Apellee's brief in Parker v. District of Columbia

[ctdonath]

Now how does all this militia stuff relate to Parker et al in particular?

By federal law, at least some of the defendants in Parker are defined in federal law as members of the US militia as able-bodied males aged 17-45. These can be "called up" at any time for militia duty, and are (thru historical precident) expected to show up with their own weapons which they are familiar with. Agreed?

Now, being "called up" to defend the nation is a big formal event - when you're talking lots of attackers and lots of defenders. Thing is, this is a nation "of the people", meaning that when the nation is being defended, the focus is not on protecting an elite government but on protecting the aggregate of individuals. That the total aggregate of all individual citizens of this country form this country is the grandest scale; the states on average are about 1/50th of that; each citizen is about 1/300,000,000th of that - and every citizen has an interest in contributing to the defense of every subset which s/he participates in, from whole federal nation to state right down to individual self.
If the nation is attacked, the governing body (POTUS and Congress) may call out the militia to defend that whole - practically speaking, that's every sane adult who is expected to be armed and know how to use their own weapon.
If a state is attacked, the governing body (governor and assembly) may call out the militia to defend that whole - practically speaking, that's every sane adult who is expected to be armed and know how to use their own weapon.
If an individual is attacked (and here's where we get to Parker), the governing body (the individual) may call out the militia (the individual's self) to defend that whole (the individual and dependents) - practically speaking, that's every sane adult who is expected to be armed and know how to use their own weapon.

See, Ms. Parker defending herself in her home is a subset of the United States Of America defending itself - there is no difference. To disarm her, or render her handgun inoperable, is to disarm part of the USA. You cannot protect a nation "of the people" without letting the individual persons protect themselves. Whether Ms. Parker is called on by herself to defend herself, or called on by George Bush & Congress to defend the nation, the fundamental and practical presumption is that Ms. Parker is responsible for arming herself, knowing how to use her own weapon, and how to operate within the defending group (be that group the US militia or just herself); that the government may have some expectation/duty to arm & train her is laudable, but so long as they neglect that duty (and even if they don't) they have no power (per "shall not be infringed") to forbid her any weapon, require her to have a weapon she cannot realistically use, or require her to render her weapon disfunctional - precisely because to disarm Ms. Parker, upstanding sane adult citizen of the USA, is to disarm and render helpless a fraction of the USA.

So, from that point of view:
Why are you so he11-bent on disarming the USA - one citizen at a time? Save a select few who are formally given weapons & training by the government, When those citizenes are called on to defend the nation, be it the whole country or 1/300,000,000th thereof, it is up to them to be self-armed!

 

[hugh damright]

If an individual is attacked (and here's where we get to Parker), the governing body (the individual) may call out the militia (the individual's self) to defend that whole (the individual and dependents) ... See, Ms. Parker defending herself in her home is a subset of the United States Of America defending itself - there is no difference. To disarm her, or render her handgun inoperable, is to disarm part of the USA. You cannot protect a nation "of the people" without letting the individual persons protect themselves.

I believe that there are important differences between the civil right to protect oneself and the political right to militia to defend a free State.

Virginians might all have the individual right to shoot burglars and to hunt and yet not be a free State. Even under King George, with British Troops here to keep us in check, Virginians had the right to shoot burglars and hunt, but we did not have free government. I believe that the object of the Second Amendment is free States, and militias to secure them ... I don't see how the object is the right to shoot burglars which we already had under King George ... and I don't see how the right to militia to secure free government and the individual right to shoot burglars are the same thing.

If we assume for the sake of discussion that Citizens of DC are members of a militia, and if we assume that the federal government needed to call forth the DC Militia for some reason ... would the people of DC say that they could not come because their guns are stored inoperable and the ammo stored separately? Would the people of DC say that they cannot come because they only have rifles and shotguns but no handguns? I think it might be argued that personal defense may require an operable/loaded gun, because a burglar might not wait five minutes while you get your gun ready, but I don't see how it can be argued that we have a militia duty which requires us to keep an operable/loaded gun because I think that if the US needs to call forth militia then they can wait five minutes ... I just don't see how the civil RKBA and the political RKBA have the same requirements.

 

[RealGun]

the political right to militia

I don't see how the right to militia to secure free government

Militia is not a verb.

 

[Ieyasu]

Why is it so many on this thread are pretending that the DC government is arguing for some limited individual right?

If you're including me as one of those, you're mistaken.

There are quotes above including the statute proposed by Jefferson and Madison, in which "bear arms" is clearly "carry" and, in the case of that particular proposal, differentiated from any military service by the express words of the proposal. You choose to believe that bear arms can only have a military connotation. Your continued insistence on arguing such an untenable position can only be considered as obstinance at this point.

Geez, the statute in question said bear a gun, not bear arms. Big difference. I would agree that bearing a gun or bearing an arm can refer to mere carrying and not necessarily within a military or fighting context. But, bear arms does appear to have been used as a legal term of art signifying military service or fighting.

They most specifically did not mean that the right to keep and bear arms was limited to service in a "select/organized militia."

Don't know whether the above was addressed to me as well. Just in case, as I've said before, I am not making the same claim. The Appellant's make that claim, but despite the fact I believe bearing arms referred to military service, as I've previously posted, I do not hold the same belief that the right to keep arms is restricted to active militia.

 

[Ieyasu]

Looking up words in a dictionary, especially the dictionary written by Daniel Webster himself who was present at the proceedings which created the USBOR, helps us understand exactly what was meant by those words at that time. As the definitions given (by someone who was there and a participant) state nothing about "militia"...

It states nothing about persons carrying arms either. You must have skipped, or ignored my post on the subject.

 

[Mr.V.]

...and a primary (but not necessarily exclusive) reason therefore is so when a militia is called up they are already armed

if you can prove the statement in bold, I'd be happy. You'd solve the problem of the purpose clause. But since you state it as a postulate while the apellees present a well formed argument to the contrary based on previous Supreme court precident, I'm still sad.

 

[Mr.V.]

If the nation is attacked, the governing body (POTUS and Congress) may call out the militia to defend that whole***If a state is attacked, the governing body (governor and assembly) may call out the militia to defend that whole***If an individual is attacked***the governing body (the individual) may call out the militia (the individual's self) to defend that whole (the individual and dependents)

First of all the "People of the United States" are not a governing body but instead we elect a governing body.

Second of all you have to be very careful. Your argument is involving the militia and the second amendment clearly states in its purpose clause "A well-regulated militia being necessary to the security of a free state..."

We cannot ignore that the militia was meant to be well-regulated. Well-regulated implies that SOMETHING is regulating that militia. We can plainly read in Article I section 8 of the US Constitution that Congress has quite a bit of control over regulating this militia. Article II section 2 states that the president is the supreme commander of the militia. Congress exercised its control over the militia in the two militia acts of 1792

In other words, you have an uphill battle to show evidence that Ms. Parker is considered to be the militia of the United States of America in toto and this Militia of Ms. Parker is not bound by the regulations of Congress and of her state, allowing her to determine that a mugging, burglary etc committed against her, is, in fact, an attack against the sovereign nation of the United States to which she can respond to by calling herself into action since she requires no act of congress/state/or presidential regulation on the matter.

Until you address these further, it's difficult to accept your statement that "...Ms. Parker defending herself in her home is a subset of the United States Of America defending itself - there is no difference."

EDIT-- for the record I'm far from hell-bent on disarming citizens. I think it would be best if every law-abiding citizen knew how to safely operate a firearm and other arms for that matter. But the only way that's going to happen is if we can find a solid constitutional argument that even a Supreme Court justice appointed by Ted Kennedy would have a hard time arguing with.

 

[Ieyasu]

Mr. V. wrote:

Quote:
Originally Posted by ctdonath
...and a primary (but not necessarily exclusive) reason therefore is so when a militia is called up they are already armed

if you can prove the statement in bold, I'd be happy. You'd solve the problem of the purpose clause. But since you state it as a postulate while the apellees present a well formed argument to the contrary based on previous Supreme court precident, I'm still sad.

I certainly cannot do that based on Supreme Court precedent, but would quotes from the Founders and their contemporaries help?

The following quote is from a previous post, quoting Alexander Hamilton, describing how the militia acts as a check against both the state and federal government. From this quote, I believe it'd be reasonable to infer that the people, not just the active militia would be entitled to keep arms, since the states or the federal government had the power to maintain a select militia at the expense of a general militia.

T]he people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress.

Thus the militia is the ultimate check against a state and the national government. (Of course, unless fighting an usurpation, militias are controlled/governed by a state). So regardless of who supplies the militia arms, it's the people who should still have the option, if they so choose, of keeping arms.

And there is this quote from William Rawle (1829)(jurist, constitutional commentator, and was nonminated by George Washington to be the nation's first attorney general, but he declined):

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both

And how about this quote from founder Samuel Nasson, an Anti-federalist representative to the MA ratification convention?

I find that Amendments are once again on the Carpet. I hope that such may take place as will be for the Best Interest of the whole[.] A Bill of rights well secured that we the people may know how far we may Proceade in Every Department[,] then their [sic] will be no Dispute between the people and rulers[.] n that may be secured the right to keep arms for Common and Extraordinary Occations such as to secure ourselves against the wild Beast and also to amuse us by fowling and for our Defence against a Common Enemy[.] [Y]ou know to learn the Use of arms is all that can Save us from a forighn foe that may attempt to subdue us[,] for if we keep up the Use of arms and become well acquainted with them we Shall allway be able to look them in the face that arise up against us[,] for it is impossible to Support a Standing armey large Enough to Guard our Lengthy Sea Coast[.]

Note that Nasson reads keep (as opposed to bear), as a personal right, unconnected with militia service.

And, although far removed from the Founding, Thomas Cooley (Michigan Supreme Court Justice who was probably the leading constitutional commentator of the late 1800s, and in 1898 wrote Principles of Constitutional Law), in part while commenting on the 2A wrote:

The Right is General. -- It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent... The meaning of the provision, undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose, but this enables the government to have a well regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.

 

[Ieyasu]

Mr. V.,

I agree with you -- the Appellant's make good use of the Miller case. Although they do misrepresent lower court precedent a tad. For example the first circuit court to analyze Miller interpreted it the same way as it's presented in the Appellant's brief. However, it did not feel "that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases" because it would "in effect hold that the limitation of the Second Amendment is absolute." (Cases v. U.S., 131 F.2d 916 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943).)

Unfortunately Cases then proceeded to make-up their own rules. However, most anti's (disingenuously, in my opinion) cite Cases as support for their interpretation of Miller.

I don't want to argue Miller here, but I do believe the opinion was poorly written, perhaps on purpose (by arguably one of the worst Supreme Court justiices), and I'm not sure all 8 justices who signed it, understood exactly what they were signing. For example, many years later, Justice Hugo Black (one of the Miller justices ), commenting on the Second Amendment said:

Although the Supreme Court has held this Amendment to include only arms necessary to a well-regulated militia, as so construed, its prohibition is absolute. (Black, Hugo, The Bill of Rights, New York University Law Review, Vol. 35, April 1960.)

Pretty radical, eh?

 

[RealGun]

I believe bearing arms referred to military service - Ieyasu

If you construct that argument and really buy it, ignoring a lot of the context in which the 2A was written, then if the militia as known in colonial days should exist only in the abstract, what we see today, it is an easy step to withdraw government interest in gun ownership. You have completely written off that a free state may need to be "free" from itself under tyrannical rule, a right guaranteed to The People, the body served by the Constitution.

 

[Ieyasu]

RealGun, you're joking right? Go back, and read my previous posts. Yeah, it's a long thread, but too bad. I'm not going to repeat a bunch of evidence

ignoring a lot of the context in which the 2A was written,

I supplied a lot of context with quotes from those who voted on the 2A.

Go back and read my posts. If you have an intelligent rebuttal, then please, by all means fireaway.

You have completely written off that a free state may need to be "free" from itself under tyrannical rule, a right guaranteed to The People, the body served by the Constitution.

You are wrong. Sorry, for being rude, but this gets tiring. Somebody takes one item out of context and ignores the rest. *SIGH*

 

[Al Norris]

Just a small point, Ieyasu. Thomas Cooley died in 1898. The General Principles of Constitutional Law was first published in 1880.

PREFACE.​

THE manual which follows has been prepared for the use of students in law schools and other institutions of learning. The design has been to present succinctly the general principles of constitutional law, whether they pertain to the federal system, or to the state system, or to both. Formerly, the structure of the federal constitutional government was so distinct from that of the States, that each might usefully be examined and discussed apart from the other; but the points of contact and dependence have been so largely increased by the recent amendments to the federal Constitution that a different course is now deemed advisable. Some general principles of constitutional law, which formerly were left exclusively to state protection, are now brought within the purview of the federal power, and any useful presentation of them must show the part they take in federal as well as state government. An attempt has been made to do this in the following pages.

The reader will soon discover that mere theories have received very little attention, and that the principles stated are those which have been settled, judicially or otherwise, in the practical working of the government.

THOMAS M. COOLEY.
UNIVERSITY OF MICHIGAN, ANN ARBOR, March, 1880.​

As stated in the preface, Cooley only states of the Second Amendment what was settled law of that time. It is therefore brief, as what was regarded the right was also brief. Hence the entire exposition of Cooley on this right should be read in full and not merely the largest paragraph:

The Constitution. -- By the Second Amendment to the Constitution it is declared 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."

The amendment, like most other provisions in the Constitution, has a history. It was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people, and as a pledge of the new rulers that this tyrannical action should cease. The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation.

The Right is General. -- It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.

Standing Army. -- A further purpose of this amendment is, to preclude any necessity or reasonable excuse for keeping up a standing army. A standing army is condemned by the traditions and sentiments of the people, as being as dangerous to the liberties of the people as the general preparation of the people for the defence of their institutions with arms is preservative of them.

What Arms may be kept. -- The arms intended by the Constitution are such as are suitable for the general defence of the community against invasion or oppression, and the secret carrying of those suited merely to deadly individual encounters may be prohibited.

The opinion in the Miller case, in light of the foregoing, breaks no new ground nor imposes no new requirements or restrictions, other arguments about Miller, aside.

 

[RealGun]

Go back and read my posts. If you have an intelligent rebuttal, then please, by all means fireaway.

I have read a lot of it but actually have only limited interest in your obfuscation. It is difficult to tell whether you are playing the devil's advocate or really believe that stuff. I haven't taken any of it very seriously, but I do appreciate the importance of understanding anti-gun arguments.

 

[beerslurpy]

There is a fine line between devils advocate and trolling. That being said, I gave up on this thread several pages ago. Thanks for posting the link to the rebuttal though. Good reading and it's encouraging to see that they covered all the bases so thoroughly.

 

[Ieyasu]

Just a small point, Ieyasu. Thomas Cooley died in 1898. The General Principles of Constitutional Law was first published in 1880.

Thanks for the correction. (The passage I cited was from an edition published in 1898).

 

[ctdonath]

Convoluted obfuscatory arguments aside:

This nation was created by a militia called up out of a largely self-armed populace, using for defense & independence those weapons they already owned for purposes of self-defense and hunting. The 2nd Amendment recognizes and protects the right of individuals, thru aggregation, to again form and act as a militia. There is NOTHING indicating that the Founding Fathers would have tolerated the notion of the government prohibiting sane adult individuals from using their Constitutionally protected weapons for any reasonable purpose, to wit self-defense and hunting and recreation, outside of militia use. I dare say that any who entertain a notion of a RKBA without that right including such reasonable uses is of a twisted mindset or oppressive intent which cannot be reasoned with, and should their abomination of intended law reach far enough they will invoke the very purpose of the 2nd Amendment.

On two occasions, I have been asked [by members of Parliament], 'Pray, Mr. Babbage, if you put into the machine wrong figures, will the right answers come out?' I am not able to rightly apprehend the kind of confusion of ideas that could provoke such a question.
- Charles Babbage (1791-1871)

 

[Ieyasu]

This nation was created by a militia called up out of a largely self-armed populace, using for defense & independence those weapons they already owned for purposes of self-defense and hunting. The 2nd Amendment recognizes and protects the right of individuals, thru aggregation, to again form and act as a militia.

Very well stated. In case you or others have failed to realize, claiming that bearing arms was probably a legal term of art for military service or fighting, still renders what is quoted above to be true (the right to keep).

Convoluted obfuscatory arguments aside

The reaction I received from some (not all) posters on this thread was expected, but still discouraging.

Most (again not all) attempts at refutting what I posted were pathetic.

For the dimwits who think that arguing bearing arms was probably synonymous with military service is tantamount to arguing an anti-individual right, there are Standard Model scholars who also believe bearing arms probably meant rendering military service.

 

[RealGun]

For the dimwits - Ieyasu

Now, I would call that trolling.

who think that arguing bearing arms was probably synonymous with military service is tantamount to arguing an anti-individual right, there are Standard Model scholars who also believe bearing arms probably meant rendering military service.

Perhaps with your superior wit you could rewrite this into a coherent sentence.

 

[beerslurpy]

Civil Procedure is making my brain numb, so I decided to take another swing at this.

1) If a right only arises when you are acting under an obligation to exercise that right, how can it be said to be a right? A lawfully imposed obligation grants license to carry out that obligation, so there would be no need to separately grant it. Unless of course the right is independent of such an obligation. 5 long pages and still no answer to this one.

2) If the right is only connected to militia duty of some sort, why was the right universally understood, at the time of the Founders, to apply to all people, regardless of whether they were eligible for militia duty? Priests, women, old men and freed black slaves all possessed and bore personal arms in a manner that could not possibly have been related to military service.

 

[Ieyasu]

Quote:
For the dimwits who think that arguing bearing arms was probably synonymous with military service is tantamount to arguing an anti-individual right, there are Standard Model scholars who also believe bearing arms probably meant rendering military service.

Perhaps with your superior wit you could rewrite this into a coherent sentence.

Okay RealGun...
I've made several posts stating that bearing arms (as used in the 2A) probably meant rendering military service, or fighting.

As a result some posters on this thread reacted as if I were stating the entire 2A was therefore a collective right or a right restricted to members in an active militia, despite the fact that I said this wasn't the case (and posted evidence to the contrary). Thus the designation of dimwit to those who continued to either refer to my posts out of context or thought I was trolling. (I think some of my accusers are better suited to that accusation.)

And finally, there are Standard Modelers who subscribe to the theory that bearing arms did indeed mean military service. If you're not familiar with the term Standard Model then see: http://www.guncite.com/journals/reycrit.html .

Is that better RealGun?

 

[Ieyasu]

1) If a right only arises when you are acting under an obligation to exercise that right, how can it be said to be a right? A lawfully imposed obligation grants license to carry out that obligation, so there would be no need to separately grant it. Unless of course the right is independent of such an obligation. 5 long pages and still no answer to this one.

Beerslurpy,,. I did indeed answer the above, and thus, part of my frustration with this thread -- the constant repetition. Although I realize it's a long thread, with several different sub-topics, so perhaps you missed it.

As I stated previously, one can volunteer for militia duty. Also as ctdonath, above said, "The 2nd Amendment recognizes and protects the right of individuals, thru aggregation, to again form and act as a militia." The people have the right to form a militia and bear arms in it. I don't know how else I can make that any clearer. Bearing arms in this manner is clearly a right. If you disagree, then I guess we'll just have to agree to disagree, but you'd also be in disagreement with what the founders wrote as well.

2) If the right is only connected to militia duty of some sort, why was the right universally understood, at the time of the Founders, to apply to all people, regardless of whether they were eligible for militia duty? Priests, women, old men and freed black slaves all possessed and bore personal arms in a manner that could not possibly have been related to military service.

You're using the term bearing arms in a non-military sense. Except for Samuel Bryan's dissent of the PA minority, can you provide quotes where bearing arms prior to 1812 or thereabouts referred to the mere carrying of arms, or hunting?

For example St. George "Tucker's use of the term 'bear arms' reflected the dominant understanding of his day, which clearly distinguished between bearing arms and bearing a gun. This difference emerged clearly in Tucker's treatment of the rights of African Americans. Tucker discussed the legal status of 'free negroes and mulattoes,' who had been legally prohibted from 'serving in the milita, except as drummers or pioneers.' This prohibition had been lifted and Tucker noted that free blacks were later 'enrolled in the lists of those that bear arms.' Tucker's discussion of the ambiguous status of free blacks provides additional evidence that the term 'bear arms' was a legal term of art that clearly implied the use of arms in a public capacity, not a private one. Indeed, he noted that under stae law 'all but house-keepers, and persons residing upon the frontiers are prohibited from keeping or carrying any gun, powder, shot, club, or other weapon offensive or defensive.' Once again, Tucker's usage merits closer scrutiny. Tucker did not describe the nonmilitary use of of weapons by blacks on the frontier as bearing arms, he described such an activity as carrying a gun. There was an important legal difference between bearing a gun and bearing arms. In his own proposal for emancipation, Tucker recommended prohibiting any 'negroe or mulattoe' from 'keeping, or bearing arms.' According to Tucker's analysis, blacks would be prohibited from keeping arms in their home, or from appearing at muster and being issued arms they might bear as part of the militia."

You can see Tucker's full comments here: http://press-pubs.uchicago.edu/founders/documents/v1ch15s56.html

I realize one example is not comprehensive, but it does serve as an example. I provided many others previously where the term could only have refered to military service or fighting (with arms).

 

[mack]

One point, while it is important that the legal arguments of gun control advocates be answered and that the individual right to keep and bear arms be defended and advocated in the courts, I do not believe that the arguments themselves as made in the courts have much if any resonance with the vast majority of the public. The actual decisions of the courts will and do have resonance with the public, but the legal arguments behind them will not persuade either the committed or the uncommitted. Print out the briefs and/or this thread and give it/them to any average individual and they will have little to no impact on that individuals opinion on the second amendment.

If you want to persuade the undecided on the second amendment, the best ways to do so are to: take them shooting and discuss firearms in the context of the right to personal self-defense, while giving them concrete real life examples.

Secondly, the general predisposition of the government is to increase its power and control, whether that be for good or ill. Therefore, the government and courts in general would be predisposed to limit or eradicate the purpose and meaning of the second amendment if they felt they could get away with it.

The primary restraint on their doing so is the belief on the part of the majority of americans that they have an individual right to keep and bear arms and that that right is guaranteed by the second amendment. Look at the history of Federal and State court decisions over the years - they tend to follow instead of initiate changes in public opinion.

I don't bring this up to detract from the focus of this thread - but answering gun control advocates legal arguments are not crucial to winning the public debate on gun control and the right to keep and bear arms. And, it is in the arena of public opinion where ultimately the winner or loser will be determined. In some ways it is sad, that the free exercise of god given inalienable rights are hostage to the whims of public opinion.

 

[hugh damright]

1) If a right only arises when you are acting under an obligation to exercise that right, how can it be said to be a right?

I don't think it's a case of "a right only arises when", I think that it is the federal protection of the right which only arises as an aspect of the federal militia power.

2) If the right is only connected to militia duty of some sort, why was the right universally understood, at the time of the Founders, to apply to all people, regardless of whether they were eligible for militia duty?

Again, it's not that the right is connected only to miltia duty, but the federal protection of the right is connected only to militia duty.

 

[RealGun]

You're using the term bearing arms in a non-military sense. Except for Samuel Bryan's dissent of the PA minority, can you provide quotes where bearing arms prior to 1812 or thereabouts referred to the mere carrying of arms, or hunting?

You keep insisting that "bearing arms" must be a term of art, now requiring it to be quoted to the contrary, in effect denying that it might just be plain English.

 

[Ieyasu]

You keep insisting that "bearing arms" must be a term of art, now requiring it to be quoted to the contrary, in effect denying that it might just be plain English.

"Plain English?"

The Oxford English Dictionary on Historical Principles... declares that "to bear arms" is a figurative usage meaning "to serve as a soldier, do military service, fight"

I'll be back later tonight responding to one of the posts above (some good points made) and in further response to Beerslurpy, I'll add a link explaining that some rights involved duties.