraph] the declaration and
guarantee of the Second Amendment were made. It must be
interpreted and applied with that end in view."
And no comments on all this? No refutation?
Didn't think so. BZZZZZZZZT. But thanks for NOT playing!
Sheesh!
.
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