Gun Enthusiasts Mobilize

[anonemouse 1]

There is no freedom expressed or otherwise to molest children, yet ACLU seems to believe there is.

The ACLU isn't defending their right to molest children. The ACLU is defending their right to freedom of speech. As should you, since you are an ardent supporter of the Constitution. It isn't the popular opinion that needs supporting, it's the unpopular one.

That we make laws to stop such abnormal behavior as much as possible doesn't keep such behavior by perverts, criminals and the mentally incontinent from their actions.

No, it doesn't. But it does provide a way to punish them. No laws = no punishment.

[anonemouse 1]

Try looking at the First Amendment, Jack. Their sexual activity may be illegal, but their speech is not.

From the ACLU website:

Why did the ACLU defend NAMBLA?

In representing NAMBLA, the ACLU does not advocate sexual relationships between adults and children. What we do advocate is robust freedom of speech. This lawsuit strikes at the heart of freedom of speech. The defense of freedom of speech is most critical when the message is one most people find repulsive. For more information, please read the ACLU's press release.

Here is the press release:

NEW YORK--In the United States Supreme Court over the past few years, the American Civil Liberties Union has taken the side of a fundamentalist Christian church, a Santerian church, and the International Society for Krishna Consciousness. In celebrated cases, the ACLU has stood up for everyone from Oliver North to the National Socialist Party. In spite of all that, the ACLU has never advocated Christianity, ritual animal sacrifice, trading arms for hostages or genocide. In representing NAMBLA today, our Massachusetts affiliate does not advocate sexual relationships between adults and children.

What the ACLU does advocate is robust freedom of speech for everyone. The lawsuit involved here, were it to succeed, would strike at the heart of freedom of speech. The case is based on a shocking murder. But the lawsuit says the crime is the responsibility not of those who committed the murder, but of someone who posted vile material on the Internet. The principle is as simple as it is central to true freedom of speech: those who do wrong are responsible for what they do; those who speak about it are not.

It is easy to defend freedom of speech when the message is something many people find at least reasonable. But the defense of freedom of speech is most critical when the message is one most people find repulsive. That was true when the Nazis marched in Skokie. It remains true today.

[anonemouse 1]

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

You or I may find someone's statement disgusting, but that doesn't mean they don't have the right to say it.

[anonemouse 1]

Actually, Jack, you forget that the second amendment does not apply to the rights of an individual to bear arms. It applies to the right of a state to maintain a militia.

Gun Control

"Why doesn't the ACLU support an individual's

unlimited right to keep and bear arms?"

BACKGROUND

The ACLU has often been criticized for "ignoring the Second Amendment" and refusing to fight for the individual's right to own a gun or other weapons. This issue, however, has not been ignored by the ACLU. The national board has in fact debated and discussed the civil liberties aspects of the Second Amendment many times.

We believe that the constitutional right to bear arms is primarily a collective one, intended mainly to protect the right of the states to maintain militias to assure their own freedom and security against the central government. In today's world, that idea is somewhat anachronistic and in any case would require weapons much more powerful than handguns or hunting rifles. The ACLU therefore believes that the Second Amendment does not confer an unlimited right upon individuals to own guns or other weapons nor does it prohibit reasonable regulation of gun ownership, such as licensing and registration.

IN BRIEF

The national ACLU is neutral on the issue of gun control. We believe that the Constitution contains no barriers to reasonable regulations of gun ownership. If we can license and register cars, we can license and register guns.

Most opponents of gun control concede that the Second Amendment certainly does not guarantee an individual's right to own bazookas, missiles or nuclear warheads. Yet these, like rifles, pistols and even submachine guns, are arms.

The question therefore is not whether to restrict arms ownership, but how much to restrict it. If that is a question left open by the Constitution, then it is a question for Congress to decide.

ACLU POLICY

"The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment [as set forth in the 1939 case, U.S. v. Miller] that the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms." --Policy #47

ARGUMENTS, FACTS, QUOTES

"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 Second Amendment to the Constitution

"Since the Second Amendment. . . applies only to the right of the State to

maintain a militia and not to the individual's right to bear arms, there

can be no serious claim to any express constitutional right to possess a firearm."

U.S. v. Warin (6th Circuit, 1976)

Unless the Constitution protects the individual's right to own all kinds of arms, there is no principled way to oppose reasonable restrictions on handguns, Uzis or semi-automatic rifles.

If indeed the Second Amendment provides an absolute, constitutional protection for the right to bear arms in order to preserve the power of the people to resist government tyranny, then it must allow individuals to possess bazookas, torpedoes, SCUD missiles and even nuclear warheads, for they, like handguns, rifles and M-16s, are arms. Moreover, it is hard to imagine any serious resistance to the military without such arms. Yet few, if any, would argue that the Second Amendment gives individuals the unlimited right to own any weapons they please. But as soon as we allow governmental regulation of any weapons, we have broken the dam of Constitutional protection. Once that dam is broken, we are not talking about whether the government can constitutionally restrict arms, but rather what constitutes a reasonable restriction.

The 1939 case U.S. v. Miller is the only modern case in which the Supreme Court has addressed this issue. A unanimous Court ruled that the Second Amendment must be interpreted as intending to guarantee the states' rights to maintain and train a militia. "In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than 18 inches in length at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument," the Court said.

In subsequent years, the Court has refused to address the issue. It routinely denies cert. to almost all Second Amendment cases. In 1983, for example, it let stand a 7th Circuit decision upholding an ordinance in Morton Grove, Illinois, which banned possession of handguns within its borders. The case, Quilici v. Morton Grove 695 F.2d 261 (7th Cir. 1982), cert. denied 464 U.S. 863 (1983), is considered by many to be the most important modern gun control case.

[Mom2Sassy 0]

Jack, you rock. I'd add my two cents to this debate, but you seem to have it covered!:clap2:

[DerickM 1]

Since When has the ACLU become responsible for making and interesting the law? Funny, I thought it was the judicial branch of the government that was supposed to do that.

Oh, I can quote also:

In his popular edition of Blackstone's Commentaries on the Laws of England (1803), St. George Tucker (see also), a lawyer, Revolutionary War militia officer, legal scholar, and later a U.S. District Court judge (appointed by James Madison in 1813), wrote of the Second Amendment:

The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government.

In the appendix to the Commentaries, Tucker elaborates further:

This may be considered as the true palladium of liberty... The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

Not only are Tucker's remarks solid evidence that the militia clause was not intended to restrict the right to keep arms to active militia members, but he speaks of a broad right – Tucker specifically mentions self-defense. "Because '[g]reat weight has always been attached, and very rightly attached, to contemporaneous exposition,' the Supreme Court has cited Tucker in over forty cases. One can find Tucker in the major cases of virtually every Supreme Court era." (Source: The Second Amendment in the Nineteenth Century)

(William Blackstone was an English jurist who published Commentaries on the Laws of England, in four volumes between 1765 and 1769. Blackstone is credited with laying the foundation of modern English law and certainly influenced the thinking of the American Founders.)

Another jurist contemporaneous to the Founders, William Rawle, authored "A View of the Constitution of the United States of America" (1829). His work was adopted as a constitutional law textbook at West Point and other institutions. In Chapter 10 he describes the scope of the Second Amendment's right to keep and bear arms:

The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give 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.

This is another quote where it is obvious that "the people" refers to individuals since Rawle writes neither the states nor the national government has legitimate authority to disarm its citizens. This passage also makes it clear ("the prohibition is general") that the militia clause was not intended to restrict the scope of the right. (In 1791 William Rawle was ppointed United States Attorney for Pennsylvania by President George Washington, a post he held for more than eight years.) Yet another jurist, Justice Story (appointed to the Supreme Court as an Associate Justice by James Madison in 1811), wrote a constitutional commentary in 1833 ("Commentaries on the Constitution of the United States"). Regarding the Second Amendment, he wrote (source):

The next amendment is: "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 importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

As the Tennessee Supreme Court in Andrews v. State (1871) explains, this "passage from Story, shows clearly that this right was intended, as we have maintained in this opinion, and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights." Story adds:

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

Story laments the people's lack of enthusiasm for maintaining a well-regulated militia. However, some anti-gun rights advocates misinterpret this entire passage as being "consistent with the theory that the Second Amendment guarantees a right of the people to be armed only when in service of an organized militia." (See Arms, Anarchy and the Second Amendment for an example of reaching that conclusion by committing a non-sequitur.) The need for a well-regulated militia and an armed citizenry are not mutually exclusive, nor was the right to have arms considered dependent on membership in an active militia (more on that later). Rather, as illustrated by Tucker, Rawle, and Story, the militia clause and the right to arms were intended to be complementary.

More Evidence Supporting an Individual Right

After James Madison's Bill of Rights was submitted to Congress, Tench Coxe (see also: Tench Coxe and the Right to Keep and Bear Arms, 1787-1823) published his "Remarks on the First Part of the Amendments to the Federal Constitution," in the Federal Gazette, June 18, 1789 He asserts that it's the people (as individuals) with arms, who serve as the ultimate check on government:

As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their

private

arms.

"A search of the literature of the time reveals that no writer disputed or contradicted Coxe's analysis that what became the Second Amendment protected the right of the people to keep and bear 'their private arms.' The only dispute was over whether a bill of rights was even necessary to protect such fundamental rights." (Halbrook, Stephen P. "The Right of the People or the Power of the State Bearing Arms, Arming Militias, and the Second Amendment". Originally published as 26 Val. U. L.Rev. 131-207, 1991). Earlier, in The Pennsylvania Gazette, Feb. 20, 1788, while the states were considering ratification of the Constitution, Tench Coxe wrote:

Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are

the birth-right of an American

...The unlimited power of the sword is not in the hands of either the

federal or state governments

but, where I trust in God it will ever remain,

in the hands of the people

.

...in an article titled, "To Keep and Bear Arms" (The New York Review of Books, September 21, 1995), writes, "[g]un advocates read 'to keep and bear' disjunctively, and think the verbs refer to entirely separate activities. 'Keep,' for them means 'possess personally at home'--a lot to load into one word. To support this entirely fanciful construction, they have to neglect the vast literature on militias." (Emphasis added.)

What's fanciful is Wills' hypothesis. It is certainly plausible to claim a phrase means something different from each of its individual words separately. (It's especially tempting when one doesn't like the implications of the words taken at their plain meaning.) However, in this case, Wills ignores the vast body of contrary evidence and offers nothing credible to support his claim.

Wills writes, "To understand what 'keep' means in a military context, we must recognize how the description of a local militia's function was always read in contrast to the role of a standing army." Armies were not kept-up or left standing, militias were kept in readiness. This is true, however unfortunately for Wills, "keep" modifies arms in the Second Amendment, not the well-regulated militia, and as one can see from the examples above, keeping arms in a military contex, when referring to the right of the people, means to personally keep. The people's right to keep arms was guaranteed, against infringement by the federal government, to ensure that the militia could be kept-up.

Summarizing how militias operated in England, and quoting at length from an essay written by Englishman John Trenchard, in 1697 (yes, 1697), Wills tries to draw a parallel between the English and American systems by quoting from the Articles of Confederation:

"[E]very state shall always

keep up

a well regulated and disciplined militia, sufficiently

armed

and accoutered, and shall

provide and constantly have ready for use, in public stores

, a due number of field pieces and tents, and a proper quantity of arms, ammunition and equipage."

He continues, "Thus it is as erroneous to suppose that 'keep' means, of itself, 'keep at home.'" "Keep-up" modifies militia. To repeat again (since Wills makes the same mistake), the meaning of the word keep will of course vary depending on its context and what it modifies. "Keep" in and of itself will not always mean "keep at home" or more precisely keep as an individual. And neither does the fact that the colonies or states had public arsenals imply the right of the people to keep and bear arms is protecting a right to keep arms publicly rather than private arms. The Articles of Confederation provision, which directs the states to provide a "proper" amount of arms is constructed quite differently from the Second Amendment which is meant to preserve the right of the people to keep arms. Wills also tells us that it is erroneous to assume "'arms' means only guns: As Patrick Henry tells us, the militia's arms include 'regimentals, etc.'--the flags, ensigns, engineering tools, siege apparatus, and other 'accoutrements' of war." Wills has twisted Patrick Henry's statement that refers to arms and equipment in a desparate attempt to show the Founders could not have intended the keeping of arms to be a personal, private right. (For a quote that not even Wills could twist, see Roger Sherman's comment above, which refers to arms. ("There are so few freemen in the United States who are not able to provide themselves with arms and accoutrements...")

"In America, 'deposition' of arms from the proper hands occurred, most famously, when the King's troops seized the militia's arsenals at Concord in the north and at Williamsburg in the south. That is where arms were kept, lodged, maintained." Again, more twisting from Wills. The historical record suggests otherwise.

There were few arms stored publicly at Concord. Most were privately held, but significant provisions for food, ammunition and powder, and a small number of cannon, were stockpiled in public storage. (See Lemuel Shattuck [hereinafter Shattuck], "A history of the town of Concord, Middlesex County, Massachusetts." Reprint, The Printery [1971]. Originally published: Russel, Odiorne, and Co.; Concord: J. Stacy, 1835. Pp. 93-99.) Shattuck (p. 99) also writes, "The excitement was so great that some carried their guns with them at all times, even while attending public worship on the Sabbath."

Wills concludes, "To separate one term from this context and treat it as specifying a different right (of home possession) is to impart into the language something foreign to each term in itself [emphasis added], to the conjuction of terms, and to the entire context of" the Second Amendment.

Just the quotes from this page, contradict Wills' conclusion, and show that "keeping arms," within the context of the Second Amendment, refers to a private right to possess and own arms in one's dwelling. Also one can see that "arms" signified personal arms such as firearms and swords. Wills musters only one quote that mentions keeping arms (in a parish!) from a late-17th century essay on English militias. The keeping of arms by the people, as individuals, was either encouraged or mandatory for militia members, potential members, and served as an additional source of arms for the militia during emergencies.

Impressment

The CPHV's brief, cited above continues, "Even during the American Revolution, Connecticut and North Carolina impressed firearms without hesitation (citations omitted). Consistently, individual gun possession yielded to collective needs."

In emergencies, guns were impressed, but so were many other items as well as people (not just solidiers). (See The Statutes at Large, Being a Collection of All the Laws of Virginia, vol. 7, pp. 26-7, The Public Records of the Colony of Connecticut, vol. 10, pp. 479-80. Also, "In times of emergency, the law [of South Carolina] allowed the impressment of supplies, vessels, wagons, provisions, supplies of war, ammunition and gunpowder and such other items as the militia might require. If ships of any description were required, their pilots and sailors could be impressed." [Whisker, James, Militia Treatises, vol. 5])

In emergencies (whether real or perceived) our government occasionally resorts to extreme measures such as impressment, or restrictions on civil rights. A more recent example is the "day of infamy" where Americans of Japanese descent were ordered excluded from the West Coast (Korematsu v. United States, 323 U.S. 21 (1944). See also, Hirabayashi v. United States, 320 U.S. 81 (1943), upholding earlier curfew applying to American citizens of Japanese descent). In emergencies, the right to keep arms has no more "yielded to collective needs" than many other individual rights.

After examining the text, laws and customs of the time, and the words of the Founders and their contemporaries, the narrowest plausible reading of the Second Amendment is that it was meant to preserve and guarantee an individual right for a collective purpose. (That does not transform the right into a "collective right" or the right of a "collective.") The militia clause was a declaration of that purpose, and the clause following was the method the framers chose to, in-part, ensure the continuation of a well-regulated militia.

[DerickM 1]

Since When has the ACLU become responsible for making and interpreting the law? Funny, I thought it was the judicial branch of the government that was supposed to do that.

Oh, I can quote also:

In his popular edition of Blackstone's Commentaries on the Laws of England (1803), St. George Tucker (see also), a lawyer, Revolutionary War militia officer, legal scholar, and later a U.S. District Court judge (appointed by James Madison in 1813), wrote of the Second Amendment:

The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government.

In the appendix to the Commentaries, Tucker elaborates further:

This may be considered as the true palladium of liberty... The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

Not only are Tucker's remarks solid evidence that the militia clause was not intended to restrict the right to keep arms to active militia members, but he speaks of a broad right – Tucker specifically mentions self-defense. "Because '[g]reat weight has always been attached, and very rightly attached, to contemporaneous exposition,' the Supreme Court has cited Tucker in over forty cases. One can find Tucker in the major cases of virtually every Supreme Court era." (Source: The Second Amendment in the Nineteenth Century)

(William Blackstone was an English jurist who published Commentaries on the Laws of England, in four volumes between 1765 and 1769. Blackstone is credited with laying the foundation of modern English law and certainly influenced the thinking of the American Founders.)

Another jurist contemporaneous to the Founders, William Rawle, authored "A View of the Constitution of the United States of America" (1829). His work was adopted as a constitutional law textbook at West Point and other institutions. In Chapter 10 he describes the scope of the Second Amendment's right to keep and bear arms:

The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give 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.

This is another quote where it is obvious that "the people" refers to individuals since Rawle writes neither the states nor the national government has legitimate authority to disarm its citizens. This passage also makes it clear ("the prohibition is general") that the militia clause was not intended to restrict the scope of the right. (In 1791 William Rawle was ppointed United States Attorney for Pennsylvania by President George Washington, a post he held for more than eight years.) Yet another jurist, Justice Story (appointed to the Supreme Court as an Associate Justice by James Madison in 1811), wrote a constitutional commentary in 1833 ("Commentaries on the Constitution of the United States"). Regarding the Second Amendment, he wrote (source):

The next amendment is: "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 importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

As the Tennessee Supreme Court in Andrews v. State (1871) explains, this "passage from Story, shows clearly that this right was intended, as we have maintained in this opinion, and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights." Story adds:

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

Story laments the people's lack of enthusiasm for maintaining a well-regulated militia. However, some anti-gun rights advocates misinterpret this entire passage as being "consistent with the theory that the Second Amendment guarantees a right of the people to be armed only when in service of an organized militia." (See Arms, Anarchy and the Second Amendment for an example of reaching that conclusion by committing a non-sequitur.) The need for a well-regulated militia and an armed citizenry are not mutually exclusive, nor was the right to have arms considered dependent on membership in an active militia (more on that later). Rather, as illustrated by Tucker, Rawle, and Story, the militia clause and the right to arms were intended to be complementary.

More Evidence Supporting an Individual Right

After James Madison's Bill of Rights was submitted to Congress, Tench Coxe (see also: Tench Coxe and the Right to Keep and Bear Arms, 1787-1823) published his "Remarks on the First Part of the Amendments to the Federal Constitution," in the Federal Gazette, June 18, 1789 He asserts that it's the people (as individuals) with arms, who serve as the ultimate check on government:

As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their

private

arms.

"A search of the literature of the time reveals that no writer disputed or contradicted Coxe's analysis that what became the Second Amendment protected the right of the people to keep and bear 'their private arms.' The only dispute was over whether a bill of rights was even necessary to protect such fundamental rights." (Halbrook, Stephen P. "The Right of the People or the Power of the State Bearing Arms, Arming Militias, and the Second Amendment". Originally published as 26 Val. U. L.Rev. 131-207, 1991). Earlier, in The Pennsylvania Gazette, Feb. 20, 1788, while the states were considering ratification of the Constitution, Tench Coxe wrote:

Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are

the birth-right of an American

...The unlimited power of the sword is not in the hands of either the

federal or state governments

but, where I trust in God it will ever remain,

in the hands of the people

.

...in an article titled, "To Keep and Bear Arms" (The New York Review of Books, September 21, 1995), writes, "[g]un advocates read 'to keep and bear' disjunctively, and think the verbs refer to entirely separate activities. 'Keep,' for them means 'possess personally at home'--a lot to load into one word. To support this entirely fanciful construction, they have to neglect the vast literature on militias." (Emphasis added.)

What's fanciful is Wills' hypothesis. It is certainly plausible to claim a phrase means something different from each of its individual words separately. (It's especially tempting when one doesn't like the implications of the words taken at their plain meaning.) However, in this case, Wills ignores the vast body of contrary evidence and offers nothing credible to support his claim.

Wills writes, "To understand what 'keep' means in a military context, we must recognize how the description of a local militia's function was always read in contrast to the role of a standing army." Armies were not kept-up or left standing, militias were kept in readiness. This is true, however unfortunately for Wills, "keep" modifies arms in the Second Amendment, not the well-regulated militia, and as one can see from the examples above, keeping arms in a military contex, when referring to the right of the people, means to personally keep. The people's right to keep arms was guaranteed, against infringement by the federal government, to ensure that the militia could be kept-up.

Summarizing how militias operated in England, and quoting at length from an essay written by Englishman John Trenchard, in 1697 (yes, 1697), Wills tries to draw a parallel between the English and American systems by quoting from the Articles of Confederation:

"[E]very state shall always

keep up

a well regulated and disciplined militia, sufficiently

armed

and accoutered, and shall

provide and constantly have ready for use, in public stores

, a due number of field pieces and tents, and a proper quantity of arms, ammunition and equipage."

He continues, "Thus it is as erroneous to suppose that 'keep' means, of itself, 'keep at home.'" "Keep-up" modifies militia. To repeat again (since Wills makes the same mistake), the meaning of the word keep will of course vary depending on its context and what it modifies. "Keep" in and of itself will not always mean "keep at home" or more precisely keep as an individual. And neither does the fact that the colonies or states had public arsenals imply the right of the people to keep and bear arms is protecting a right to keep arms publicly rather than private arms. The Articles of Confederation provision, which directs the states to provide a "proper" amount of arms is constructed quite differently from the Second Amendment which is meant to preserve the right of the people to keep arms. Wills also tells us that it is erroneous to assume "'arms' means only guns: As Patrick Henry tells us, the militia's arms include 'regimentals, etc.'--the flags, ensigns, engineering tools, siege apparatus, and other 'accoutrements' of war." Wills has twisted Patrick Henry's statement that refers to arms and equipment in a desparate attempt to show the Founders could not have intended the keeping of arms to be a personal, private right. (For a quote that not even Wills could twist, see Roger Sherman's comment above, which refers to arms. ("There are so few freemen in the United States who are not able to provide themselves with arms and accoutrements...")

"In America, 'deposition' of arms from the proper hands occurred, most famously, when the King's troops seized the militia's arsenals at Concord in the north and at Williamsburg in the south. That is where arms were kept, lodged, maintained." Again, more twisting from Wills. The historical record suggests otherwise.

There were few arms stored publicly at Concord. Most were privately held, but significant provisions for food, ammunition and powder, and a small number of cannon, were stockpiled in public storage. (See Lemuel Shattuck [hereinafter Shattuck], "A history of the town of Concord, Middlesex County, Massachusetts." Reprint, The Printery [1971]. Originally published: Russel, Odiorne, and Co.; Concord: J. Stacy, 1835. Pp. 93-99.) Shattuck (p. 99) also writes, "The excitement was so great that some carried their guns with them at all times, even while attending public worship on the Sabbath."

Wills concludes, "To separate one term from this context and treat it as specifying a different right (of home possession) is to impart into the language something foreign to each term in itself [emphasis added], to the conjuction of terms, and to the entire context of" the Second Amendment.

Just the quotes from this page, contradict Wills' conclusion, and show that "keeping arms," within the context of the Second Amendment, refers to a private right to possess and own arms in one's dwelling. Also one can see that "arms" signified personal arms such as firearms and swords. Wills musters only one quote that mentions keeping arms (in a parish!) from a late-17th century essay on English militias. The keeping of arms by the people, as individuals, was either encouraged or mandatory for militia members, potential members, and served as an additional source of arms for the militia during emergencies.

Impressment

The CPHV's brief, cited above continues, "Even during the American Revolution, Connecticut and North Carolina impressed firearms without hesitation (citations omitted). Consistently, individual gun possession yielded to collective needs."

In emergencies, guns were impressed, but so were many other items as well as people (not just solidiers). (See The Statutes at Large, Being a Collection of All the Laws of Virginia, vol. 7, pp. 26-7, The Public Records of the Colony of Connecticut, vol. 10, pp. 479-80. Also, "In times of emergency, the law [of South Carolina] allowed the impressment of supplies, vessels, wagons, provisions, supplies of war, ammunition and gunpowder and such other items as the militia might require. If ships of any description were required, their pilots and sailors could be impressed." [Whisker, James, Militia Treatises, vol. 5])

In emergencies (whether real or perceived) our government occasionally resorts to extreme measures such as impressment, or restrictions on civil rights. A more recent example is the "day of infamy" where Americans of Japanese descent were ordered excluded from the West Coast (Korematsu v. United States, 323 U.S. 21 (1944). See also, Hirabayashi v. United States, 320 U.S. 81 (1943), upholding earlier curfew applying to American citizens of Japanese descent). In emergencies, the right to keep arms has no more "yielded to collective needs" than many other individual rights.

After examining the text, laws and customs of the time, and the words of the Founders and their contemporaries, the narrowest plausible reading of the Second Amendment is that it was meant to preserve and guarantee an individual right for a collective purpose. (That does not transform the right into a "collective right" or the right of a "collective.") The militia clause was a declaration of that purpose, and the clause following was the method the framers chose to, in-part, ensure the continuation of a well-regulated militia.

[anonemouse 1]

Since When has the ACLU become responsible for making and interesting the law? Funny, I thought it was the judicial branch of the government that was supposed to do that.

Oh, I'm not going by what the ACLU says. I just posted that because it was convenient. The fact is, the Supreme Court agrees with them. Or is it the other way around, the ACLU agreeing with the Supreme Court? If the Second Amendment applied to individuals and not state militias, everyone would be allowed to own any type of arms that they could buy. They can't. Last time I checked, it was illegal to buy a nuclear weapon, even if I could afford one.

U.S. v. Warin (6th Circuit, 1976)

Unless the Constitution protects the individual's right to own all kinds of arms, there is no principled way to oppose reasonable restrictions on handguns, Uzis or semi-automatic rifles.

If indeed the Second Amendment provides an absolute, constitutional protection for the right to bear arms in order to preserve the power of the people to resist government tyranny, then it must allow individuals to possess bazookas, torpedoes, SCUD missiles and even nuclear warheads, for they, like handguns, rifles and M-16s, are arms. Moreover, it is hard to imagine any serious resistance to the military without such arms. Yet few, if any, would argue that the Second Amendment gives individuals the unlimited right to own any weapons they please. But as soon as we allow governmental regulation of any weapons, we have broken the dam of Constitutional protection. Once that dam is broken, we are not talking about whether the government can constitutionally restrict arms, but rather what constitutes a reasonable restriction.

The 1939 case U.S. v. Miller is the only modern case in which the Supreme Court has addressed this issue. A unanimous Court ruled that the Second Amendment must be interpreted as intending to guarantee the states' rights to maintain and train a militia. "In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than 18 inches in length at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument," the Court said.

In subsequent years, the Court has refused to address the issue. It routinely denies cert. to almost all Second Amendment cases. In 1983, for example, it let stand a 7th Circuit decision upholding an ordinance in Morton Grove, Illinois, which banned possession of handguns within its borders. The case, Quilici v. Morton Grove 695 F.2d 261 (7th Cir. 1982), cert. denied 464 U.S. 863 (1983), is considered by many to be the most important modern gun control case.

You can say, "well, the Supreme Court is going to eventually reverse these rulings" all you want to. The fact is, they haven't yet. As of right now, the legal precedent of the Supreme Court says that the government (whether state or national) has the right to regulate guns.

[BJean 16]

We NEED the ACLU. It may be offensive to us from time to time, but it is an important organization. They provide some checks and balances that help keep us awake when we're asleep at the wheel. They don't discriminate. They only get involved when someone's rights are being abridged. And it can be anyone's rights. That's the beauty of it. You don't have to endorse the actions or beliefs of everyone that they try to help, but you should be glad that there is an organization of people who take our right to being treated equally in this country, very seriously.

[anonemouse 1]

still, under the notion of 'free speech' which promoted criminal sex crimes with minors is not one of their finest hours regardless of how they package it.

Yes, it is, actually. You see, they are standing up for the spirit of the law. Free speech means nothing if only the people that have agreeable messages can use it.

[anonemouse 1]

You want to be able to discriminate and violate the Constitution, Jack, and yet you still want your Second Amendment rights (ignoring the fact that the Supreme Court disagrees with you about what those rights are). Don't you see the irony there?

There are lots of groups that have long held socially defined, religiously oriented, or gender ID requirements.

And the fact is, if they are accepting government funding, they have to play by the government's rules. And that means no discrimination.

[BJean 16]

You have a very limited understanding of what the ACLU is trying to achieve. They aren't trying to "package" an argument to promote sex crimes against minors, no matter how much you'd like to believe that. Just because a sex crime against a minor is such a horrible emotionally charged crime, it doesn't mean that they are trying to excuse the crime when they get involved. That is a very narrow view of the entire proceeding and one that people like to trot out to make ACLU seem like a bunch of preverts themselves. If you don't get it, I suggest you read the cases a little closer and stop buying into the idea that if you protect all peoples' rights, you're also buying into their crimes.

It reminds me of the same negative viewpoints I have read and hear about regarding defense attorneys. If you really do not understand why it is important for these people to protect the accused rights in the courtroom, check out the latest list of over 200 individuals on death row who were convicted of crimes they did not commit. Those are just the capital offenses, dude. Think about all of the other convictions in this country every day where there may be cases of people's rights being abridged. God forbid you should be identified as a perpetrator of a crime and you find that you have no alibi.

[anonemouse 1]

Jack, I think I am going to take a page from BJean's book (from another thread). Feel free to respond to any of my posts, but I won't be seeing them.

[TxArcher 2]

Apples and oranges.

How about this....in Great Britain, where private ownership of guns is forbidden, the crime rate is no higher than in the USA. So the when-guns-are-outlawed-only-outlaws-will-have-guns argument has been disproved, hasn't it?

Their crime rates were low to start with. After gun control laws, their crime rates jumped up! That it happens to be the same crime rate as USA is coincidence. You have to look at where they started.

England: According to the BBC News, handgun crime in the United Kingdom rose by 40% in the two years after it passed its draconian gun ban in 1997.

[kagoscuba 0]

my gun-lovnig buddy thinks I am a facist, but here was my suggestion:

1. Let people buy ANY gun they want to up to .50 caliber, including automatics, if they can pass class III muster.

2. Every gun must be registered (just like now), and EVERY gun sold or transferred ownership (like parent to child) must be witnessed by a certified gun-shop owner or something like a gun-notary.

3. Any person caught in possession of an unregistered firearm is considered a domestic terrorist and will be punished severely to include the death penalty, if they commit a felony while in possession of an illegal firearm.

4. Any person caught selling or importing unregistered firearms will be classified a domestic terrorist and will suffer severe penalties.

5. Right to carry permits must be allowed in all 50 states and this includes NJ too. In addition, if states refuse to offer right to carry permits (without stupid rules like NJ), there will be a stipulation that any person who is killed by an illegal firearm in that state and they did not have the right to protect themselves, the state is required to pay the estate of the deceased $10m. If common sense won't make them do the right thing, money certainly will.