So I'm taking this class at USF...


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.45FMJoe
September 21, 2004, 12:49 AM
...American Political Tradition and so far I absolutely love this class and professor. The professor is hilarious and absolutely impossible to peg as either a dem or repub.

Well today we got discussing the 2nd Amendment and I really got into a great discussion with the professor. Now mind you the professor has been teaching this course for 10 years now and he actually created the course. USF is the only FL state school with the course, obviously. He is very knowledgeable about anything concearning American political tradition and can tell you anything you want to know about the framers of the Constitution, etc.

So, he says that the 2nd amendment has two parts a dependant clause and an independant clause. Simple grammer he proclaims. "A well-regulated Militia, being necessary for the security of a free State" is the INDEPENDANT clause and "the right of the people to keep and bear Arms, shall not be infringed" is the DEPENDANT clause. He said the pro-gun people are right for the wrong reasons and the anti-gun people are wrong for the wrong reason.

So he says that the right to bear arms applys to Militias which are state funded and run. He says that Militias have gone the wayside. I brought up Tench Coxe's "Who are the Militia?" quote. I said wasn't the original Militia the volunteer Minutemen who were mere farmers and other ordinary citizens who took up arms against the Redcoats? He said that back in those days Militias were much more formal. They had elected officers and such. They were also at the state level. For example the 69th Irish volunteer militia in New York..the "Fighting Irish." He said also in some areas Militia membership was mandatory.

He said the right guaranteed by the amendment was a state's right to keep a standing militia. His reasoning is that some Anti-Federalists argued during the Constitutional Convention that a standing Army, formed by the Constitution, was tyranny. It doesn't matter if it was full of selfless Pat Tillmans, a standing Army is tyranny. Thus, the 2nd Amendment was to assuage to Anti-Federalist's concearns of an Army.

So I asked, is that not a direct contradiction to the Declaration of Independance? The first phrase of the Declaration reads "We the People." Patrick Henry immediately dismissed the Declaration after reading those words, there was no "We the People." There were Virginians, Pennsylvanians, etc. So the Second Amendment, as worded, was intended to silence the Anti-Federalist worries about a strong central Government that bypasses State's rights by garanteeing the State's can arm themselves against the Federal Military. He agreed and told me that is exactly what it is. He said essentially the National Gaurd is the current Militia. I said but the National Gaurd was created over 100 years later in 1903 by an act of Congress. He immediately agreed.

I asked, you would agree that the other 9 amendments all pertain to the people's rights, not state's rights, yes? He agreed. So I asked, why is the 2nd different? He said the reason why is that back then nobody would have ever thought it necessary to guarantee the individual's right to private firearm ownership. If a bear was attacking your livestock you needed a gun to shoot it with. You needed a rifle to shoot deer to feed your family with, etc.

I asked, so you are saying that nobody in those days would have thought there would be a psycho democratic Senator named Feinstein 200 years later trying to take away our guns? He said that's exactly why. He said them putting a clause guaranteeing an individual's right to private firearm ownership would be like writing an amendment guaranteeing you the right to breathe air.

He also said that during the Constitutional conventions there were many amenments written about the right to bear arms. He told me of a group in PA that had an amendment formulated that listed all sorts of reason why the right to bear arms shall not be infringed but I cannot remember the name of the group to research it. I did find online from a draft of one of the PA constitutions before the ratification of the new Constitution that reads "That the people have a right to bear arms for the defense of themselves and the state."

so I did more research. On June 25, 1788, the Virginia Ratifying convention appointed a committee to draw up a bill of rights. From George Mason's original draft which is available in the Library of Congress:

"17. That the People have a Right to keep and to bear Arms; that a well regulated Militia, composed of the Body of the People, trained to arms, is the proper, natural, and safe Defence of a free State; that Standing Armies in Time of Peace are dangerous to Liberty, and therefore ought to be avoided as far as the Circumstances and Protection of the Community will admit; and that in all Cases, the military should be under strict Subordination to, and governed by the Civil Power. "

New York and North Carolina's ratifying conventions practically mirror Mason's writings and James Madison's final draft of te Bill of Rights is almost verbatim to Mason's.


So, yeah... I may have been wrong all these years about what the 2nd Amendment actually guarantees. However, it is important to take into consideration the original intent of the framers and they are indeed on our side.

I told him I read an article by an english professor that debunks his theory of the dependant/independant clause and I was going to do more research for next class so I could again engage in discussion. He smiled from ear to ear and told me he would love for me to do that. I have found the article of the english professor, Copperud and am fevereshly researching the topic for class on Wed. I also plan to ask him why he continually goes to hunting as a reason for private firearm ownership and not protection. I'm really excited, I've never had this much fun in a college class before and it really helps having such an awesome professor who is so conducive to learning...

Sorry this was so long but since this is the legal and political section, this is a gun board and we do debate the 2nd amendment a lot I figured it was worth typing!

Please join in the discussion but don't flame me if you disagree! :)

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Muzzleflash
September 21, 2004, 02:14 AM
*adds USF to list of colleges for consideration*

Don Gwinn
September 21, 2004, 02:41 AM
That sounds like it was a fascinating discussion, well worth being in or listening to. . . . but your prof is wrong on a couple of the details. Sorry. :p

No way can you torture the meaning of "independent clause" to include something like "A well-regulated Militia, being necessary for the security of a free State," unless you can explain how that clause can stand alone as a sentence with nothing added or removed. Can you? By definition, that's what an independent clause is. In contrast, I could write the sentence "The right of the people to keep and bear arms shall not be infringed."
Its meaning would be clear and it would be grammatically correct. Nothing would have to be added or subtracted. Thus, by definition, it is NOT dependent.

Ask your prof about this. If he's as rigorous as he sounds, he'll think it over and agree.

It's also important to distinguish between the practical and the legal. Practically speaking, militias have fallen by the wayside, that's true. But legally, there's a much more recent and compelling cite than Tench Coxe--the U.S. Code. It states that every male between the ages of 18 and 45 is by default a member of the "unorganized militia" which it distinguishes from the "organized militia" of the National Guard. You might notice that the Constitution does not mention that the militia in question must be legally defined as "the organized militia" but only that it should ideally be well-regulated. It also does not make the guarantee of an RKBA contingent on such "regulation." Just because the militia is not "well-regulated," in other words, in no way lessens the authority of the independent clause. It is independent. It stands on its own as a clear and simple command.


His comments on the differences in mindsets and initial assumptions are good, though. People always want everyone else to fit in the same box.

MP5
September 21, 2004, 07:25 AM
The first part of the sentence is dependent, lacking a main verb and unable to stand on its own as a complete sentence.

Btw, for further info related to your discussion, check out http://www.guncite.com/

Hawkmoon
September 21, 2004, 09:42 AM
Salient point is the one you already brought up: your prof ackowledges that inthe other articles of the Bill of Rights "the People" refers to the People, but he wants to claim that in the 2nd Amendment "the People" refers to the states? I submit that he cannot have it both ways. The Bill of Rights was never about states rights, it was always and completely about declaring individual rights.

You might also research the state constitutions of ALL the original 13 states. Some of their constitutions are more explicit regarding the RKBA, and generally were written about the same time as the BOR and by the same people who participated in the Constitutional Convention.

I would further submit that a mandatory state-funded state militia to the Founding Fathers would be just as much anathema as a standing army on the national level. The founders were against standing armies -- period. If the state controlled the militia and the weapons thereof, who would keep the state government in check? I think your prof may be well-intended, but I think he needs to do a bit more research and thinking.

Jim March
September 21, 2004, 02:07 PM
OK. Now REALLY freak him out.

Ask how the 14th Amendment altered the 2nd.

Hints: the 14th was ratified in 1868, and written by Ohio Republican and Abolishionist John Bingham. Bingham very clearly SAID he was doing it to ensure a black right to arms to defend them from the proto-Klan and overturn state laws disarming blacks.

Right, rather than re-type stuff, you need to read this:

http://www.equalccw.com/practicalrace.html

To get a full understanding of the argument, you need to find a book by Yale law professor (and liberal!) Akhil Reed Amar titled "The Bill Of Rights" (1998).

The short form:

1) The Dred Scott decision defined the "privileges and immunities of US citizenship" exhaustively as "the traditional rights of free Englishmen, incl. the Bill Of Rights, including the 2nd Amendment". And then said blacks don't have those rights.

2) The 14th overturned Dred Scott, making blacks "citizens", preventing states from abusing their "privileges and immunities".

3) At that time, blacks didn't yet have political rights. They had civil rights, same as a white woman, but no voting, no militia duty, no jury rights. So the 14th "decoupled" the 2nd from being a "political right" to being a "human civil right" to defense against criminals and rogue state agents.

4) The guns of 1868 were a whole 'nuther ballpark from 1792. The North had fielded entire regiments armed with 15shot repeating rifles; the Gatling Gun had been invented in 1862 and successfully used prior to 1868. The Mormons had invented the snubby revolver; S&W had the through-bored revolver patent until 1872, at which point everybody knew there was going to be big changes. Point is, "assault rifles' and serious personal defense weapons were common and at prices a Freedman could afford - Colt's percussion revolver patents had run out and copies were common as fleas.

So a question to shake that professor up:

"Sir, didn't John Bingham specifically mention in speeches supporting his 14th Amendment that he wanted to preserve a black right to arms for defense against the early Klan and rogue southern "state militias"? And since blacks didn't get the vote or other political rights until the 15th Amendment, doesn't that mean that the 14th converted a "political right of militia duty" into a "civil right to personal self defense", and render this whole "militia discussion" moot?

:D

mack
September 21, 2004, 02:33 PM
Good points by previous posters - so I won't repeat them. Might tell your Prof. that he would have failed English if he thinks that the first clause is independent and the second dependent, as has been pointed out. One way to get at the true meaning is also to look at an analogus sentence such as:

A well educated electorate being necessary to the security of a free state, the right of the people to keep and read books shall not be infringed.

Now if the amendment was so worded, does anyone seriously think that it would be open to such tortured reinterpetations as:

the amendment only allows people who are registered voters to have or to read books - or -

the amendment only protects the state's power to provide books and public education - or -

the amendment only protects the keeping and reading of books and not magazines or newspapers - or -

the amendment only provides that those people in state schools may read and keep those books provided or approved by the state.


If there was an amendment written as above you could bet it would be understood to protect the right of the people to keep and read all written material and electronic media.

Lastly, the why did the founders and framers always use the term "powers" when referring to constitiutional protections for the states and why did they always use the term "the people" when referring to individual rights - except in the case of the 2nd amendment - why is the 2nd amendment judged under a different set of standards and definitions than the rest of the Constitution and the Bill of Rights? Hmmmm, could it be that if the 2nd was interpeted as it was written and as it was intended by the framers that it does guarantee an individual right to keep and bear arms.


Keep up with your research and educate your professor on the 2nd amendment - maybe he'll even thank you.

.45FMJoe
September 21, 2004, 08:27 PM
C'mon people, 278 views and only 6 responses?


Jim - Absolutely outstanding point and I am immediately researching this topic to present to him. :)


Everyone else - great input!

bigjim
September 21, 2004, 08:56 PM
You absolutley must bring this prof to the forum.

Waitone
September 21, 2004, 10:27 PM
Yea, get him to sign up. It will be a blast!

Jim March
September 21, 2004, 11:07 PM
.45FMJoe: the 14th was also intended to overturn the "black codes" that sprung up across the south...all of which had black-specific disarmament clauses.

Bingham and company didn't just say they were out to overturn the black codes, they said they were after (among other elements) the disarmament clauses - specifically.

Again: while the blacks still didn't have political rights.

Ieyasu
September 21, 2004, 11:16 PM
This post is probably too late but here goes...

He said the right guaranteed by the amendment was a state's right to keep a standing militia.
He said the reason why is that back then nobody would have ever thought it necessary to guarantee the individual's right to private firearm ownership.

Please, please, ask him why 3 jurists who were CONTEMPORARIES of the Founders (and wrote consitutional commentaries), UNAMBIGUOUSLY describe the 2nd Amendment as protecting an individual right to arms without the necessity of belonging to a militia. (There is no contrary evidence.) See http://guncite.com/gc2ndpur.html. All of the sophistry, incorrect analysis of the Founding period is melted by their commentaries. An individual right was preserved for a collective purpose. NO OTHER MODEL FITS ALL OF THE SURVIVING EVIDENCE.

There is no refutation.

Forget that Copperud crap. For the life of me, I don't understand why people will bring his analysis up and fail to mention Tucker, Rawle, and Story. *Sigh* Not only is Copperud not a Constitutional authority, he botches the meaning of "well-regulated."

Bud Wiser
September 21, 2004, 11:56 PM
.45FMJoe:

Warning! Danger Will Robinson, Danger!

As soon as you begin making your points, thanks to our board members' vast knowledge of the 2nd, your Professor will turn on you like the Anti-Gunner in Sheep's Clothing that he is!

And as a previous poster has so keenly pointed out , use the "Right of the People to Keep & Read Books" Tactic on the ol' Prof and sit back and watch him Waffle & Fudge & try to twist words & deny the meaning of both English Grammer & Reality....:scrutiny:

Ieyasu
September 22, 2004, 12:17 AM
.45FMJoe,

At this point don't bother to get involved with 2nd Amendment grammar. Learn your history first. All you need is to throw the aforementioned jurists at him. If you get into that grammar stuff he could take you where you won't be able to defend yourself. Same with the 14th Amendment. Jim March makes some valid points, but you'll lose that argument as well if your prof is well-versed in 14th Amendment jurisprudence. He'll kill ya.

You don't have much time, take small bites and master the 2nd first!

Col. Mustard
September 22, 2004, 12:20 AM
Another, more contemporaneous (although grammatically less strained), example of the sentence structure of the Second Amendment appears in Article I, Section 8 of the Constitution.

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries

I think no one will argue that patents and copyrights are only granted to works that "promote the progress of science and useful arts."

Ieyasu
September 22, 2004, 12:44 AM
I think no one will argue that patents and copyrights are only granted to works that "promote the progress of science and useful arts."

That's exactly why .45MFJoe should stay away from a discussion of the grammar. He doesn't have the time to study it, and it isn't necessary. This passage contradicts what you're claiming:

"Only the writings and discoveries of authors and inventors may be protected, and then only to the end of promoting science and the useful arts." (http://caselaw.lp.findlaw.com/data/constitution/article01/39.html)

However, a recent Supreme Court decision may have nibbled on the edges of that claim. (I don't have time to look it up now.) But, regardless, this is why .45MFJoe should stay away from grammar discussions. He doesn't have the time or expertise to get into that kind of argument. His teacher could snow him. He should choose areas that are virtually impervious to attack and are easier to defend. Again, especially on such short notice.

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