Second Amendment discussion (kinda long)

Went to my first day of Political Science/American Government at College. Professor is an interesting fellow. He came to class with a full suit, and with a bright blue cap and a pony tail sticking out the back. Later on he said "Don't judge things by the cover" and he took off the hat and the pony tail turned out to be fake. He was just a regular balding older guy in a suit.

He handed out a quiz on the first day, with the following questions (True or False):

I only got 2 of them "wrong", even though I still disagree with 1 of them. For reference purposes, here is the exact text of the Second Amendment:

As you probably guessed, the professor thinks that #9 is false. He explained his reasoning, which is that the Second Amendment refers to a "well regulated militia"--it's purpose being "necessary to the security of a free state".

Now, this professor strikes me as a bright fellow. He impressively took command of the class, and from his lecture, it's apparent that he knows his stuff pretty well. So, I'm looking for any sourced academic avenues of rebuttal. I told him that I disagree with his position on #9, and he is interested in discussing the issue with me further.

 

Ask him to cite you a Supreme Court case that rules its one way or the other...

If he cant (and he cant) then you are in the realm of political academic speculation, and both of you are wrong.

The answer is "maybe"

WilduncertaintyhelpsthecasueAlaska

 

That's an interesting way to proceed. I suppose the Supreme Court has the final say as to the specific meaning of the 2nd Amendment. I'll certainly ask him to cite me the case# of any SC decision on the matter.

My first idea was to ask him what he thought is the meaning of "well regulated militia". I haven't done a lot of research on the topic (just a cursory investigation via the internet). But, it seems to me so far that the law defines the "milita" as follows:

The above quote was taken from Findlaw.com.

So, to follow up on this, does the "well regulated militia" from the 2nd Amendment apply to the "organized militia" or does it apply to the "unorganized militia".

If our right to keep and bear arms is only within the context of a "well regulated" (or "organized militia"), then I can't see any right to private firearm ownership.

So just exactly what is the meaning of a "well regulated militia"?

 

The best thing I've written on the matter:

http://www.americanminutemen.org/reinhardt.htm

The best bits:

1) Your professor is ignoring US Code, TITLE 10, Subtitle A, PART I, CHAPTER 13, Sec. 311: http://www4.law.cornell.edu/uscode/10/311.html

While it was altered later to make a distinction between the "organized" and "unorganized" militias, the core idea of "all male citizens of reasonable combatant age" being part of a "militia" is unchanged from it's original form passed in 1792.

2) US vs. Miller referenced that, and never argued against moonshiner Miller being a part of the "militia". US vs. Miller also mentions a definition of "militia weapon" as being "weapons of a type used in civilized warfare" based on an 1840 TN case, Aymette. What the court found in Miller is that Mr. Miller's short shotgun "might not be" a "militia weapon" and bounced that question to the lower courts, where it was moot because Miller was dead.

3) Lower courts have twisted Miller to hell and gone - see also a law review article on that point: http://www.guncite.com/journals/dencite.html

4) The entire BoR can be read as a series of limits on the Federal Government. Why would they put in one clause GRANTING a "right" to state governments?

5) The idea that the 2nd Amendment doesn't apply to the states stems from the single most racist USSC decision in history: Cruikshank. http://laws.findlaw.com/us/92/542.html - print it, ask him if he agrees with it's conclusions, and let him know that the California AG's current position paper on gun rights CITES THIS CASE. Note also http://www.constitutioncenter.org/sections/history/19th.asp on the subject of Cruikshank.

Or just print out my article, and see what he makes of it. Explain that I'm now a registered lobbyist in California.

 

The official policy of the Executive branch is that a citizen has the right to keep and bear arms. The Supreme Court ruled in Miller and in Emerson that a private person has the right to keep and bear arms.

Even the Demo candidates last night (at least a few) acknowledge this right.

Laurence Tribe and Alan Dershowitz, both lefty constitutional scholars, agree that the 2A refers to private citizens.

The Federalist papers, and discussions threreof, show that the milita clause was never meant to take away from the operative clause.

There was much discussion and compromise on this wording, but the intent remains "people," not militia.

He is also bent on other questions. This is a constitutional republic. His questions seem to imply that it is a democracy. The contititution and BOR were made to limit government, not to empower it.

Search this forum for specifics. Or go to RKBA-dedicated pages.

Edited to add: Or ask Jim March

 

NUMBER 9 IS FALSE!

But not for the reason the professor thinks. Nothing in the Bill of Rights “establishes†a right. The Bill of Rights was a check on the power of the federal government by prohibiting encroachment upon the natural rights that a full member of the community already enjoyed prior to the existence of any political pact. The BoR just reaffirms certain cherished principles that the Founders had just fought for: political representation, freedoms of speech, assembly, and religion, the right to arms to defend one’s life and possessions from tyranny, to be secure in one’s home, to not be held without charge or via excessive bail, to have the right to a jury of one’s peers, etc. That list is the greatest hits of the so-called “Natural Rights†view, a philosophical view of politics and law that the Founders were pretty uniformly fond of.

The easiest to understand counter to the “States are protected by the 2A, not individuals†position is that the term “the people,†as understood in the other places it appears in the BoR, obviously refers to individuals. It would be logically and legally inconsistent to interpret “the people†as individuals in the rest of the BoR, and then infer, but only in one politically contentious amendment sandwiched inconveniently into the middle of such instances wherein “the people†is employed, that it suddenly means “the States.†Such a construction/reading is also obviously repugnant to the notion that the BoR was intended to constrain the powers of the federal government from overreaching against “the people†as citizens of the United States. The experience of the Crown running roughshod over the natural rights of the ex-colonists provided the drive for the BoR to be appended to the Constitution in the first place, not that the Crown was abusing the Governors of the various colonies by interfering with their call-ups of militia.

 

find yourself a REALLY old dictionary. when the constitution was drafted, the term Militia was a loosley defined as able bodied men. thats it. the definition of militia has changed over the years. the current definition does not necessarily mean the same thing as it did 200 years ago. the consititution was not written with a 2003 Websters dictionary to reference. your prof, as well as the courts, and law makers, are trying to interpret a 200 year old document with a brand new dictionary. it doesn't work that way. what they need is a 200 year old dictionary. some folks just love to ignore the SPIRIT in which the constitution was written. all they can do is tear it apart, word by word, with Websters help. they know damn good and well that the 2nd amendment was intended to ensure the right of the individual to keep and bear arms. but those in power, want more power. more dependence on them, so they can have control. and thats what its all about. control. as the cliche' says, gun control is not about guns, its about control.

Bobby

 

Just to follow up here, all the answers (from that quiz I posted) are false, according to the professor. He seems to be right on target (except for #9).

 

So then. You just have to straighten him out on #9. That will be very easy. Just follow Jim March on this one.

 

Are there any historical sources that show the "original form passed in 1792"? And, are there any references on just exactly how this text was changed? Thanks.

 

All the answers to that quiz is false.

9. The Second Amendment established the right of private citizens to own firearms.

#9 is false because it does not establish the right. The right exists outside of government. The only thing the 2A does is guarantee the right to be free from governmental infringement.

 

Okay then, how about changing the statement to:

The Second Amendment guarantees the right of private citizens to own firearms.

T or F?

 

Read this from the Second Amendment sisters. They had an expert in the English language analyze the text and he came to his own conclusion, and it's the one we all believe in.

http://www.2asisters.org/unabridged.htm

 

You might suggest that he read Chapter 3 of _The Bill of Rights_ by
Akhil Reed Amar, who is the Southmayd Professor fo Law at Yale.

 

Boats and Frohickey are technically correct, but don't go there right away.

The "Militia Act of 1792" is indeed a direct ancestor of US Code, TITLE 10, Subtitle A, PART I, CHAPTER 13, Sec. 311:

http://www.geocities.com/irby.geo/fed/1792mititiaact.html

While the 1792 statute was much more detailed in terms of organization, the nature of what the "grunts" are hasn't changed at all: male citizens between 18 and 45.

Don't believe me? Check out what the US Army has to say!

Source: http://www.arng.army.mil/history/Constitution/default.asp?ID=9

That page is VERY useful because it traces the various changes to the act since (right up to current...you can also see what was in place at the time of the Miller decision of 1937).

Sure, a lot changed, but the core concept did NOT.

--------------

NOW, having said all that, a number of very qualified modern constitutional scholars say that the personal right to arms has been disconnected from "militia service" since 1868 and the passage of the 14th Amendment.

The best know of these are Yale professor Akhil Reed Amar (whose work has been grudgingly supported by Lawrence Tribe) and Stephen Halbrook (who first noticed all this in his 1984 work "That Every Man Be Armed" but nobody paid attention until Amar's first law review articles in the mid-90s and then his 1998 book "The Bill Of Rights").

Basically what Halbrook and Amar have noticed is that the phrase "Privileges and immunities of US citizenship" was used extensively in Dred Scott (1856) and in that decision, listed the "P&Is" as including personal arms - which supposedly blacks weren't entitled to even when free.

So by saying that blacks were citizens, and then forbidding states from "infringing on the privileges and immunities" of citizens, the writers of the 14th were specifically arming blacks against the proto-KKK of the time (which was often the same thing as the Southern state militias!). Sure enough, speeches by John Bingham and other authors of the 14th make this dead clear - they used the language of Dred Scott to specifically *overturn* Dred Scott, including overturning the part that says they can be disarmed.

(A note on Dred Scott: a lot of people misunderstand it. Basically, the court was "legally correct but morally flawed". They decided that racist laws were OK in the US because we'd had racist laws in place before the revolution, and immediately after the states passed tons of nasty racist laws often supported by people who had founded the nation. They were sadly correct and their citations of colonial/revolutionary racist laws were accurate. So despite the end of slavery and the 500,000 dead in the Civil War a decade after Dred, at war's end the Dred Scott decision was still binding. Only a constitutional amendment could fix that.)

Problem: blacks may have been citizens in 1868, but they didn't yet have the vote. They had "civil rights" but no "political rights" - much like white women of the same period. (Voting came with the 15th Amendment a few years later).

So if blacks were to be armed via the 14th, the 2nd Amendment was being transformed from it's link to the "political right" of militia service which was akin to jury duty and voting to a "purely personal right" of self defense...without necessarily destroying the militia concept, mind you.

The first effect of this argument is to show a gaping flaw in the Miller decision - which was drafted during the period when the 14A was still largely "gutted" by the courts in a series of horribly racist cases from 1872 through about 1900. Miller postulated a strong link to "militia weapons" that is meaningless if the 14A made as many changes as it seems to have.

Second, and even better, no black armed in 1868 could have expected to do so with openly carried arms. He wouldn't have lasted very long. Concealable handguns had been common at least since the 1850s and the Mormon invention of the big-bore snubbie , plus all sorts of pocket revolvers and the like. A Carolina freeman of 1868 could have afforded one or two used 1851 Colts or some copy thereof, and chopped the barrels enough for coat pocket carry.

This is the only Constitutional argument I'm aware of that directly backs concealed carry.

 

I'd ask him to prove his assertion with facts, such as quotes from the founding fathers and the documents they left behind such as the federalist and anti-federalist papers, showing even a hint of evidence that the 2A was not fully intended to protect an individual right to bear arms.

He, of course, will not be able to do this.

Furhter, there was an interesting article in "America's First Freedom," the mag I get from the NRA, about how the SC cases that "prove that the 2A isn't an individual right" actually do NOT say that. You could probably find it online...

 

That's an interesting point. My thoughts are that the default position should be that the 2nd Amendment guarantees the right of private citizens to own firearms, and that the burden of proof should be on the person who believes otherwise.

How does it make any sense whatsoever to maintain a default position against private ownership of the means of self-defense, and therefore demand a burden of proof to show that it is actually a private right?

I agree, he needs to prove his assertion with facts. The burden should be on him.

 

Lots of good suggestions here. It strikes me that I would without a doubt frame my arguments differently when addressing a professor/intellectual type than when addressing the average man on the street. A study conducted by the U.S. Department of Education found that half the adult population does not possess the most basic level of reading ability. 90 million Americans lack basic literacy skills. Think about how dumb the average person is, then remember that half of them are dumber than that.

 

Wooohooo!

Jim March called me technically correct...

wait... is that a good thing?

 

1. The Constitution established a democratic form of government in the United States.
2. Thomas Jefferson supported the Constitution.
3. John Adams advocated Democracy for the United States.
4. The Constitution is based upon the democractic principle of Majority Rule.
5. A law that is undemocratic is therefore unconstitutional.
6. The Constitution grants the Supreme Court the power of Judicial Review.
7. The Bill of Rights gives the government additional authority to protect the rights of the people.
8. Alexander Hamilton argued that the Bill of Rights was absolutely necessary to protect the people.
9. The Second Amendment established the right of private citizens to own firearms.
10. The United States is a Constituional Democracy

1. Constitutional republic... remember the Ben Franklin snippet "A republic, if they can keep it."
2. TJ was in France and returned home when aghast at the US Constitution
3. Dunno about this one, but all of the FF considered democracy as mob rule
4. Definitely false
5. ...
6. Trial by jury is the final say
7. Bill of Rights are limitations on government... it doesn't grant any additional powers to the feds
8. Hamilton was against the BoR, but acquiesed to it.
9. enough said.
10. Constitutional republic.

 

Now that is comforting

 

It may not be comforting, but as I look around these days, I'm really beginning to think it's oh so true..

 

Sorry, but that is an incorrect version of the Amendment. It has 3 commas when it should only have one. It should read;

The first part of the Amendment is a DEPENDANT clause, the second part is an INDEPENDANT clause. Therefore, it is the SECOND part which is the main object of the sentence. I have a link to a photograph of an original copy of the BOR that clearly shows the original, correct punctuation. I'll try to find it. Even the NRA is using the wrong version, but when you look at the correct version, simple grammer will tell you what the 2nd Amendment means.

Also, the word "regulated" had a different meaning at the time. It meant trained not "buried in regulations".

 

Wouldn't that mean the other half is smarter?

 

Wouldn't that mean the other half is smarter?