What exactly was my misrepresentation?buzz_knox
He took a quote so far out of context as to constitute an intentional misrepresentation.
What exactly was my misrepresentation?buzz_knox
He took a quote so far out of context as to constitute an intentional misrepresentation.
What exactly was my misrepresentation?
Madison was in favor of a standing army.
]Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government
--James Madison; Tuesday, January 29, 1788.
James Wilson believed in the existence of "the great natural right of self preservation" and he believed that right was recognized by the "right to bear arms" provision of the Pennsylvanian Constitution to be a collective right. However, he also believed the Pennsylvania provision established the right "to assemble people together in order to protect and defend." He said nothing about it establishing a right to bear arms as an individual to protect and defend.
More evidence that the militia men were not expected to provide their own arms.
Section 1628 of the Militia Bill of 1792 provided that after a citizen was notified of his enrollment in the militia, the citizen was to be provided with a good musket or fire-lock. The section contains nothing about the citizen being obligated to provide his own good musket or fire-lock
That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.
The Second Amendment does not support respondent’s claim of entitlement to firearms for self-defense.
A. The Language Of The Entire Amendment Is Naturally Read To Protect The Keeping And Bearing Of Arms Only In Service Of A Well-Regulated Militia.
1. Both clauses of the Second Amendment, read separately or together, establish the Amendment’s exclusively military purpose.
“A well regulated Militia, being necessary to the security of a free State, . . . ”
Unique in the Bill of Rights, the Second Amendment begins by stating the reason for its existence: to support a “well regulated Militia.” Militias are the state- and congressionally-regulated military forces described in the Militia Clauses (art. I, § 8, cls.15-16)."
Nevertheless, the evidence presented here is sufficient to support three historical conclusions: An interpretation of the Second Amendment as securing in part an individual right to keep arms was contemporaneous with the amendment's framing. That interpretation was recognized as authoritative early in the nineteenth century. Finally, the early American proponents of that interpretation transcended region, partisan affiliation, and any reasonable measure of plebeian consciousness. Lawyers, backwoodsmen, Federalists, and Democrats, they believed, like Mrs. Barrett's militiaman, that they had a right to keep arms.
I know Justice Thomas doesn't believe the establishment clause protects an individual right.I would say it novel for anyone to actually submit a brief on any one of the bill of rights to argue that it isn't an individual right of the people
Which state militia are you talking about and when did it take up arms?Phil
by what right did the militia take up arms before the ratification of the Second Amendment and bill of rights on December 15, 1791.
Which state militia are you talking about and when did it take up arms?Phil
and after the beginning of government under the Constitution on March 4, 1789?
Congress under the Constitution was granted power to arm the militia.Phil
...the militiamen called to service under the Constitution couldn't carry arms until the Bill of Rights
The collective right view of the Second Amendment isn't novel. It's been around since at least 1803.
The collective right view of the Second Amendment isn't novel. It's been around since at least 1803.
The modern formulation of the debate over the Second Amendment as an individual/collective rights dichotomy entered Federal law and scholarship when it was employed in a widely-cited Harvard Law Review article in 1915 by the Chief Justice of the Maine Supreme Court, Lucilius A. Emery. He noted that "the right guaranteed is not so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against the common enemy, foreign or domestic."
I suspect Article XVII of the Massachusetts Bill of Rights was "in the eye" of the legislators as they made the second clause of the Second Amendment. They lifted the the phrase "right to keep and bear arms" from it, knowing that when the phrase was construed according to the well established rule of legal construction regarding "subject matter", it would be understood that the right to keep and bear, as it did in the Massachusetts Constitution, was for "common defense", not "individual defense."RDak
If the 2nd Amendment only afforded a right to collectively form well regulated militias, there would be no need to add the phrase "the right of the people to keep and bear arms shall not be infringed".
All the framers would have to say is "A well regulated Militia, being necessary for the freedom of the State, the right of the well regulated Militias to keep and bear arms shall not be infringed".
It only appears that way to you because you don't know much about the way legal instruments were interpreted in 1789. You need to learn about the rules of legal interpretation as they existed in 1789.RDak
The "right of the people" phrase so clearly indicates an individual right (i.e.,to guard against tyranny and lawlessness) that it has always baffled me how, seemingly honest people, can twist it to mean a collective right only.
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 power shall always be held in an exact subordination to the civil authority, and be governed by it.
The founding fathers were Communists. The Massachusetts Constitution proves it.Seems to me some people favor the collective over the individual. I call them Communists. (Btw, this collective right theory is only a recent philosophy.)
That's not the issue. The issue is whether "the right of the states to arm their militias" interpretation is novel. It is not novel. Its been around since 1803.There was little, if anything, novel about Scalia's interpretation IMHO.
Read the Preamble to the Bill of Rights if you want to know what moved Congress to recommend them.Plus, as has also been stated, the BOR's address individual freedoms. To assume the 2nd Amendment strays from the major objective of the BOR's is novel IMHO. Absurdly novel IMHO.
It certainly seems that the great Saint George Tucker understood "the right of the people to keep and bear arms" to mean the right of "each state...to provide for organizing, arming, and disciplining it's... militia."
The right of the people to keep and bear arms shall not be infringed – this may be considered as the palladium of liberty. The right of self defense is the first law of nature. In most governments it has been the study of rulers to abridge this right with the narrowest limits. Where ever standing armies are kept up & the right of the people to bear arms is by any means or under any colour whatsoever prohibited, liberty, if not already annihilated is in danger of being so. – In England the people have been disarmed under the speciouspretext of preserving the game. By the alluring idea, the landed aristocracy have been brought to side with the Court in a measure evidently calculated to check the effect of any ferment which the measures of government may produce in the minds of the people. -- The Game laws are a consolation for the government, a rattle for the gentry, and a rack for the nation.
. 1 Blackstone, Commentaries 139.the natural right of resistance and self-preservation
The founding fathers were Communists.
some court decisions, etc., indicated the 2nd Amendment afforded an individual and collective right very early on.
The constitutional guaranty of a right to bear arms does not include weapons not usual or suitable for use in organized civilized warfare, such as dirks, bowie knives, sling shot, brass knuckles, etc., and the carrying of such weapons may be prohibited. Only persons of military capacity to bear arms in military organizations are within the spirit of the guaranty. Women, young boys, the blind, tramps, persons non compos mentis, or dissolute in habits, may be prohibited from carrying weapons.
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 the 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 effort of those who should conspire to overthrow the established institutions of the country, or subjugate their common liberties; (p.25)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 defense of the state, more congenial to civil liberty and republican government. And it is confidently believed that the people designed and expected to accomnplish 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 designed to operate as an immunity to those who should so keep or bear their arms as to injure or endanger the private rights of others, or in any manner prejudice the common interests of society.
The Court of Appeals of the State of Kentucky, in the case of Bliss v. The Commonwealth, 2 Littell, 90, and the argument of this case for the appellee, if I have not misapprehended their premises and reasoning, both assume that the right to keep and bear arms was adopted as well for the purpose of enabling individuals to defend and redress, by their own arms, injuries threatened or suffered in respect to their personal or private rights, as for the security of the State, and is not subject to any legal regulation, restriction or control whatever; and that, by virtue of it, every person in the community possesses a privilege or immunity, by virtue of which he may keep and bear arms of every description, at all times, in every place, and in any manner, according to his own free will or caprice.