Individual vs. Militia Rights & Thomas Jefferson

[wacki]

Thomas Jefferson once penned a law which was proposed by Madison to preserve deer populations:

"shall bear a gun out of his inclosed ground unless whilst performing military duty."

A lawyer friend of mine brought this up as proof that Madison believed in different rights for the militia and the individual. It would appear that Jefferson did as well. I'm curious as to whether or not the members of this forum believe citizens in the militia deserve more rights then those that aren't actively in the militia.

I can see all hunting and numerous safety laws being revoked for militia members in times of rebellion. Anything to aid logistical problems... By safety I mean it would be ok for a militia member to carry an m60 down a street during wartime conditions that required an active militia. However, I do not think that a non-militia civilian should be able to walk down the streets of NY with 800 rounds and a full auto m60 cocked and ready to go during times of peace.

 

[TargetTerror]

Do you have a source for this alleged law, other than your friend?

 

[XD Fan]

Source was my first question too. Never heard of that one. Doesn't mean it isn't real (There is a shocker: I am not all-knowing.), but it seems like that one would have come up.

 

[canopy2k]

I'm having trouble locating this, but maybe someone can help. When anyone takes just a short section of a statement and quotes only that segment, one MUST question why. Generally, it is because the full statement either does not support the position presented, OR completely refutes it. In this case, it is the latter.

To the best of my recollection (I wrote a paper on Gun Control for a Thesis Paper) the FULL statement refers to someone who has been tried and convicted of poaching. What falls between the quotation marks below is NOT exact, but IIRC pretty much fits the theme of the entire statement. Also, I'm pretty sure this was from Jefferson Davis, not Thomas Jefferson.

IE: "A man who has been tried and convicted of illegally harvesting animals may not bear a gun off of his own property, unless he is performing militia duties."

IOW, this was a punishment for a criminal. Note that Davis did not suggest taking away a man's firearms, only restricting him from carrying them in public. Which, if you notice, really shoots your lawyer friend in the foot. This statement from Davis would imply that it was normal and understood that all men had the right to bear firearms outside their own property, unless they were convicted criminals.

c2k

 

[wacki]

That to "bear" arms means simply to carry them was clear in a game bill drafted by Thomas Jefferson and proposed by James Madison, draftsman of the second amendment, in the Virginia legislature.[14] The bill would have fined those who hunted deer out of season, and if within a year "[the hunter] shall bear a gun out of his inclosed ground, unless whilst performing military duty," he shall be in violation of his recognizance. The game violator would have to go back to court for "every such bearing of a gun" to be again bound to his good behavior.[15]

The whole thing is from:
http://www.guncite.com/journals/hal-lin.html


Citations reference the following:
#14 - A Bill for Preservation of Deer (1785), in 2 The Papers of Thomas Jefferson 443 (J. Boyd ed. 1950-1982) [hereinafter cited as Jefferson Papers]. On Madison's role in drafting the Second Amendment, see S. Halbrook, supra note 9, at 76.
#15 -A Bill for Preservation of Deer (1785), supra note 14, at 444.

 

[canopy2k]

So, my memory did serve me well! (except of course I thought it was Jefferson Davis..)

The actual quote is even MORE damaging to your lawyer friend than I imagined. First, it shows that all citizens were allowed/expected to bear arms in public. Second, it shows that ALL citizens were members of the militia. Note that even if convicted of a crime, an individual would still be expected to perform militia duties.

c2k

 

[wacki]

canopy2k,

Thanks, it looks like I missed the poaching aspect. Still, he insists this is evidence that when talking about personal rights they don't refer to militia. His argument is that they use a different language when referring to personal vs. militia duties. My debate with him is getting stranger by the moment. Here are his words in entirety:

Every colony had lengthy militia statutes which were then revised by the states after they gained independence. These regulations could be quite intrusive, allowing government to keep track of who had firearms and requiring citizens to report to muster or face stiff penalties. The individual colonies used their broad police powers to regulate the non-military use of firearms in a variety of ways. There were, for example, numerous regulations governing the storage of gunpowder. States also prohibited the use of firearms on certain occasions and in certain locations. For example, "An act in addition to the several Acts already made for the prudent Storage of Gun Powder within the Town of Boston, in 1786, empowered the town's fire warden to confiscate weapons and impose stiff fines for violating this law. The state also retained the right to disarm groups deemed to be dangerous. It could use loyalty oaths and enact discriminatory legislation to disarm particular groups in society that were deemed to pose a risk to public safety.

While he was a legislator in Virginia, Madison drafted a "Bill for the Preservation of Deer"; he proposed a stiff penalty for hunting out of season. The draft penalized people who "shall bear a gun out of his inclosed ground unless whilst performing military duty." Note that Madison's language shows how he understood the difference between bearing a gun for personal use and bearing arms for the common defense. Virginia retained the right to regulate the use of firearms for personal usage and differentiated between the level of restrictions that might be placed on bearing a gun for such personal use and bearing arms for the common defense. The language of the second ammendment is that which was commonly used for mlitary regulations.

 

[One of Many]

Trying to use the practices of the several individual States, to define the meaning of the finalized Second Amendment to the US Constitution, is pointless. No one State or individual dominated the resultant product of the discussion. The Second Amendment means what it says; it protects both a right of individuals to keep and to bear arms, and to participate in the militia made up of the People. It protects both the individual and the collective right to keep and bear arms.

It should be remembered that at times in some colonies/states, the People were required to go armed for defense, even when they went to church services on Sundays. Also, some colonies/states mandated that citizens be members of a particular religious faith. Much of what was considered common practice changed between the time when the country was first populated with settlers, and when the confederacy of States became a singular State known as the United States of America. The US Constitution and the Bill of Rights were a compromise agreed to by all of the participating States and the People who were citizens of those States.

 

[nplant]

Point your friend to the post where this sentence was posted:

"A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed."

 

[Cosmoline]

The cite is 2 Jefferson, Papers 443-44. And the quote is taken out of context. Your friend there is apparently attempting to flip the meaning around 180 degrees:

Linguistically, the term "bear arms" was not limited to militia service. Madison had sponsored a bill in the Virginia legislature under which a person who hunted deer illegally could not "bear a gun out of his inclosed ground, unless whilst performing military duty. . . ." 2 Jefferson, Papers 443-44 (Boyd ed. 1951). Thus, one may "bear" arms while not "performing military duty." Noah Webster, a prominent federalist, defined "bear" as "to carry" or "to wear. . . as, to bear a sword, a badge, a name; to bear arms in a coat." Webster, An American Dictionary of the English Language (1828). "To bear arms in a coat" typically meant to carry a pistol in a coat for self defense.

http://www.potowmack.org/noahweb.html

So Madison's proposed law actually highlights the fact that unless condemned of a crime citizens were presumably able to carry arms all over. It was only when caught poaching or in the act of some other crime that their freedoms were restricted. If there was no right to keep and bear arms in general, there would have been no need to draft a restiction for the poachers.

 

[BHPshooter]

If anything, that quote would effectively prove that the 2A is not about hunting.

Wes

 

[Fozzy_Bear]

"An act in addition to the several Acts already made for the prudent Storage of Gun Powder within the Town of Boston, in 1786, empowered the town's fire warden to confiscate weapons

Anybody notice something particurlarly important here?


???

1786 was PRE-US Constitution.

I would argue that is was exactly this kind of thing that motivated the bill of rights.


.

 

[canopy2k]

I'm not sure what he's arguing, exactly, but lets take this step by step.

Every colony had lengthy militia statutes which were then revised by the states after they gained independence. These regulations could be quite intrusive, allowing government to keep track of who had firearms and requiring citizens to report to muster or face stiff penalties.

Pre-Constitution. Refers to the Colonies. Has no effect on the meaning of the 2nd Amendment.

The individual colonies used their broad police powers to regulate the non-military use of firearms in a variety of ways. There were, for example, numerous regulations governing the storage of gunpowder. States also prohibited the use of firearms on certain occasions and in certain locations. For example, "An act in addition to the several Acts already made for the prudent Storage of Gun Powder within the Town of Boston, in 1786, empowered the town's fire warden to confiscate weapons and impose stiff fines for violating this law.

What's the point? Many places today still have rules on how certain quantities of powder are stored. Many anti-gun folks like to use THIS particular law (Storage of gun powder in Boston) stating that it prohibited having loaded firearms within the town of Boston. It did no such thing. It merely regulated leaving loaded weapons in unoccupied buildings, as it was dangerous in case of fire. Also of note: This particular law recognized that average citizens were allowed to possess "cannon, swivels, mortars, coehorns, firearms, bombs, grenades, and iron shells of any kind". Interesting, isn't it? In using this particular law, your lawyer friend is showing that ordinary citizens were allowed to own anything they wanted to, up to and including artillery. Not really what he was going for was it?

The state also retained the right to disarm groups deemed to be dangerous. It could use loyalty oaths and enact discriminatory legislation to disarm particular groups in society that were deemed to pose a risk to public safety.

The "state" also encouraged slavery. They enacted laws to and regulations that allowed blacks to be treated like animals. Perhaps this was one of the "dangerous groups" they were interested in disarming.

While he was a legislator in Virginia, Madison drafted a "Bill for the Preservation of Deer"; he proposed a stiff penalty for hunting out of season. The draft penalized people who "shall bear a gun out of his inclosed ground unless whilst performing military duty."

Already covered this one. He's taking the quote completely out of context to fit what he wants. The full proposed law obviously recognized the individual right to keep and bear arms.

Note that Madison's language shows how he understood the difference between bearing a gun for personal use and bearing arms for the common defense.

Important to touch on this. It's funny he should mention that. Madison recognized that even a criminal should be allowed to have a firearm to defend himself in his own home. If he didn't, he would have proposed a law that stripped the individual of even owning a firearm.


Virginia retained the right to regulate the use of firearms for personal usage and differentiated between the level of restrictions that might be placed on bearing a gun for such personal use and bearing arms for the common defense.

I'm apparently missing the point of this as well. Of course they regulated the use. You can't have folks target shooting on Main street in the middle of the day! It is perfectly acceptable to say that you cannot fire your arms within the city, unless for self-defense. Just like it is today. However, when fulfilling your militia duties, and the town is under attack it would be perfectly acceptable to disregard all storage and safety regulations. What's he getting at?

The language of the second ammendment is that which was commonly used for mlitary regulations. (sic)

The language used for the 2A is exactly the same language as used in the rest of the BOR. Does that mean that the rest of our rights really only apply to the military? That statement doesn't make a lick of sense...

Your friend is really grasping for straws. Everything he said is either fabricated or taken completely out of context. What's he gonna try next?

c2k