The 2nd's fragment

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I'm going to admit that I'm no history buff - and I am overdue for getting a book on American history and filling in the gaps that were missed when I dozed off in highschool (I was a slacker and have been working to make up for it ever since).

Does/did the UK law, or Australia law, or anything else that shares the same legal roots as our law contain anything similar to the 2nd - and if so, how was it worded?

I'm curious.

Thanks for being willing to talk about this folks. I really am interested in understanding it better, if nothing else from an English and historical perspective.
 
See Volokh's Commonplace Second Amendment.
The Commonplace Second Amendment

Prof. Eugene Volokh, UCLA Law School *

(73 NYU L. Rev. 793 (1998))

The Second Amendment is widely seen as quite unusual, because it has a justification clause as well as an operative clause. Professor Volokh points out that this structure was actually quite commonplace in American constitutions of the Framing era: State Bills of Rights contained justification clauses for many of the rights they secured. Looking at these state provisions, he suggests, can shed light on how the similarly structured Second Amendment should be interpreted. In particular, the provisions show that constitutional rights will often -- and for good reason -- be written in ways that are to some extent overinclusive and to some extent underinclusive with respect to their stated justifications.
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The 1689 English BOR had an article about standing armies, followed by an article about arms:

That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;

That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law;


It is not clear to me if the concern was that individual Protestants be able to defend their persons against burglars and such, or if the concern was a collective defense ... I suspect that the King tried to use the military to dominate a people, and the people declared that a standing army is a danger to liberty, and that the people could (collectively) defend themselves in times of peace. I don't see why they'd declare that only Protestants have a right to defend themselves against burglars, and it seems easier to accept that the idea was that Protestants would have arms for the collective defense. Somebody here must know more about the English Revolution of 1688 in which King James II was dethroned, and what lead to the declarations in question.
 
i see it as a change is speaking styles. times have changed and so have the way we use words and punctuation. if i were to switch places with some kid from 1776 im pretty sure i would have no idea what they were saying.
 
Oh, it's completely clear. The "comma issue" is only an issue for those trying to make it mean something other than what it obviously says.

As Outlaw man pointed out, they said "right of the PEOPLE" not "right of the MILITIA" - that can't be parsed away with one comma or a thousand.

All the subordinate clause clarifies is that the right (and duty, according to the earlier version) to keep and bear militia arms. IE - to own and carry the common implements of the footsoldier of the day.

As has been pointed out so well before.. anyone who says the "collective rights" interpretation is correct is either illiterate or lying. The plain language of the amendment and the history and supporting documents all support this.

-K

PS - The Economist - here's a nice summary:
http://www.guncite.com/journals/vandhist.html

There's a nicely bound blue book giving a more in depth history of the amendment and what preceded it. I can't recall offhand who wrote it, but I know there were ads for it in the Rifleman a few years back.
 
Kaylee,

I'd have to say it goes a whole lot further than what the foot soldier might tote around. "Back then", private individuals owned cannon and ships outfitted for war. My Great-grandfather, Captain William J. Macy, was such a man. He owned and captained a whaling ship out of Nantucket and later out of New Bedford, Ma. in the mid to late 1800's, cannon and all! (He passed away in 1903.)

Woody

A law that says you cannot fire your gun in the middle of downtown unless in self defense is not unconstitutional. Laws that prohibit brandishing except in self defense or handling your gun in a threatening or unsafe manner would not be unconstitutional. Laws can be written that govern some of the uses of guns. No law can be written that infringes upon buying, keeping, storing, carrying, limiting caliber, limiting capacity, limiting quantity, limiting action, or any other limit that would infringe upon the keeping or bearing of arms. That is the truth and simple reality of the limits placed upon government by the Second Amendment to the Constitution. B.E.Wood
 
Is it really a militia if unarmed?

Simple logic clarifies the meaning of the text. If one chooses to argue that the 2nd amendment only pertains to militia, then one must argue that the 2A guarantees the militia the right to be armed. Other than in France, why would anyone EVER consider having a militia that wasn't armed? Why would the founders waste any time and effort guaranteeing the right of a militia to be armed? It wouldn't be a militia otherwise, it'd be a surrender committee...

It's clear the 2nd amendment is an individual right to anyone willing to be intellectually honest. Clearly, the antis aren't.

There, I feel better...
 
And further, the people in relation to a militia were/are already secured the right to bear arms in article 1, section 8 clause 15, so why would many of the framers, the ratifying committees, and the 1st Congress, feel the need to re-iterate that right in a list of PERSONAL rights? Because they were further protecting it is AN INDIVIDUAL RIGHT!
 
the security of a free state
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A well armed populace is unnecessary to secure the authority of any state. Most tyrannies have ruled disarmed populaces. Many states today are quite secure in the face of a disarmed population. In fact, a well armed populace is hostile to the security of a state's authority. Forcing armed people to do things is difficult.

So what is the right to keep and bear arms securing? Not the authority of the "free state" but the freedom of the free state, especially the freedom of the citizens of the state. They are safeguarding the existance of the free state from men who would turn it into an unfree state for their private political and commercial ambitions.
 
Some people seem to believe that the intent was to declare a personal RKBA and then to provide the idea of militia in support of this personal right.

But I think the intent was to declare that military rule is a threat to free government and then to provide the idea of militia as a way to address this threat.

Maryland's 1776 BOR broke it up into three articles:

XXV. That a well-regulated militia is the proper and natural defence of a free government.

XXVI. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature.

XXVII. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.
 
hugh - I believe you're partially correct, but that's not the whole story.

Yes, the founders viewed a standing military as antithetical to liberty, and relied on the militia as a counterbalancing force. However, if that was all they required, they could just as easily have prescribed local armories, such as were used in the colonies at times. (And as shield20 mentions, is already provided for in the main body of the Constitution, where among the designated powers of Congress is to "provide for organizing, arming, and disciplining the Militia.")

I rather suspect that the march of the British on the Colonial armory in Concord may have soured some on the practice of centrally stored small arms, but I'll admit that's just speculation on my part.

Regardless, that is not all that the 2A speaks to. As already noted, the intent to safeguard the personal, individual RKBA is inherent in the use of the right of the People to keep and bear arms. Likewise the 2nd's placement among the Bill of Rights, which lists individually guaranteed rights.

Rather, the "militia clause" explains the importance and the purpose for which that right is guaranteed and protected. Namely, to safeguard all of those liberties with more than words on paper.

-K

PS- woodcdi - while I may agree with you in principle, I think even then it was understood for every ship captain or Henry Knox armchair artillerist, there were hundreds of plain ol' folks with small arms. The extent as to which of the "terrible implement of the soldier" the 2A protects can still be debated, but I think it can be safely agreed that (in spite of the Fed's present infringement) it extends at least as far as anything that can be carried and used by one or two people.
 
When Madison first propesed the "amendment", it was:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

Obviously structured differently, but the 2 main points are still connected. Note though the "Best security". I have not found any documentation on why the Select Committee modified it to:

"A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms."

Then the Senate pared it down further, again with very little doc, as the Senate was held in private, and the one guy whose diary survived, was SICK those days of debate (Sept 4, 7th).

We DO know they refused to add "for the common defence" - which should further prove the indivdual aspect, but also note the "being necessary"; this shows just how important the Militias were to the States, and the original Constitution shows how important to the United States, and the people.

Although many wanted a "standing army" clause added, the Congress must have known a federal army was inevitable, what with all our forts in the wilderness, size of the country etc. They also figured placing the military purse in the hands of Congress, partially composed of the people's chosen reps and limiting funding to 2 years would limit the size in times of peace.

What they NEVER wanted was the federalizing of the State Militias, OR the disarming of the true source of power and authority - us, but...
 
As already noted, the intent to safeguard the personal, individual RKBA is inherent in the use of the right of the People to keep and bear arms. Likewise the 2nd's placement among the Bill of Rights, which lists individually guaranteed rights.

Rather, the "militia clause" explains the importance and the purpose for which that right is guaranteed and protected. Namely, to safeguard all of those liberties with more than words on paper.
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Again, I do not believe that the intent was to declare a personal right and then use the idea of militia to explain the importance of what was being declared. If we boil the Second Amendment down to its final residue, I do not believe that it would say "every person has an inalienable RKBA", I believe it would say "the military must be subordinate to the civil power". These are two quite different principles.

In 1775, Virginians had personal arms in our personal homes, and we also had British Troops here to dominate us. Personal arms in our personal homes wasn't the objective. The objective was to get rid of standing armies and the threat of military rule and to secure free government. And the declaration was that the proper defense of a free State is not a standing army but rather militia.

To make this clear .... there was a time after the "Civil War" when Virginians had personal arms in our personal homes, and we also had yankee troops here keeping our region under military rule. The way yankees tell it, they had to put us under military rule because we were denying negroes their "Second Amendment rights". But in my reality, the Second Amendment was intended to stand against the threat of military rule, and I reckon only yankees could put a region under military rule in the name of the Second Amendment.

Or let's turn this around ... suppose that there is another war between the States and this time the South wins and you yankees here have your State under military rule ... are y'all going to tell me that, as long as we let y'all keep personal guns in your personal homes, then the Second Amendment is alive and well in your region? And if y'all regain control of your State, regain your free government, and keep your arms in armories, would the Second Amendment then be dead in your region?
 
The 2nd does two things - period...it states the requirement of well-armed and well trained State Militias - and why, and it protects the individual right to keep and bear arms of We, the people, who just happen to make up the Miltiias. As you say, The Miltias of the several States were the answer a standing army - they were the primary securers of freedom for the people of the States AND the United States - against insurrection, invasion, and tryanny.

read this: http://www.thehighroad.org/showthread.php?t=262834

The Milttias were HUGE in the eye of the people, as they WERE the people. They would lessen the need for a large standing army, which was of the federal govt, and most likely to be the strong arm of a tyrant.
 
If we boil the Second Amendment down to its final residue, I do not believe that it would say "every person has an inalienable RKBA", I believe it would say "the military must be subordinate to the civil power". These are two quite different principles.
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Indeed they are very different principles.

You still have not explained why then the 2A is listed amongst a list of protected individual liberties, or why it refers to the "right of the People."

Civilian power over the military is indeed an important part of our system, but it's not the sum total of the meaning of the 2A. Indeed, it's already covered in Article II, Section II.

Without getting too deeply embroiled again in the Late Unpleasantness, suffice it to say in both your examples the rights of the people are violated.

-K

PS - and I'd take it as a kindness if you don't call me a yankee. We don't take that too well down here south of Virginia ;)
 
“That is a bit of a strech”

It is, but so is viewing NY as relatively gun friendly.


“. MA is not overly gun firendly, in most cities and large towns it is near impossible to receive a Class A LTC with ALP. “

Agreed, but near impossible is not the same as impossible, which would be said of NY city. As mentioned, I do know several people with Class A LTC who live in the Boston City limits.

“In the smaller and medium size towns it useally is pretty easy to recieve a CCW but that seems to be changing. It all depends on the CLEO attuide to the 2nd AD. Remember RKBA in Mass has been nullfied in the courts by the State Supreme court sided with the state claim that the 2nd Ad only applied to State funded militas.”

Yes, in MA it very much town to town/city to city and left to the discretion of the CLEO. Seems rather unconstitutional to me and exactly what it’s supposed to protect us from, but I am preaching to the converted here.
 
You still have not explained why then the 2A is listed amongst a list of protected individual liberties, or why it refers to the "right of the People."
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Perhaps you should explain why you think that a BOR lists protected individual liberties. I see a BOR as declaring principles of, or limits upon, government. For example, I believe I could declare the principles of the legislative branch of a free government by borrowing declarations from the bills of rights of the original States:

That all power being originally inherent in, and consequently, derived from, the people; therefore, all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.

The legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other.

That those who are employed in the legislative and executive business of the State, may be restrained from oppression, the people have a right, at such periods as they may think proper, to reduce their public officers to a private station, and supply the vacancies by certain and regular elections.

That freedom of speech and debates, or proceedings in the Legislature, ought not to be impeached in any other court or judicature.

That the right in the people to participate in the Legislature is the best security of liberty, and the foundation of all free government; for this purpose, elections ought to be free and frequent, and every man, having property in, a common interest with, and an attachment to the community, ought to have a right of suffrage.

That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance.


Likewise, I believe that I could declare the principles of the proper defense of a free government by borrowing declarations from the bills of rights:

That a well-regulated militia is the proper and natural defence of a free government.

That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature.

That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.

I reckon I haven't explained why it says "the people" because that wasn't the question. The question was why it says "a well regulated militia, being necessary to the security of a free State".
 
A BOR might not, but THE BOR that is part of the US Consitution does. The enumeration ALSO places a limit on government.

The 1st clue would be: The "Bill of Rights"; what are Rights if not individual liberties?

Madison: on his proposed amendments: In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact

the great object in view is to limit and qualify the powers of Government


Senator Grayson: the lower house sent up amendments which held out a safeguard to personal liberty in a great many instances,
 
Thank you shield, you said it perfectly. :)

I'm afraid I don't see where you're going though hugh.. what is the practical difference that you're positing between these two statements -

"Congress shall make no law abridging the freedom of speech."

and

"There is an individual right to free speech."


Are you saying that although Congress is prohibited from abridging free speech, that there is no individual right to free speech guaranteed in the Bill of Rights?

-K
 
The comma issue really isn't an issue at all. Some people used it at one point in an attempt to derail the Second Amendment and now we've got another "possible alternate interpretation" used by 2A naysayers. The use of commas in seemingly (with respect to today's language) odd places would show that language evolves over time. Go back further and it just gets worse.

Its funny how you don't find these people attempting to discredit other areas of the US Consitution and Bill of Rights when they come across "comma screwups"...only the 2A. You really need to be out of argumentative points to start attacking defenseless punctuation :p
 
what are Rights if not individual liberties?
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I have read the original bills of rights of the original States and they make declarations that do not seem to be individual liberties, but rather they seem to be declarations of principles of, or limits upon, the government being framed. I understand this to be a "political right" - a principle that is "right" according to a particular system of government.

If I had to make a bill of individual liberties, I might declare things like the right to an opportunity to provide for myself, a right to marry, a right to have children ... a bill of rights doesn't declare these things.

On the other hand, if I had to make a bill of principles of free government, I might declare that free government is empowered by the people, that it is for the good of the whole, that the government should have separate branches, that the legislature should be freely elected, that the legislatures should be able to speak freely, that the people have a right to peaceably assemble and to petition for a redress of grievances, that there should be no standing army in times of peace ... and bills of rights do in fact declare these things.

I must have listed a dozen declarations from the original bills of rights from the original States, saying things like "government should have separate branches". And I am asked "what are rights if not individual liberties". They are principles of, or limits upon, government - not personal/natural/individual rights, but political rights, principles which are "right" according to the form of government being framed. A Constitution frames a government, and a bill of rights declares principles of, or limits upon, that government.


what is the practical difference that you're positing between these two statements -

"Congress shall make no law abridging the freedom of speech."

and

"There is an individual right to free speech."
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In the federal context ... the first statement conforms with my understanding of constitutionalism and federalism, because it attempts to limit only the government which is framed by the Constitution in question i.e. a constitution frames a government and a bill of rights limits that government ... the second statement would likely be interpreted to mean "no State shall infringe on the right to free speech, and the US Congress shall have power to enforce this provision" ... that would not conform with my understanding of constitutionalism or federalism because (1) the constitution would frame one government and then the bill of rights would be limiting other governments with their own constitutions and their own bills of rights, and (2) I do not believe that a limited federal government can protect our personal rights because that would turn it into a national government. Basically, your first statement clearly is intended to limit congress, while the second statement might easily be construed so as to further empower congress.

Are you saying that although Congress is prohibited from abridging free speech, that there is no individual right to free speech guaranteed in the Bill of Rights?
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Free speech is a great example. I see it as regarding a principle of, or limit upon, free government. Consider these early declarations of the right to free speech:

"That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament" - 1689 English BOR

"Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress, and the members of Congress shall be protected in their persons from arrests or imprisonments, during the time of their going to and from, and attendence on Congress, except for treason, felony, or breach of the peace." - Articles of Confederation

"That freedom of speech and debates, or proceedings in the Legislature, ought not to be impeached in any other court or judicature." - 1776 Maryland Bill of Rights

And a couple of States declared it as a personal right:

"That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained." - Pennsylvania/Vermont Constitutions (1776/1777)

It seems to me that these things begin in response to despotism, like representatives being threatened with arrest, and the declaration that representatives shall have a right to speak freely ... and then they devolve into the libertarian idea of individual free speech ... today most people think the right to free speech has to do with yelling "fire!" in a crowded theater, but that doesn't seem to be a principle of free government, and so we seem to have lost the vision.

But anyway, to answer your question, yes, although Congress is prohibited from abridging free speech, there is no individual right to free speech guaranteed in the Bill of Rights. That is a 14th "Amendment" vision ... but the original amendments i.e. the Bill of Rights did not empower the US to be the protector of our personal right to free speech, it limited Congress, but did not limit the States or the people so it did not protect our right except against Congress.
 
What is the supreme law of the land? And the amendments overode anything previous besides, they hold more weight IF THEY impacted the original document; which is why ANYTHING in the original document that infringes on the right to keep/bear arms and the requirments of the Miltias in unconstitutional. COmmerce powers, tax powers, Federal National Guards, etc. are ALL poor UNjustifications for infringing on a right protected in the Bill of Rights.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
 
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I believe you're confusing the US Bill of Rights (or to more correct, some nameless generic philosophical entity "a Bill of Rights") with a Consitution or Constitutional Amendments. This is clear when you say "I see a BOR as declaring principles of, or limits upon, government."

This is partially incorrect. Yes, the limits upon gov't are placed there.
However, they are placed there to protect the rights of the people. Reference the ninth -

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

If the rest of the BOR does not (as its very name suggests) list rights of the people, then what the heck is the 9th referring to when it says "certain rights?"

That the BOR was included to protect individual rights is made VERY clear in contemporary documents, as well as your high school history book. As already mentioned, the very NAME "Bill of RIGHTS," which is also contemporary with its authorship, should be enough to tell you that.



And finally, I'll ask you again.. where are you going with this? It appears to me you're taking the classic Anti-Federalist position - that the US Constitution needn't or shouldn't list rights of the people, for fear of a listing of some rights would infer a complete list, and anything not listed could be controlled by the gov't. Is that so?

If not, what's your aim?

Are you denying an individual right to keep and bear arms exists?
If so, why, and with what basis?

-K
 
Journal of the Senate of the United States of America, 1789-1793
FRIDAY, SEPTEMBER 4, 1789.

On motion to adopt the fifth article of the amendments proposed by the House of Representatives, amended to read as followeth: 'a well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall net be infringed:'

It passed in the affirmative.
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Journal of the Senate of the United States of America, 1789-1793
WEDNESDAY, SEPTEMBER 9, 1789.

On motion to amend article the fifth, by inserting these words, 'for the common defence,' next to the words 'bear arms:'

It passed in the negative.

On motion to strike out of this article, line the second, these words, 'the best,' and insert in lieu thereof 'necessary to the:'

It passed in the affirmative.

On motion, on article the fifth, to strike out the word 'fifth,' after 'article the,' and insert 'fourth,' and to amend the article to read as follows: 'A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.'

It passed in the affirmative.
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Journal of the Senate of the United States of America, 1789-1793
APPENDIX. PROPOSED AMENDMENTS TO THE CONSTITUTION.

Art. IV. 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.
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Journal of the House of Representatives of the United States, 1789-1793
FRIDAY, AUGUST 21, 1789

agreed to by the House, as follows, two-thirds of the members present concurring, to wit:
5. A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.
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Journal of the House of Representatives of the United States, 1789-1793
Congress of The United States:
Begun and held at the City of New York, on Wednesday, the fourth of March, one thousand seven hundred and eigthy-nine.

Article the Fourth. 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.
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From these official documents recording the consideration of the US Senate and House of Representatives concerning the "Bill of Rights", it is evident that there is no significance placed on the presence or absence of the 'extra' two commas separating the first and second clauses into two parts each. The amendment means the same with one comma or three.

The term 'Milita' is taken to be synonymous with "The People" in the amendment, meaning the 'Militia' is composed of "The People", and the people have a right to keep and bear arms so they may preserve the security of a free state. The 'State' does not have the power to force anyone to bear arms in defense of the 'State', indicating this was conceived as an individual Right, NOT A DUTY of the individual, and not a power of the 'State'.
 
I would argue IT IS the duty of the people to serve in the Militia. The Miltia Act stated that all able-body male citizens..." shall severally and respectively be enrolled in the militia,

The reason the religious exemption clause was removed is that a) it would deprive Militia of people who were obligated to serve, and b) it left an out for a tyrannical government to DECLARE who was exempt, and so deprive the Militia of members who would oppose that tryanny, 3) it would appear to the people that the govt could compel everyone to serve, depite religious objections.

It is NOT an option except for certain exemptions - it is most certainly a duty of the people to serve in the Militia - it is necessary for freedom - of the several States and of the United States.

Mr Scott objected to the clause in the 6th amendment "No person religiously scrupulous shall be compelled to arms. He observed that if this becomes part if the constituion, such persons can neither be called upon for their service nor can an equivalent be demanded; it is also attended with still further difficulties, for a Militia can never be depended on. This would lead to violation of another article in the consttitution which secures the people the right of keeping arms (A1 S8 C16) and in this recourse must be had to a standing army.
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