Court agrees to rule on gun case

Tuesday, November 20th, 2007 1:02 pm | Lyle Denniston | Print This Post

FINAL UPDATE 3:20 p.m.

After a hiatus of 68 years, the Supreme Court on Tuesday agreed to rule on the meaning of the Second Amendment — the hotly contested part of the Constitution that guarantees “a right to keep and bear arms.” Not since 1939 has the Court heard a case directly testing the Amendment’s scope — and there is a debate about whether it actually decided anything in that earlier ruling. In a sense, the Court may well be writing on a clean slate if, in the end, it decides the ultimate question: does the Second Amendment guarantee an individual right to have a gun for private use, or does it only guarantee a collective right to have guns in an organized military force such as a state National Guard unit?

The city of Washington’s appeal (District of Columbia v. Heller, 07-290) seeking to revive its flat ban on private possession of handguns is expected to be heard in March — slightly more than a year after the D.C. Circuit Court ruled that the Second Amendment right is a personal one, at least to have a gun for self-defense in one’s own home. (The Court took no action on Tuesday on a conditional cross-petition, Parker, et al., v. District of Columbia, 07-335, an appeal by five District residents seeking to join in the case. The absence of any action may mean that the Court has decided not to hear that case. If that is so, it will be indicated in an order next Monday. The Court also may simply be holding the case until it decides the Heller case.)

The Justices chose to write out for themselves the constitutional question they will undertake to answer in Heller. Both sides had urged the Court to hear the city’s case, but they had disagreed over how to frame the Second Amendment issue.

Here is the way the Court phrased the granted issue:

“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

The first listed section bars registration of pistols if not registered before Sept. 24, 1976; the second bars carrying an unlicensed pistol, and the third requires that any gun kept at home must be unloaded and disassembled or bound by a lock, such as one that prevents the trigger from operating.

The Court did not mention any other issues that it might address as questions of its jurisdiction to reach the ultimate question: did the one individual who was found to have a right to sue — Dick Anthony Heller, a D.C. resident — have a right to challenge all three of the sections of the local law cited in the Court’s order, and, is the District of Columbia, as a federal enclave, even covered by the Second Amendment. While neither of those issues is posed in the grant order, the Court may have to be satisfied that the answer to both is affirmative before it would move on to the substantive question about the scope of any right protected by the Amendment.

The D.C. Circuit ruled that the Amendment does apply to the District because of its federal status, subject to all provisions of the Constitution. At this point, therefore, it appears that the Court’s review may not reach a major question — does the Second Amendment also protect individual rights against state and local government gun control laws? But a ruling by the Court recognizing an individual right to have a gun almost surely would lead to new test cases on whether to extend the Amendment’s guarantee so that it applied to state and local laws, too. The Court last confronted that issue in Presser v. illinois, in 1886, finding that the Amendment was not binding on the states.

Some observers who read the Court’s order closely may suggest that the Court is already inclined toward an “individual rights” interpretation of the Second Amendment. That is because the order asks whether the three provisions of the D.C. gun control law violate “the Second Amendment rights of individuals.” But that phrasing may reveal very little about whether the Amendment embraces an individual right to have a gun for private use. Only individuals, of course, would be serving in the militia, and there is no doubt that the Second Amendment provides those individuals a right to have a gun for that type of service. The question the Court will be deciding is, if there are individuals who want to keep pistols for use at home, does the Second Amendment guarantee them that right. Just because the Second Amendment protects some individual right does not settle the nature of that right.

One of the interesting subsets of the question the Court will be confronting is whether the 1939 case of U.S. v. Miller is a precedent for what the Second Amendment means — individual or collective right. If that decision did find in favor of a collective right, the current Court would have to decide whether this was a binding precedent, or whether it should be overruled. Chief Justice John G. Roberts, Jr., has already taken a stand on that question. At his nomination hearing before the Senate Judiciary Committee, he said that “the Miller case sidestepped” the issue of whether the Amendment protected a collective or an individual right. He added: “An argument was made back in 1939 that this provides only a collective right, and the Court didn’t address that….So people try to read into the tea leaves about Miller and what would come out on this issue, but that’s still very much an open issue.”

The local law at issue in Heller has been discussed widely as a sweeping ban on private possession or use of handguns. But the Court order granting review took it a step further: the one section that will be at issue that goes beyond handguns is the provision that requires that any gun kept at home be unloaded and disassembled, or at least be locked. Thus, that provision also applies to rifles and shotguns kept at home, in terms of whether those weapons would remain “functional” in time of emergency if that provision were upheld. That part of the order appeared to widen the inquiry in a way that the local residents who challenged the law had wanted.

Additional grants on Tuesday:

The Court also granted review on Tuesday of the question of whether federal labor law bars a state from forbidding a company that receives state funds from using any of those funds to speak out on issues in bargaining with a labor union. That case is U.S. Chamber of Commerce, et al., v. Brown, et al. (06-939). The U.S. Solicitor General, asked by the government for its views on the case, urged that review be granted. At least 16 states have laws or are considering laws like the one in California at issue in the case.

The Court also said on Tuesday that it will hear an appeal by Alabama’s governor, Bob Riley, in a voting rights case — but will not necessarily decide the merits of the appeal. The Court postponed the question of its jurisdiction until its hearing on the case of Riley v. Kennedy, et al. (07-77). That means the Justices will, indeed, hear oral argument, but will focus part of that argument on whether the case is properly before them. The other side in the case contended in its response that the state officials waited too long to file their appeal, thus depriving the Court of jurisdiction.

The merits issue raised by the governor is whether rulings by state Supreme Courts on the meaning of state or local election law do bring about the kind of changes in voting rights that must first get federal clearance before going into effect — for those states and local jurisdictions that are covered by the pre-clearance requirement of the Voting Rights Act’s Section 5.

These other two cases, like Heller, are likely to be scheduled for argument in the March sitting that begins on Mar. 17.

156 Comments »

And just last week we were talking about: “Supreme Court takes no action to consider the political and social implications of doing the right thing.”

Good work to hear this case. Of course if it is considered a collective right then all the other rights will have to be considered collective as well (such as the 1st Amend, etc). After all the Founding Fathers were all about the individual …………..

Comment by Dan Passaro — November 20, 2007 @ 1:35 pm
The shot heard ’round the world was not fired in vain! To quote General John Stark, “As I was then, I now am, the friend of the equal rights of men, of representative democracy, of republicanism…and of course a friend to the indissoluble union of these States. I am the enemy of all foreign influence…the influence of tyranny. This is the only chosen spot of liberty–this the only republic on earth.” If the Supreme Court Justises know history, and I bet they do, the good guys have won again! The Bill of Rights is about individual freedoms, not prohibitions!!!

Comment by Dr. John D. Polt — November 20, 2007 @ 1:38 pm
What never ceases to amaze me is that people who argue for all sorts of expansive rights usually are the same ones who take a penurious approach to the Second Amendment, which, on its face, doesn’t allow the infringement of the right to keep and bear arms.

The militia argument has always seemed a canard to me. A law is almost never coterminous with the purpose it serves. So why is it that a categorical imperative here?

Comment by Sean O'Brien — November 20, 2007 @ 1:49 pm
I’ve written this a hundred times already, but the “D.C. is not a state” angle to DC v. Heller has always nagged at me. I get the feeling, based on the question presented for argument, that the Court is disinterested in that nuance and is going for a home run ruling, but still … *frets*

Comment by David Huberman — November 20, 2007 @ 1:54 pm
But couldn’t one argue that the “free state,” referred to is not the same as the “State(s),” referred to in the sixth and tenth amendments? It seems to refer more generally to a principle–a state (nation, republic, any other synonym you’d like to put here for clarity) free from tyranny, rather than a State needing to maintain its own militia. In that sense, it seems that whatever the amendment means, it has to apply to the entire nation, regardless of whether D.C. is a “State.”

Comment by Mortez Jackson — November 20, 2007 @ 2:10 pm
I just realized that both versions of the amendment–one with state capitalized and one without–are often used. Does anyone else think it makes much of a difference?

Comment by Mortez Jackson — November 20, 2007 @ 2:16 pm
Perhaps the “not affiliated with any state-regulated militia” wording reflects an early split between factions on the court, with some believing that the 2A applies only to members of an organized militia, and others believing that it applies more generally. Phrasing the question in the way they did gives both sides room to hear the appeal and rule consistently with his or her respective position.

Comment by Robert P. Firriolo — November 20, 2007 @ 2:16 pm
Lyle, when you write, “the hotly contested part of the Constitution that guarantees ‘a right to keep and bear arms’,” you prejudice the issue. What the constitution guarantees is “the right of the people to keep and bear arms.”

Comment by Munango-Keewati — November 20, 2007 @ 2:20 pm
More importantly, “the people” is a very distinct term in the Constitution from “the states”.

No one would argue the right of the people to petition the government for redress of grievances applies to state officials but not to individuals acting on their own.

Similarly, the rights to general free speech, religion, privacy and so on, rights reserved to “the people” are held not to be rights of state governments against the federal, but rights of the people against the nation.

Comment by Mickey Klein — November 20, 2007 @ 2:39 pm
This may seem a little militant. However, with the government attempting to exert even more control; we americans need to stand up. We need to quit watching ‘anerican idol’ and begin to pay attention to what’s really going on. When the time comes, and the government is knocking on your door to take your stuff, confiscate the rest of your freedom, and you’re left wondering what just happened, you’ll have no one to blame but yourselves. My own belief is the time is sooner than peopl think. I WILL stand for my freedoms. I am my own sovereign entity, as are everyone else in this country. And I will fight or die for it, period.

Comment by josh robison — November 20, 2007 @ 2:43 pm
The framing of the questions seems to indicate that individuals not affiliated with militias have rights under the second amendment and the issue is whether these laws violate those rights

Comment by Bill Primm — November 20, 2007 @ 2:44 pm
I don’t believe that D.C.’s non-state status is an issue. The core issue is whether the right to keep and bear firearms is a fundamental right applicable to citizens, as incorporated by the 14th Amendment. The distinction between “the people” and a “well regulated militia” is not going to be a determining factor, since Sup.Ct. jurisprudence has firmly established that “the people” (in the Bill of Rights) belongs to individuals, not to larger entities. Thus, when the Framers wanted to refer to “the State,” they called it the State (9th and 10th Amendments). But for crafting an opinion, I think that the law clerks better get real busy studying the underlying history that separates crew-served weapons and “specialty” weapons (like grenades)from the types of weapons that the Framers (or at least the Anti-Federalists) embraced.

Comment by Robert De La Cruz — November 20, 2007 @ 2:46 pm
Oh, and don’t forget, the oaths we took as military personell. To defend and protect the constitution and our country against ALL enemies, both foreign and DOMESTIC. Why do we even allow a man to remain in office, who is clearly tyrannical, and power hungry. And justifies his own breaking of the laws, by using terrorism as an aliby? A man who has called OUR constitution a “Goddamn peice of paper”. C’mon people it’s not the way things are written that are the problem. It’s what we as a people do with them, and unfortunately lately its been what we don’t do…

Comment by josh robison — November 20, 2007 @ 2:51 pm
George Washington himself during the 2nd Session of Congress:

“Firearms stand next in importance to the Constitution itself. They are the American people’s liberty, teeth and keystone under independence. The church, the plow, the prairie wagon and the citizen’s firearms are indelibly related. From the hour the pilgrims landed to the present day, events, occurrences and tendencies prove that, to ensure peace, security and happiness, the rifle and pistol are equally indispensable. Every corner of this land knows firearms, and more than 99 and 99/100 percent of them by their silence indicate that they are in safe and sane hands. The very atmosphere of firearms anywhere and everywhere restrains evil influence. They deserve a place of honor with all that’s good. When firearms go, all goes. We need them every hour.”

Comment by Ron Bokleman — November 20, 2007 @ 2:51 pm
One should not read into spelling, punctuation, or capitalization when interpreting documents from the Founding Era. The rules for those were not hard and fast, but varied from individual to individual.

Comment by David Lawson — November 20, 2007 @ 2:53 pm
I pray that intellectual honesty and an understanding of the framers of the Constitution win out over partisan thinking and terrible social engineering.
The right of the people shall not be infringed.
May God bless Americe for centuries to come.

Comment by William Lewis — November 20, 2007 @ 2:59 pm
Do we know how many and which judges voted for certiorari?

Comment by Kevin Pinto — November 20, 2007 @ 3:16 pm
Forecasted outcome: The first and third provision cited violate the strictures of the Second Amendment to the Constitution. The second, that prohibition on the carriage of a firearm, MAY be found sufficiently cloaked in the police powers as to be valid, but I don’t know the full context. It may be that this provision will be in de minimus violation and that it may be made valid when redrafted to conform to the courts opinion on the first and third provisions.

But, I don’t want to count the chickens just yet.

Comment by Mike Coster — November 20, 2007 @ 3:17 pm
The 2nd has variations of capitalization and punctuation (some versions have but one comma), depending upon whether the engrossed version or state ratifications are read. Everything was hand copied then.

Comment by David Hardy — November 20, 2007 @ 3:27 pm
Finally, perhaps, a breath of life for the Ninth Amendment, in an inversely logical sort of way. If “the people” have a right to bear arms, then the Constitution cannot be read to deny that right by a reading of the Second Amendment that would hold that only “well-regulated militia” have that right; especially since that “right of the people” is explicitly stated in the latter part of the Second Amendment. One cannot read the Constitution to deny the right of “the people” to bear arms by referencing the enumerated right of a well-regulated militia.

Nothwithstanding that D.C. is not a “State”; although, this could prohibit a helping hand from the Tenth Amendment.

I wish I could argue this case for the NRA.

Comment by Carson J. Tucker — November 20, 2007 @ 3:30 pm
At the close of the 3 week Pennsylvania ratification convention on 12 Dec 1787, the Minority presented one of the first articulations of a Bill of Rights. Their proposal was ignored by the Majority and the body ratified the “new plan” on the same day. Point number seven of the Minority’s list regarded the right to keep and bear arms.

“7. That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people public injury are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil power.”

The Minority published a slightly different version 6 days later in the Pennsylvania Packet.

“7. That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers.”

This first draft of the Bill of Rights includes the “right to bear arms for the defense of themselves and their own state” and “no law shall be passed for disarming the people.” The second draft, later published in the newspaper, included no disarming of the people “unless for crimes committed, or real danger of public injury from individuals.”

These proposals were not adopted and made into law, but they acted as a foundation for later arguments. The later debates in Congress may have changed the meaning of these first drafts. I cannot comment on Congress’ debates because I have yet to read them. The debates may have changed the initial articulation into only arming a militia, but my impression is that was not the case.

Alexander J. Dallas’ Notes of the Pennsylvania Ratification Convention P.M. (December 12, 1787)
http://www.consource.org/index.asp?bid=582&fid=600&documentid=2051

The Dissent of the Minority of the Pennsylvania Convention (December 18, 1787)
http://www.consource.org/index.asp?bid=582&fid=600&documentid=851

Bill of Rights Legislative History Collection
http://www.consource.org/index.asp?bid=530&groupid=30

Comment by Eleesha Tucker — November 20, 2007 @ 3:35 pm
I suspect that the U.S. Supreme Court will punt in a unanimous, or near unanimous opinion.

I suspect that it will assuming arguendo, without deciding the question, that District of Columbia residents are protected by the Second Amendment, and that gun ownership is an individual right that does not require state militia membership.

I suspect that it will then reason that a requirement that pistols purchased after a certain date be registered, and that pistols be trigger locked or disassembled at home, is not a violation of the right to bear arms. They will reach this conclusion because the Second Amendment refers to a “well regulated” militia, which implies that the right to bear arms is subject, at least, to reasonable, non-prohibitive regulation. This is particularly likely with the second two ordinances.

I would expect to see Scalia or Thomas cited to some historical amicus brief describing the fact that in colonial times all adult males were considered part of the unorganized militia, a practice followed in most state constitutions, and describing a variety of state militia regulations in the 1790s which were expressly held in state courts to apply to members of the unorganized militia and which were more onerous than those in place in the District of Columbia right now.

I suspect that the guts of the decision, which may produce some concurring in result opinions, will be an analysis over whether the registration requirement amounts to a prohibition on the right to bear arms. The majority will likely find that on the evidence presented to the trial court it was not established that this was the case.

Alternately, it is quite possible that the court will punt on the question of whether a registration requirement amounts to a prohibition issue as well, remanding the question to the trial court to take additional evidence on the issue of whether or not the registration requirement amounts to ban on owning a gun.

Or, alternatively, it might establish a prohibition standard to trigger further analysis of other Second Amendment issues, under the “well regulated” exception, rule that, as applied, that a well regulated militia could bar this particular individual from owning a gun, and leave other analysis of the well regulated exception to another day.

Comment by ohwilleke — November 20, 2007 @ 3:36 pm
It seems that the Court has already decided that D.C.’s standing argument and the “D.C. is not a state” argument both lacked merit. That is not surprising. I was disappointed that the Court did not seek to re-examine the standing claims of the other plaintiffs. However, the justices may have decided that standing issues would only result in a lot of worthless beating around the bush. Might as well get to the red meat.

I still think it’s 7-2 for the individual rights view, with Justices Ginsburg and Stevens in dissent.

Comment by James N. Markels — November 20, 2007 @ 3:45 pm
The one aspect of today’s cert grant that is noteworthy is that the Court took a broader view of the question to be decided than did the Petitioner. In its petition, the District asked the Court to decide, “Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.” Thus, the District did not want to deal directly with the question of whether its regulation requiring stored long arms to be locked or broken down was constitutionally infirm. The Court, however, granted cert on the following question: “Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?” It is the third of these regulations that requires even long guns to be inoperable while stored in the home, thus rendering them useless for defense purposes. Thus, the Court seems more interested in undertaking a holistic review of the District’s gun policies than in limiting its review to laws pertaining to handguns only. Accordingly, the Court’s question seems closer to the one advanced by Respondent, which asked “[w]hether the Second Amendment guarantees lawabiding, adult individuals a right to keep ordinary, functional firearms, including handguns, in their homes.” Although I am not sure what to make of all of this, it does strike me that the Court is closer to reviewing the question presented by Respondent than the one offered by Petitioner. And, to the extent this suggests even a moderately greater chance that a portion of the District’s guns laws will be struck down (i.e. yes the 2 Amend protects individual right to bear arms subject to some regulation that would likely curtail concealed carry or allow firearm registration but not a total ban on keeping operable guns for self defense), that is a very encouraging sign.

Comment by Jay Sexton — November 20, 2007 @ 3:48 pm
ohwilleke, the registration requirement is not really at issue–D.C. law requires registration but does not allow registration of guns that weren’t already registered by 1976–in effect, making it impossible to legally own a handgun there.

It’s the militia that should be well regulated, not the people or the arms. But, of course, sophistry has no limit.

Comment by Munango-Keewati — November 20, 2007 @ 3:49 pm
Mortez Jackson: I don’t think the capitalization will matter in this case. The term “free state” and “State” probably refer to different things. Compare, for example, U.S. Constitution Article I, Section 10; Article IV, the 10th Amendment and the 11th Amendment.

The related issue which Heller will not address is whether the Second Amendment applies only to federal laws, or is incorporated through the 14th Amendment to apply to state laws as well.
The Supreme Court last faced that issue in 1886 in Presser v. Illinois, finding that the Amendment only applied to the federal government. As a result, any ruling in Heller will be limited in effect to the District of Columbia, federal territories, and federal gun control laws.

The Court may also pay attention to the 16th and 17th clauses of U.S. Constitution Article I, Section 8, which provide respectively for Congress to provide for “disciplining he militia” and for Congress to make “exclusive legislation in all cases” in the District of Columbia.

Even if the Second Amendment trumps the power of D.C. to regulate guns, the Supreme Court might hold that Congress has the power to enact similar legislation under its power to discipline the militia, that it can’t delegate to a territorial government or a D.C. city council.

Comment by ohwilleke — November 20, 2007 @ 3:51 pm
Munango-Keewati, point well taken, but it would still be quite possible (and even probable) for the Supreme Court to hold that a ban on pistols alone, as opposed to all arms, is reasonable regulation.

In the same way, most military forces and state militias limit the kinds of guns that soldiers are allowed to use. The active duty military, for example, prohibits soldiers from using certain brands of body armor in Iraq, and has rather elaborate regulations governing who can use which kind of weapon.

Indeed, U.S. v. Miller presented a very similar issue. Can a particular type of small arm (automatic weapons, IIRC) be banned by the federal government? This is something quite different from a prohibition on an individual owning any firearms.

Comment by ohwilleke — November 20, 2007 @ 3:59 pm
Mr. Heller is claiming a right to register himself as a gun owner. He got jurisdiction in this case because he was denied his application to be a *registered* gun owner (technically, he wants to expand the scope of his pre-existing registration).

If gun registration violated the second amendment, Mr. Heller would lose the case even if there was an individual right to keep and bear arms. If gun registration violated the second amendment, he would have no right to register himself and his gun, even if he had the right to keep and bear that gun.

Comment by Robert Hilton — November 20, 2007 @ 4:07 pm
Correction to ohwilleke: Miller established:

“The Court can not take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia; and therefore can not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”

I believe that this case was barely argued, because it would have been easy to establish that such a weapon does in fact relate to the efficiency of a well-regulated militia, it being a weapon that has been in common use by US military and police forces since well before Miller.

(For that matter, so have automatic weapons, although they were not at issue in Miller)

The same argument can of course be made for handguns, which are in universal use among military and police forces woldwide.

If the decision is for a broad individual right, it will still allow for reasonable regulation. The Districts law cannot be considered reasonable, since it is de facto prohibition, unless residents have access to a time machine…

Comment by John McEnerney — November 20, 2007 @ 4:42 pm
Mr. Hilton,

U.S. v. Miller was regarding a sawed-off shotgun. IIRC, the court found that because the defense had not made the argument that a sawed-off shotgun had a military purpose (Miller was dead at the time) there was insufficient justification for that class of weapon being prohibited from regulation.

I’m sure I’m mangling the exact legal argument. I don’t know much about law. I know a fair amount about guns, though.

(Hi James!)

Comment by Brian Hepler — November 20, 2007 @ 4:56 pm
Miller involved a sawed-off shotgun, not an automatic weapon. In today’s military, gorund forces regularly use shorter barrelled shotguns, and the finding, that Miller’s weapon was not useful for a military unit, might well not arise. At Miller’s time, most automatic weapons available would have qualified as “militia” weapons.

I think the “endorsement of a collective right” by Miller comes out of how the weapon was being evaluated, and as such had no bearing on an individual, human, right to self-defense.

On it’s merits, I don’t see the utility of Miller in defending the “collective right” thought, but I am not a lawyer.

Since I have however been stalked and threatened, which acquainted me with the sharp limits of police protection, I do hope for a strong endorsement of an individual right to effective self-defense which will be as vital now as when firearms are obsoleted.

Comment by Harry Schell — November 20, 2007 @ 5:36 pm
This case is an opportunity for the Court to right a wrong of a bygone era. The Miller case was nothing more than a one sided case to test the limits of FDR’s New Deal programs after his failed Court Packing Scheme. The rarely reported facts of Miller seldom are recounted, but Miller’s counsel was appointed to the State Senate before he could brief the case. Due to Miller’s dubious nature he was unavailable at the time of the argument before the Court and was unpresented.

Given that Miller was unrepresented and not even allowed to brief the Court, its not suprising that it was an 8-0 decision for FDR. Sadly, this mockery of the justice system for FDR’s partisan gains has been the defining gun control case for the last 70 years. Imagine the public outcry if Roe v. Wade was decided on such a sham of a proceding!?!?

For more on Miller please read:

http://www.kc3.com/pdf/PECULIAR_STORY_US_V_MILLER.pdf

Comment by Robert Foster — November 20, 2007 @ 6:48 pm
Consider that the words “well regulated” may have been used in a sense that was more common in those days. A “well regulated” clock was a clock that was “well functioning”, not “restricted by law” (the sense of the word “regulated” we are more familiar with these days). If the wording could be understood to have meant “A WELL FUNCTIONING militia, being necessary to the security of a free state”, perhaps we would be having an entirely different discussion today. Also note that this is a subordinate clause. The main clause “the right of the PEOPLE to keep and bear arms shall not be infringed” is written in plain (and quite terse) English that a person of average intelligence can understand and needs no interpretation.

Comment by Tom Ruggles — November 20, 2007 @ 7:53 pm
If I know Scalia, and I think I do, he will argue that there is an individual right for people to own the types of weapons typically used by militiamen in the 1790s, and that reasonable regulations on keeping them are okay, but that an effective prohibition on them is not okay.

Thomas will agree with Scalia, like he almost always does. So will Alito. Roberts will argue that there is an individual right to own any type of firearm that could have a reasonable relationship to use by a well-regulated militia, and he will also agree that reasonable regulations can be placed, but not an outright ban.

Ginsburg, Stevens, Souter, and Breyer will argue that Miller is precedent, and that the Second Amendment is a collective right.

What it really comes down to is what Kennedy thinks, and nobody knows. Since Kennedy seems to have respect for precedent, and he’s not usually a judicial activist, I tend to think he’ll side with Ginsburg, Stevens, Souter, and Breyer.

Comment by Christopher L. Ogden — November 20, 2007 @ 7:56 pm
As an attorney at law who has briefed and argued many constitutional issues, I always have interpreted the Second Amendment as follows: The people have a right to keep and bear arms, which shall not be infringed. Why? Because a well-regulated militia is necessary to the security of a free state. Who are “the people”? All of us, except those persons who have lost the right because of adjudicated mental incompetency or criminal conduct. What is “a well regulated militia”? A group of such people who, on short notice, can form themselves into an organized force, equipped with their personally-owned firearms, which they know how to employ effectively, for the purpose of providing the security, under the circumstances being faced, that is necessary for a free society. Why is such a militia necessary? Because there are governments, individuals, and groups of individuals who would deprive the people of a free society were there to be no such militia. How shall that militia be armed? With weapons sufficient to counter effectively the force being employed by those governments, individuals, and groups of individuals, who would deprive the people of a free society. Do not the National Guard and Military Reserves these days properly play the role of the citizen militias of the late 1700’s? No. Why? Because they are subjec to call-up by the federal government, which is the very government, more than foreign governments and state governments, and individduals and groups of individuals, which the Founders feared most. The federal government cannot be trusted, according to the writings of the Founder, to protect the very rights of the people which the federal government, most probably, is infringing! The dullest of us should realize that the fox cannot be trusted to guard the hen house!

Comment by James Lee Perry (Mr.) — November 20, 2007 @ 9:17 pm
Few, if any, constitutional scholars will today argue that Miller held for a collective right. It has been interpreted by circuit courts to that end, true, but those lower courts have no binding precedent on the USSC.

Under Miller, an M16 machine gun would clearly have been of use to the well-regulated militia, and I doubt that D.C. will want to argue that point.

Comment by Kevin McDonough — November 20, 2007 @ 9:23 pm
I don’t see how the “collective right” position holds water. Amendment 2 refers to the right “of the people”, which is the exact same language used in the other amendments.

So if the A2 right is “collective”, then so are all of the other Bill of Rights rights. And no one believes that.

Comment by Stephen Jaros — November 20, 2007 @ 9:25 pm
The “well regulated” argument (that it implies the founders meant that whatever individual right the 2nd grants is subject to regulation) is interesting, but a red herring, as are most anti-individual arguments vis-a-vis the 2nd Amendment.

From http://www.guncite.com/gc2ndmea.html:

The Random House College Dictionary (1980) gives four definitions for the word “regulate,” which were all in use during the Colonial period and one more definition dating from 1690 (Oxford English Dictionary, 2nd Edition, 1989). They are:

1) To control or direct by a rule, principle, method, etc.
2) To adjust to some standard or requirement as for amount, degree, etc.
3) To adjust so as to ensure accuracy of operation.
4) To put in good order.

[obsolete sense]
b. Of troops: Properly disciplined. Obs. rare-1.

So, clearly, “regulate” is not meant to imply additional laws, bureaucracy, governance, etc., but instead, order, discipline, and drill.

I agree that it will be close, but I think Stevens may be the one who sides with the individual-rights bunch. Why do I say this? Stevens seems much less likely to expand govt. powers at the expense of individual rights. And he’s more in touch with constitutional history. Some of his arbitration law and 4th Amendment decisions reflect this. These are just hunches, though.

I’m not sure how anyone can, just by reading the history of the writing of the Constitution, conclude that the rights are not individual. But that’s not going to save the Respondent here, as many Justices have eschewed that in favor of a “living” interpretation. Heck, some even looking to foreign law.

Comment by Robert W. Waddell — November 20, 2007 @ 11:26 pm
Oh how punctuation can be so revealing about intent. When they posed the question with these words, “state-regulated militia” a hyphen means the world. It means to me that if they had posed it as “state, regulated militia” instead of with a hyphen, then that could mean they were thinking either way, but by using the hyphen they are revealing that they already think the militia in the Second has to be a state-organized militia as I read it.
Seems as if they already decided that “regulated” means controlled and not “well supplied” back in 1790.

Comment by Mark Arthur — November 20, 2007 @ 11:28 pm
First the court seems to be phrasing the question as if individuals who were NOT affiliated
with any state-regulated militia have some kind of 2nd Amendment rights that may or may not have been violated and I hope that is what they are actually saying.

Two, well there is nothing about ’state-regulated’ in the 2nd Amendment (which kind of makes me wonder) so why is that even mentioned? Straw man argument? Well regulated is not the same as state-regulated. After all the Bill of Rights is for the people. I wonder if they phrased it like that for a purpose.

And ‘private use’? Is there a ‘public use’ for keeping them in ones home?

I feel, while it was worded oddly, it still covers the whole use of all firearms in ones home (but does not mention ‘bearing’ them or exactly what the 2nd Amendment is supposed to cover in or outside the home.)

It may not be 100 percent plus for us on the decision but whatever they leave undecided (haven’t they always) it will leave us room for another case.

Comment by Paul Hacker — November 20, 2007 @ 11:41 pm
Article II of the Bill of Rights is a Ciceronian model of a periodic sentence. The framers of the Bill of Rights were Classically trained scholars and rhetoricians, and in crafting the Second Amendment created a rhetorical metaphor that structurally and grammatically mirrors the rights of the people it sets out:

Article II is constructed of two dependent clauses which are mediated by a final independent clause. As a Ciceronian rhetorical model, it is elaborately ornate (as compared to the more spare Senecan rhetorical style).

As periodic sentence, Article II structures its first two clauses to depend upon the independent grammatical structure of its final clause.

Other examples of Ciceronian, periodic construction are contained in the first sentences of the Declaration of Independence and the Preamble to the US Constitution.

“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.”

Not only is Article II structurally elaborate, and rhetorically ornate, it is poetically metaphorical.

“A well regulated militia, being necessary to a free state” is NOT about “state’s rights” but rather signifies “a free state” of liberty.

“A well regulated militia” is discussed in Hamilton’s “Federalist” No. 29 “Concerning The Militia.” Hamilton and the framers of the US Constitution were conflicted about the potential for a government militia becoming the armed oppressive mechanism of a tyrannical government.

The framers of the Constitution held, as noted in the Declaration of Independence, that “governments are instituted among men, deriving their just powers from the consent of the governed.”

Accordingly, the government’s militia would be “well regulated” because holding the government’s military power in check by the consent of the governed is “necessary to the security of a free state.” Liberty requires that the army of the government be regulated by the people.

The necessity of a well regulated militia requires that “the right of the people to keep and bear arms shall not be infringed” because the regulation of the militia by the people is necessary to the security of liberty.

Grammatically, rhetorically, and in an elegant metaphor the framers of the Bill of Rights tell us that the security of liberty requires that the government militia be well regulated, and that “regulation” depends – grammatically, rhetorically, and politically — upon the uninfringed right of the people to keep and bear arms in defense against a tyrannical government.

It’s not about “states rights,” not about the establishment of a “state militia,” and it’s not about duck hunting.

It’s about the people’s right to hold the government in check though the mechanism of armed defense.

Comment by G. Alan Bergerson — November 20, 2007 @ 11:51 pm
I would appear that SCOTUS is telegraphing its decision on the conditional cross-petition. The whole point of the cross-petition was to reinstate the plaintiffs who were dismissed. That was being done for two reasons: (1) to challange the standing doctrines of Navegar and Seegars, and (2) to keep alive the challenge to the non-handgun regulations that are specifically cited in the Court’s rephrased question. By saying that it intends to review the effect on 2A rights of the non-handgun parts of the D.C. regulations — provisions that the Heller facts do not, on their face, raise — looks like telling tea leaves to me.

Comment by Donald Kilmer — November 21, 2007 @ 12:04 am
Does anyone honestly believe it isn’t an individual right?

If one applies logic, reason, and english sentence diagraming, english semantics and historical context, *NO* other conclusion is possible.

The only way to reach any other conclusion is to suspend reason!

Even the title screams individual rights, hence “Bill of RIGHTS”! Not to mention the second of ten rights!

Given the current administrations attempt to tramp our (the people’s) rights, one can only hope that our Supreme Justices will let reason rather than emotion carry the day.

As with all rights there are reasonable limits, but the extent of a right is a different discourse than the existence of that right!

Denial is dangerous, in human discourse!

Comment by Bruce Hutfless — November 21, 2007 @ 1:08 am
A comment about a fact that continues to miss reported to this day.

1) 1934 NFA prohibited the making of a rifle or shotgun with a barrel less that eighteen inches in length.

2) The shotgun is question was manufactured by Stevens as a double barrel shotgun with a barrel length a little less than seventeen inches several years prior to the passing into law of the 1934 NFA.

3) The defendant never made any modifications to the weapon in question and never alleged the defendant had.

4) Neither the defendant nor his consul were present.

5) The Supreme Court remanded the case, but no further action ensued, for a various reasons.

Thus then was never a final adjudication in Miller vs US.

Just for the record. Let’s try to keep it honest folks.

Comment by Bruce Hutfless — November 21, 2007 @ 1:38 am
It’s obvious there seems to be oneway slant on this issue. Posters in every conceivable blog seem to unanomously agree in a individual right in the home. Is there really any chance the SCOTUS could get this wrong?

Comment by James Camden — November 21, 2007 @ 7:04 am
Ron Bokleman:

That quote is falsely attributed to George Washington. He did not say any of that. Here is the website that details this:

http://www.guncite.com/gc2ndbog.html

This quotation, sometimes called the “liberty teeth” quote, appears nowhere in Washington’s papers or speeches, and contains several historical anachronisms: the reference to “prairie wagon” in an America which had yet to even begin settling the Great Plains (which were owned by France at the time), the reference to “the Pilgrims” which implies a modern historical perspective, and particularly the attempt by “Washington” to defend the utility of firearms (by use of statistics!) to an audience which would have used firearms in their daily lives to obtain food, defend against hostile Indians, and which had only recently won a war for independence.

The “99 99/100 percent” is also an odd phrase for 18th century America, which tended not to use fractional percentages. It’s clear that “Washington” is addressing “gun control” arguments which wouldn’t exist for another couple of centuries, not to mention doing so in a style that is uncharacteristic of the period, and uncharacteristic of Washington’s addresses to Congress, both of which exhibited a high degree of formality.

This is a false quote, but bits and pieces of it still continue to crop up from time to time. Even national publications, such as Playboy magazine, have been snared by it. (Playboy published the “quote” in December 1995 as part of an article entitled “Once and for All: What the Founding Fathers Said About Guns”. After consulting with an assistant editor of the George Washington Papers at the University of Virginia, Playboy published a lengthy correction in March 1996.)

The above analysis (by Clayon Cramer) was taken in part from a “talk.politics.guns” usenet FAQ. (Original source: Cramer, Clayton, Firing Back, 1995. Used by permission of the author.)

The Second Amendment Foundation (SAF) also comments (excerpted with permission) on the liberty teeth speech as follows: “This has several variations including ‘hour’ for ‘moment’ and sometimes added as part of an actual Washington quote ‘A free people ought not only to be armed…’ The various citations are even more numerous than different wordings: Address to the Second Session of the First U.S. Congress; Speech to Congress of January 7, 1790, printed in the Boston Independent Chronicle, January 14, 1790; the Federalist No. 53; Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, 1785.”

Comment by Bradford Wiles — November 21, 2007 @ 8:31 am
One issue occurs to me and I’ve not seen it addressed here, although the circuit decision, and many articles (”The embarrasing 2nd Amendment” among them) did touch on it.

The argument goes that the well-regulated clause means that ultimately the individually armed citizens are the final ‘regulators’ of the state militia. Because the framers were opposed to a peacetime standing federal army, the state militias would be the only armed force readily available.

The question framed by the court, however, seems to presume only a ’state-regulated militia’, and precludes the argument for a state militia being well and finally regulated by the individuals. Have I mis-read or over-read the question?

Comment by G.B.Waterman — November 21, 2007 @ 9:32 am
I think the court *should* rule that:

The people indeed have an individual right to keep and bear arms whether or not they are members of an organized (regulated) state militia (they will likely limit it to small arms—I certainly don’t see a militia use for serrin gas or nukes and the likes since they are not defensive weapons).

The “well-regulated” clause applies to the state militia, not the people themselves. It lays the burden of training and disciplining the militia on the states.

Comment by David Lawson — November 21, 2007 @ 10:02 am
A Comment on The Bill of Rights:
How can people say that the second Amendment is not an individual right. Why would our founders make all the amendments about us as individuals and just not the second amendment? Bill of Rights if you say it Bill of Rights that means me as an individual whether I am apart of a group or not; but I am apart of a group I am an American and I stand with and by my Brothers and Sister.

Comment by James Pease — November 21, 2007 @ 10:20 am
18 U.S.C. 922(g) states that a respondent who is the subject of a “protective order” as that term is used in most states cannot “”purchase, receive, or possess a firearm while subect…” to the Order.

I wonder if, and I assume it will, SCOTUS rules that it’s a personal right etc… there will be a ripple effect on laws like this or whether it will be seen as a legitimate police power of the state?

Comment by Kerry Hultquist — November 21, 2007 @ 10:44 am
Now let’s address ‘reasonable’ restrictions.

I’m of the opinion that ‘my right to swing my fist ends at your nose.’ This means that rights are only curtailed when they harm another.

I think this is the basis for the limits on free speech. When speech causes harm it is not protected and the person who uses speech to harm can be held civilly and criminally liable. This addresses such things as libel and slander. Modern courts have held that truth is a protection against harmful speech (though this has not always been the case.)

So ‘reasonable’ restrictions on speech address how speech is used to harm someone rather than the type of speech or the technology used (printing press versus internet, etc).

What are ‘reasonable’ restrictions on the right to keep and bear arms? Seems logical that those restrictions should be analogous to the restrictions on speech. Use of firearms that harms another. To me, this would include things like murder, attempted murder, armed robbery, perhaps excessive noise in a residential neighborhood and the like. Background checks to prevent prohibited persons from obtaining firearms (at least via legitimate means) seems reasonable. Waiting periods, gun bans, transportation bans, excessive storage requirements, etc do not.

A great majority of the gun laws on the books and those proposed amount to prior restraint and therefore, in my opinion, do not pass constitutional muster. They are not reasonable.

It is said that ‘you can’t yell “fire!” in a crowded theater’. This is because you can create a panic that causes harm to others. However, we don’t prevent you from having the ability to do so. If there is a fire, you certainly need the ability to yell ‘fire’.

The same applies to firearms. You can’t fire your gun in a crowded theater. But should you be restricted from having a gun in a crowded theater? What if a madman with a firearm or other weapon enters the theater and begins killing people? You’d then have the right to fire in defense.

Comment by David Lawson — November 21, 2007 @ 10:47 am
Does the word “people” refer to an individual or a group of individuals? Here are some answers:

1. “How many people live in the world?” The answer according to the United Nations is, “5.8 billion”. UN website, link: www.un.org/cyberschoolbus/habitat/factgame/howmany2.htm

2. “…violence in Darfur that has caused the death of hundreds of people…” United Nations Secretary-General’s press conference, New York, 28 August 2007, link: www.un.org/apps/sg/offthecuff.asp?nid=1060

3. “Human rights groups say at least 3,000 people were killed.” BBC News, 25 September 2007, link: http://news.bbc.co.uk/2/hi/asia-pacific/7012158.stm

4. “Britain’s prime minister apologized Wednesday for the government’s loss of two computer discs containing the personal data of 25 million people…” CNN.com (Europe), 2007, link: http://edition.cnn.com/2007/WORLD/europe/11/21/britain.personal/index.html

I can live with that interpretation of the word people!

Comment by Dennie Warren Jr. — November 21, 2007 @ 11:52 am
[6] … –one with state capitalized and one without–are often used. Does anyone else think it makes much of a difference?

Briefly: No.

More lengthily: In current grammatical convention, we only capitalize proper nouns. In 18th century Conventional literary Discourse, any Noun which appeared in a Sentence might be Capitalized more or less at Will. People of that Time would recognize no Difference between the Words “state” and “State” in any written Instrument of the Law. So neither should we.

Comment by Alex Curylo — November 21, 2007 @ 12:02 pm
Well, at least most of the argument here focuses on what the founder’s “intent” was when they worded the amendment the way they did. Which is as it should be.

I just wish every case were argued like this, then we could jettison just about all of the warren-brennan decisions of the 50s - 70s.

Comment by Stephen Jaros — November 21, 2007 @ 1:07 pm
Does the word “people” refer to an individual or a group of individuals? Here is my answer: I can be both!

“We the people…” “The right of the people..” Last time I looked that included me. Me as an individual who is a part of this nation. Those are my rights and the rights that we share as Americans both individually and as a Country.

Comment by James Pease — November 21, 2007 @ 3:00 pm
Clever ruse . . . “People” as a collective. What your argument not so deftly evades is the ineluctable fact that references to “billions of people” signifies a very large group of INDIVIDUALS.

As regards the “meaning” or intention of “state” —

A “state” can be either a political entity like Iowa, or a characteristic like solid, liquid, gas . . . or liberty.

Regardless whether “free state” in the Second Amendment signifies “Iowa” or “;iberty” the inference to be drawn is the the security of a free state requires by necessity a “well regulated militia.”

When the government controls the firearms, the government regulates the militia.

The founders assert: “governments are instituted among men, deriving their just powers from the consent of the governed.”

The regulation of government and the government’s militia is necessary to secure a state of liberty, and so the right of the people to secure that liberty and to regulate the government’s militia shall be afforded in the people’s right to keep and bear arms in their own defense against a tyrannical government.

– Only the Founders pared it down to an eloquent 27 words.

Comment by G. Alan Bergerson — November 21, 2007 @ 3:07 pm
I did a lot of research on this in my undergraduate days. As long as the court looks at historical data that exists regarding the arguments made for the amendment in question (what the framers then were thinking as they debated it), then the individual right argument should be made glaringly obvious.

Also, as has been noted in earlier posts, “the right of the people” means the right of individuals in other amendments. Yet for some (obviously politically correct) reason, and due to the language of the Second Amendment, those who disagree (usually anti-gun zealots who wouldn’t know the first thing about any firearm, or how to properly use it) will argue the counterpoint.

I seem to recall a constitutional scholar named Joyce Lee Malcolm who did a lot of work looking up historical information which ends up pointing to an individual right. I also seem to recall seeing a breakdown of the language of the amendment, using the vernacular of the day and NOT our current day language. Sorry anti-gun people, it doesn’t mean what you think it means.

In the end I don’t know what to think. Even if the individual right is held to be the correct one, and Miller is rightfully struck down (as it is barely precedent to begin with, the case was a joke, as others have noted), I unfortunately don’t see it becoming the be all and end all of the argument on gun ownership in this country.

Legal and constitutional arguments aside, you cannot legislate human behavior, you can only try to enact controls that deter people from misbehaving in the first place. As long as sociopaths decide to vent their frustrations with firearms, the argument against lawful gun ownership will rage unabated.

By the way, fully automatic weapons (suitable to military use…see why Miller was a joke?) are legal to won, and are heavily regulated. They have also NEVER been used to commit a crime. It’s the illegally owned and/or converted ones that have been used in violation of law and reason.

Comment by Roger Duarte — November 21, 2007 @ 4:36 pm
Yikes.
I just discovered this site and thanks for some really great insight.
Particularly, thanks to G. Alan Bergerson whoever you are. Wish I had you as a law school professor….
@@@@@@@@

Comment by Paul M. Morris — November 21, 2007 @ 7:43 pm
Duarte: By the way, fully automatic weapons […] are legal to [own], and are heavily regulated. They have also NEVER been used to commit a crime.

I think fully automatic M1 Thompson Submachine Guns (aka “Tommy Guns”) were used in at least a few crimes during the 1920s.

Also, Clyde Barrow (of Bonnie &) used a Browning Automatic Rifle (BAR) during some of his crimes, a fully automatic 7.62×63mm light machine gun . . .

And if you include illegal activities by the U.S. government and by drug-related gangs, I’ll bet there have been quite a few fully automatic weapons used in crimes.

Comment by Daryl Herbert — November 22, 2007 @ 12:59 am
Here’s a link to DC v. Harris 07-290:

http://www.scotuswiki.com/index.php?title=DC_v._Heller

– More parsing of the legal issues than I can muster.

I teach English, rhetoric/composition and linguistics. But also, I have an interest in New Historical Criticism which seeks to analyze a text within its historical framework and in light of the contemporary lexical usage.

Hamilton, in “The Federalist” No. 29, “Concerning the Militia” wrestles with the balance between the government maintaining an armed force (militia) and the people regulating that armed force.

The Napoleonic Code held that the “King” owns the property, the guns. British Common Law (James I if I’m not mistaken) holds that the people own the guns, own their property.

This is where the Lockean idea of “Life, Liberty, Property” emerges . . . Later changed in the Declaration of Independence to Life, Liberty, and Pursuit of Happiness.

Here’s a link on that concept:

http://en.wikipedia.org/wiki/Life,_liberty_and_the_pursuit_of_happiness

Either the government owns the guns or the people own the guns. Since the US government derives its just powers from the consent of the governed, it must be the people who own the guns.

Comment by G. Alan Bergerson — November 22, 2007 @ 4:30 am
The intention of every word written in blog 52 is to highlight the irony of those who take the liberty of using the word “people” when referring to individuals, but claims it says otherwise as used in the Second Amendment. I would apologize for doing so poorly, but I am still raptured by this news! Sorry.

The Second Amendment SHOULD guarantee all law-abiding US citizens the individual right to keep and bear arms; just as the Founding Fathers intended, but I believe it doesn’t anymore and that makes me sad.

I hope that the Court rules in favor of firearm owners and releases its decision on July 4, 2008. I intend to have the Supreme Party of my life!

Comment by Dennie Warren Jr. — November 22, 2007 @ 5:20 pm
Regarding the SCOTUS use of “state-regulated militia” in their rephrased question, I believe this is a direct reference to the argument presented by D.C. Since D.C. is not a State (can’t resist the cap), citizens of D.C. can’t be militia members and thus have no second amendment rights.

Comment by Munango-Keewati — November 22, 2007 @ 10:14 pm
“Free state” isn’t about state rights. It’s a condition of liberty. If you can’t read it both ways, you can’t interpret it either way.

Comment by G. Alan Bergerson — November 23, 2007 @ 3:59 am
We have seen the words “state”, “militia”, “regulated”, “people” and “bear” sliced and diced, analyzed as to the probable usage by the founders. Any English professors out there with some historical research background want to take on “Shall” and “infringed” as used by the founders?

With over 26,000 local, state and federal gun laws on the books (having more effect on the general population than criminals), there is a better than an even chance that the second amendment is being infringed.

Comment by Tom Ruggles — November 24, 2007 @ 3:14 pm
You can look in your OED (Oxford English Dictionary) and you’ll find that “shall” is an emphatic form of future verb tense. When the “shall not” construction is used it means “under no circumstances at any time now or into the future.”

It’s a verb tense construction and as such retains a constant meaning just like the fixed subject nouns “I, you, he, she, it, we, they.” There are fixed vocabulary forms in language and changing forms.

Verb tense formation is pretty much fixed. Words such as “militia” change meaning and context but grammatical structures such as “shall not” remain constant in the language.

“Infringed” means in essence “to tatter at the edges.” It derives from “fringe” in Middle English and “frange” in Old French, from Latin “frimbriae” and denotes “an edge, border or threads.”

That’s Intro to Sociolinguistics, my field.

Comment by G. Alan Bergerson — November 24, 2007 @ 8:45 pm
maybe the founding farthers ment we the people are the well regulated militia.

Comment by David Freitas — November 25, 2007 @ 2:43 pm
Reasonable restrictions, like those of the other rights do not translate well to the public in the case of firearms. If you restrict guns like free speech, it would mean anybody could buy a gun regardless of history or condition and the law would only restrict how they use it - like free speech.

Perhaps that might work if the laws were so stiff that you do life in prison without parole if your crime involves a gun. That doesn’t seem feasible but it’s a point of comparison between the 2nd amendment and other rights.

Comment by Robert Conrad — December 1, 2007 @ 10:09 pm
.
Daryl If the use of any tool in a crime were the bases for banning or regulating its legal use then hundreds of everyday items could be banned. Only the act of using the “steak knife” to harm another can or should be regulated as a crime not the possession. As the law is now only the “rich” can legally afford automatic weapons excluding the majority of law abiding citizens. How does government regulate which law abiding citizen can or cannot own an automatic weapon? The tax stamp is $200 and automatic rifles are over $10K As it stands right now owner ship is really regulated in the market place by the cost.

Comment by Greg Trojan — December 1, 2007 @ 11:35 pm
One more thing about owning fully automatic weapons is important. When you agree to a class III license to own a fully automatic weapon or suppressor (commonly known as a silencer), you also must give up your Fourth Amendment rights. The police / BATFE can come to your house anytime, day or night, and check for possession and storage compliance of the firearm, as well as anything else that may be of interest to them.

I hardly think that this is what the Founders had in mind when they wrote the Second Amendment. I don’t think you should have to trade one part of the Bill of Rights for another.

SCOTUS should hold that it is an individual right, and that “shall not be infringed” means that prior restraint in the form of licensing for automatics, suppressors, etc. is unconstitutional. What part of “shall not be infringed” is not clear?

I hear the “fire in a crowded theater” argument for restricting Second Amendment rights all of the time. However, there is a major fallacy in that argument when looking at the guns situation. Nobody duct tapes your mouth shut when you go to the theater because you might yell “fire”. When you restrict someone’s gun rights because they might do something rash, that is prior restraint.

Additionally, yelling “fire” is not illegal, and indeed necessary should there actually be a fire. Just as having a gun and shooting it is not illegal, when defending your life. Restricting a right because you might do something is fundamentally contrary to the spirit of the Constitution. Should we restrict women from walking down the street because they might engage in prostitution? Should we take away all computers because someone might commit libel?

Comment by Bradford Wiles — December 2, 2007 @ 11:17 am
Too bad New York Times Editor Raymond is not around to testify –

http://adamant.typepad.com/seitz/2007/04/punchy_editoria.html

He certainly could speak ad rem to the role of the Second Amendment in defending the First

Comment by Russell Seitz — December 3, 2007 @ 1:20 pm
Everyone, including the Supreme Court justices, is in luck. There is a forthcoming book about the Second Amendment by the editor of the document collection that the circuit courts have extensively cited in their individual rights rulings concerning the Second Amendment. The document collection is The Origin of the Second Amendment. The forthcoming book, available in mid-December, is The Founders’ View of the Right to Bear Arms - A Definitive History of the Second Amendment.

Once this new easy read covering the most relevant information is combined with the complete Constitutional Era source collection on the Second Amendment from Golden Oak Books, be prepared for Heller’s 9-0 Supreme Court victory protecting his fundamental individual rights.

Comment by David E. Young — December 3, 2007 @ 11:05 pm
Once last comment here from me. I don’t care about precedent or interpretation or any of that. Original intent is all that matters, especially considering how twisted the 2A has become. The writers of the US Constitution were quite clear that the 2A is an individual right and it was meant to remain that way. The intention for including it was so that the individual would have the power to resist a tyrannical gov’t (as was the case with England’s control of the colonies, taxes, gun confiscations, etc). Governments understand this and therefore seek to remove or otherwise legislate into oblivion the ability to personally own this “power”. Consider how tyrannical governments usually begin by disarming the populace ………..

Comment by Dan Passaro — December 5, 2007 @ 11:35 am
The Gun Control Act of 1934 - Imposes a “making tax” of $200 for manufacturing a National Firearms Act (NFA) weapon for personal use, a “transfer tax” of $200 for registration changes of NFA firearms not defined as Any Other Weapon (AOW){which had a “transfer tax” of $5.}

Gun Control Act of 1968 denied acceptance of transfer taxes for imported NFA firearms (machine guns) for personal possession.

The Gun Control Act of 1986 denied acceptance of transfer taxes for domestic manufactured NFA firearms (machine guns) for personal possession.

Why did the congress and SCOTUS recognize an individual right back in 1934, and what makes you think that the current SCOTUS will not see it today?

Comment by Frank Castle — December 11, 2007 @ 5:27 pm
Please note that 18 USC 921, which defines terms in
§922, defines DC as a state for fed gun control issues.

Comment by John C. Tate — December 22, 2007 @ 2:13 am
Anyone who has recently served in the National Guard, which is touted by the “collective Right” interperters, will readily attest the posession of a firearm and the circumstances of when it’s use may be permitted, is strictly controlled. There is NO “Individual right” to bear the arms, in the National Guard (”Milita”). Your use of those arms you are issued while in the Milita (National Guard) is purely under orders and at the whim of your Superiors. You can be disarmed at any time at the whim of your superior officers. If individual initiative is used to decide when there is a need to use those arms, as in cases when this use may conflict with the stated Rules of Engagement, you can and probably will be brought up on Courts Martial. This can extend into incidents where you perceive a threat and believe your life is in danger. This is not as prevalent in the Regular Services, but given the “Volunteer” organization of our State Militas, many Guards have been brought up on charges for “wrongful use of a Service Weapon” by nervious, and maybe inexperienced, superiors. Been there, Seen that…………..

No, it’s clearly NOT about the milita. It’s an individual RIGHT. It is NOT a privlege to be granted by a faceless government servant to those whom they favor and denied those for whom it is “inconvenient”. It IS NOT a “favor” that can be withdrawn at the whim of those in Government. The 2ndA makes those who would seek to oppress the citizenry very nervious. That was the intention when it was made part of the Constitution. No matter what has happened recently in the Great Experiment in Civilian Disarmement in Great Britan and Australia; it has to be remembered the residents of those nations are “SUBJECTS”, not CITIZENS. The rights and privleges in those fair lands flow downward from a highly centralized benevolent and all-providing national government. Our Government’s powers originate from and are at the pleasure of, the CITIZENS. We have the right to resist; they do not. They do not even have the individual right to armed self-defense - the use of arms is the right solely of the Crown. The individual posession of firearms, a privelege in the Brithsh Empire, was made a right for a reason when the constitution was drafted.

Comment by William F. Wood — January 7, 2008 @ 11:19 pm
The use of “milita” in the constitution does not refer to a “state-regulated milita.” It follows directly that very way the question has been formulated by the supreme court according to the above article is both disingenuous and wrong.

Here’s why: The milita, in the parlance of the day, was any male who was physically capable of fighting. With or without being called up for service. A well regulated milita meant an armed and able male that was consistently armed and ready. They were quite specific - what weapons, how much powder, etc. Look it up; these are facts. The security of the nation that everyone is so focused upon was the security to be able to FORCE the government to comply with its charter. Look it up. Jefferson et al, Federalist papers, etc. It wasn’t the security of the government from the English or pirates or other external threats they were talking about. The “why” of the prefatory clause is still an issue today; perhaps more so with our chief executive breaking the law left and right.

This why the prefatory clause, the one talking about the milita, does not imply that citizens have no individual right, and sensibly and clearly supports the extremely specific “the right of the people to keep and bear Arms, shall not be infringed” in the operative clause.

If we want the constitution to mean anything other than what it says - which is that the people’s right to bear arms SHALL NOT BE INFRINGED, then there is a mechanism for that - it requires amending the constitution.

Quite aside from the misunderstanding of milita and the pendant Alice-in-Wonderland reasoning we hear all too often today, there is a much simpler edge that divides the 2nd amendment: The first phrase is prefatory - doing a little explaining - but it is not operative in any sense; meaning, it specifies no action to be taken or allowed to be taken by the federal government. The second phrase is the operative clause, and there is absolutely zero waffling or conditional component to it: SHALL NOT BE INFRINGED is as clear today as it was the day it was written. SHALL NOT. Period. End of story. So - even were the modern-usage folks right, presuming those Authors back in the day could anticipate today’s entirely different usage of the word “milita” - the operative clause still means just what it says, and the ONLY way that the people’s right to bear and keep arms can be infringed using legitimate authority derived from the constitution is to amend the document.

In the meantime, ALL laws and “rulings” that infringe our right to bear arms, regardless of what capacity or caliber, are UNCONSTITUTIONAL and are the result of government misbehavior that does not descend from authority granted by the constitution. Consequently what we have is use of assumed power, as opposed to use of granted authority. This is the hallmark of a dictatorship, and avoiding such is the precise reason that the 2nd amendment was put into the document. Read the federalist papers. It’s just that simple.

The only real problem here is the apparent presumption by (at least some of) the Authors that the government would obey the constitution in good faith. That, sad to say, has turned out not to be the case, from the unbelievable gymnastics employed to mutate the commerce clause into its exact opposite meaning to the use of the 2nd amendment to actually INFRINGE the PEOPLE’s right to bear arms.

In the end, it doesn’t matter (in terms of legitimacy) what the supreme court rules here, because the constitution is a higher law; without constitutional compliance, the supreme court has no authority at all. Citizens do have the right to bear arms. There’s nothing, short of a constitutional amendment as previously mentioned, that the government can do about it that can trace any authority back to the constitution. It does matter, of course, in that by disarming the citizens, the government exercises power not granted to it. You should think about that and decide if you like it. After all, perhaps you *want* to live in a dictatorship.

Just don’t let that word “milita” confuse you. Do a little research. Find out what it meant when they wrote it; in that effort, you will learn what they meant to say across the entire amendment, and probably no surprise, it isn’t opaque, contradictory, or difficult to understand at all. These people were not trying to be difficult to understand. When people read the constitution and do find it difficult to understand, you should immediately suspect their knowledge of context. Likewise, if you have trouble, start studying the papers of the times. It is worth it - because if our constitution can be circumvented and we accept that, then we’re not the nation we claim to be. But you MUST understand the document in order to defend it.

Comment by Ben Williams — January 8, 2008 @ 9:17 am
My compliments on the excellent post, Mr. Williams. If I failed to make myself clear in the initial paragraph of my posting, I apologise, and in rereading my post, I am afraid I did argue with some ambuguity in the opening paragraph. I can only offer it was very late, and I was VERY tired. My understanding of the true meaning of the term “milita” in the 2ndA is exactly that which you explained. I was attempting to make the point of what I have been told by countless gun-phobic collegues, teachers and even members of my own family, namely, the 2nd amendment is simply a guarantee that the individual states have the freedom to form their own armed forces, seperate from the National forces.and if one wants access to a firearm (as in organized target competition), one must join and support the “milita” (I.E.: State National Guard). I even had one well-meaning collegue explain to me, as one would explain simple truths to a child, that this was another example of the infallibility of the Constitution, where by the Founding Fathers, in their wise way, had anticipated the problems we would have with “rampant” firearms ownership” and had devised this escape mechanisim whereby the “Needs” of the State were served (citizens trained in firearms use,) but in a “safe and secure” environment. Yes, she actually believed this specious explanation and quoted Chapter and Verse to support this claim.

Again, I am securely in your corner. I actually have been a Rev. War reenactor in the past. I am well aware of the requirements (”Belleye Box for Cartridges, 3 sharp flints, a spare “scouring Stick, powder, ball and . ( use both as an “instrument of War” and a hunting firearm. That was the point I attempting to make. Sorry if it “Lost in the translation”

Comment by William Wood — January 10, 2008 @ 1:26 am
In drafting the Second Amendment, did the Founding Fathers really intend that the last line of defense of the People’s Liberty be entrusted solely to the State governments and not the People themselves?

Comment by David M. Bennett — January 15, 2008 @ 8:53 pm
Every individual has the right to defend themselves. There is something terribly wrong if the Supreme Court does not recognize this as an individual right. I am pretty sure that violent criminals do not care about this huge decision anyway, they will still have the guns.

Comment by Gary Holt — January 16, 2008 @ 3:39 pm
Was the Second Amendment placed into the Bill of Rights solely to ensure the security of state governments against the yoke of a federal government or was the Second Amendment actually intended to ensure the life, liberty and happiness of the People, that they might continue to be sovereign Citizens of a free-state?

Comment by David M. Bennett — January 16, 2008 @ 4:35 pm
I have had and still do have guns and if you think by changing the laws so only the police and the bad guys have them that is not a good thing for anyone.We need to be able to protect our familys and it is our right to have them I hope we never give up that right Thank you

Comment by Jack L Jackson — January 21, 2008 @ 7:40 pm
I’ve researched this in detail as have many that have posted. Here’s my take (it’s a simple one):

1. It’s an individual right. “Militia” is defined multiple places as every able-bodied male above the age of 18 (some say 16). Given the equal-rights changes since it was written, I’d say it means EVERYONE.

2. Keep and Bear arms means just that. People are allowed to own and carry weapons as they see fit.

3. Shall not be infringed means just that. No government should prevent me (in any way) from owning any weapon I see fit. If I want an M16, it’s mine. If I want a bazooka, it’s mine. Prosecute doing something bad, not owning an object.

Some are going to say that I can own M16’s, etc. now, and that’s true in the most simple legal terms, but not in practice. I’m also going to clarify a little bit of mis-information that has been posted.

1. The National Firearms Act of 1934 puts a $200 tax on automatic weapons, silencers, etc. This tax is to be paid every time a weapon is transferred (sold). There are $5 taxes on AOW’s.
2. The Federal Firearms Act of 1938 mainly added the FFL requirements, so there’s not a lot of change to NFA weapons.
3. The Gun Control Act of 1968 made it illegal to import NFA weapons. It also modified the registrations required by the NFA since it was ruled unconstitutional by the Supreme Court.
4. The Firearm Owners Protection Act of 1986 (yes, that’s the real name) made it illegal for citizens to own NFA weapons made after May 19, 1986.

Take an M16 for example. It was made in the US, so 1968 didn’t apply and was made before 1986. Before this point, you could buy one for about $700 in any well-stocked gun shop. The current going price for transferable ones is $20,000. If you want an FN P90, you’re out of luck since it was made after 1986 (and outside the US).

You don’t give up your 4th Amendment rights to own NFA weapons, they’re just really hard to get, and really expensive. An M16 is actually at the lower end of the cost scale. M60’s and Mini-guns are well over $100,000. Some get into the millions becuse they’re so sought by collectors. The process is just filling out a Form 3, getting local law enforcement to sign it (good luck), then send the form and $200 to the ATF. About 6 months later you’ll get your tax stamp and you can buy the weapon…. This is if it’s not illegal by state or local laws. For instance, I’m in Missouri, and I can have automatic weapons, but no supressors….

It is possible to own weapons outside the limitations mentioned if you are a “Special Occupational Taxpayer” or SOT. This is also called a Class 3 Dealer. These are the guys that sell NFA weapons to the military and law enforcement. By having this FFL, you are subject to ATF searches, as are all FFL owners. This means you do give up some 4th Amendment rights.

Regarding if a legal machine gun has ever been used in a crime, the answer is yes. Once, by a cop, who shot a cop…..

Comment by Danny Elliott — February 4, 2008 @ 4:04 pm
Just a few comments in passing, after reading over the comments on this page (nice discussion, by the way).

In legal parlance, “shall” is indicative of a word of command.

Strained readings of the Second Amendment to favor a collective rights interpretation find no sanctuary in twisting words around, nor in reading the wording of the Second Amendment to mean something other than it states, because no mere exercise of the art of lexicography can alter the essential nature of an act or a thing (United States v. La Franca – 1931).

A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning. (Perrin v. United States – 1979). Therefore, the words “right of the people to keep and bear arms,” as used in the Second Amendment, cannot be properly read to mean that the militia, and not the people, possesses the right to keep and bear arms.

It is a canon of interpretation that real effect should be given to all the words of the Constitution (Myers v. United States 1926). Thus, the Second Amendment cannot be properly read to mean that its words are without effect and mean nothing.

A collective rights interpretation would actually be detrimental to the States. The police power is a far broader and more substantial basis whereupon to erect a power to arm militias and police forces than the Second Amendment. No “guarantee” of the police power of the States was needed, in the form of the Second Amendment. The states existed before the Constitution, and, consequently, their legislative powers antedated the Constitution (Carter v. Carter Coal Co. – 1936). The power of States to arm and equip their respective militias and police forces is not derived from the Constitution, but from the police power of the State, which preceded constitutions and legislative enactments.

The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself. Federalism secures to citizens the liberties that derive from the diffusion of sovereign power (New York v. United States – 1992).

The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence (United States v. Cruikshank – 1875). The basic right to keep and bear arms is properly termed a pre-existing right, one which is fundamental to – and implicit in – the very concept of ordered liberty upon which our constitutional system was founded!

Comment by Charles R. Mosteller — February 4, 2008 @ 4:33 pm
1.) Anyone who believes that founding fathers who created the electoral college system because they believed the uneducated rabble couldn’t be trusted completely with their vote would then give that same rabble unbridled access to any weapon that could ever be devised really just doesn’t get it.

2.)Grants the right to keep and bear arms, it doesn’t say anything about what arms, how many, in what form, or how regulated. Perhaps a sling-shot could be enough. Perhaps a butter knife. Does it say percussion weapon? Nope, says ARMS. Can’t go “interpreting” with your opinion Mr. Judge, must be literal. Doesn’t say functional either. Disassembled is fine, they can be made functional in short order for service in the militia. And it only grants the right to use them in the militia or with regard to serving in the militia, regardless of whether it protects the individual right to keep’em and bear’em. Individual rights are really sparse in this amendment…if you read it without the eye of a judicial activist.

3.)Finally, a well REGULATED militia. Hmmmm….Hmmmmmmmmmm. Really hard to understand what they meant by that.

I expect Roberts has enough integrity not to make a ridiculous ruling. Scalia, Thomas, Alito I’m afraid will probably embarrass the court.

Comment by William Schledlup — February 7, 2008 @ 7:07 pm
Mr. Schledlup…

I am in awe of your keen insight, given it is in stark disagreement with the previous 83 posts.

Perhaps it is you who “… really just doesn’t get it.”

It would seem reasonably apparent to any perceptive reader of the 2nd Amendment, individually and within the context of the entire document, that it is indeed an individual right as presented. Any other interpretation is so obviously contrary to the goals and beliefs of the Founding Fathers as to be unimaginable.

Comment by Michael Samuels — February 8, 2008 @ 11:15 am
Mr. Samuels, what a powerful argument. Everyone with an agenda disagrees with me so I’m wrong. Anyone reading the amendment and concluding differently than you is wrong. Wow, I guess that settles it.

Except…

3rd amendment…the Owner.. individual right.

5th amendment…no person.. indvidual right.

6th amendment…the accused.. individual right.

people…plural, person singular. Yes, contrary to popular belief, the writers of the Constitution unlike many modern Americans, did indeed understand basic grammar.

I also outlined in my previous post how an individual right could be construed by the second amendment but that it in no way would prevent regulation of what kinds of weapons could be owned, how many, for what purpose, and how they would have to be stored. At best, it prevents the Federal Government from banning wholesale, the possession of weapons by individuals belonging to State Militias. It is a very big reach to conclude there are any other rights involved.

Finally, lets talk about context. This is something those who hope to see a right to armed paranoia vs. the government upheld often use to attempt to justify their arguments. At the time of writing this “living”, “breathing” Constitution, the concept of a large, professional, standing Army in the U.S. was so far beyond imagination that they could not have possibly conceived of the current situation. Armys large enough to fight large wars at this time were composed of militia until such time as large numbers of regular troops could be trained, or what professional units existed, could be moved to the area of conflict. In cases where this scenario didn’t exist, such as in France, a totalitarian dictator militarized his country to facilitate conquests. Britain, with a huge empire produced troops to garrison and hold that empire, and funded those forces with her Empire. Most countries experiencing any kind of peace for even short periods of time did not waste resources on large standing armies. No income tax then. To write a Constitution dealing with a situation otherwise would have been inconceivable. All “context” does for the argument on the side of an individual right is to place the Second Amendment in the class of archaic law, to be ignored, and if impossible to ignore, necessarily repealed.

Such energetic defense of a law that would rank right up there with prohibition of fornication, blasphemy, adultery, or cursing in front of a woman tarnishes the spirit of the Constitution.

Of course, if you would like to disband the majority of the military and revert to reliance on State militias, that is a perfectly legal and Constitutional response. I expect each state will want at least a proportional share of the nuclear stockpile. Should be quite fun to watch. Or do you argue a right to individual thermonuclear protection? If you truly believe that this is an issue of preventing a Federal despot from trampling your rights then a few M16s clearly won’t cut the mustard. I’ve heard the new armed unmanned vehicles strike fear in the hearts of rabid Iraqi insurgents. If you want to compete with Federal armaments, you’ve got a long way to go. What arms can be prohibited, and legally, how can that be justified? I’m curious. I’d love to own an M1A1. Clearly, if this amendment was written to provide individuals with the ability to stand up to their government by force of arms, clearly the Federal government cannot prohibit the possession of ANY form of arms, and most specifically, cannot prohibit the possession by an individual citizen, any form of arms which the Federal government itself is in possession of. Even if this is exactly what the 2nd amendment says, the existence of laws preventing ownership of tanks, nuclear material, artillery, warplanes, and missiles have made the de facto law of the land something very different. I don’t doubt the Supreme Court is capable of ignoring the facts, and the law, and manufactering some sort of hybrid right that extends only to individual firearms, but it won’t be Constitutional. Then again, Dred Scott and separate but equal are only two of dozens of examples where the Constitutionality of a ruling was at best a marginal consideration for an activist judiciary. Why should this case be any different?

Comment by William Schledlup — February 8, 2008 @ 6:44 pm
The National Guard was federalized from the State Militiae in 1903. It’s paid by the fed, commanded by the fed and armed by the fed–all weapons are “US Property.” The governor may only issue such orders as do not interfere with the Fed orders (Perpich vs DoD. 1990?). If and only if Fed permission is obtained, may live ammo be issued to Guard troops on state orders (Art I, Sec 10, Para 3, US Constitution).

It is not a “militia.” It is a reserve of the respective armed force (Army or Air Force) and supported by the states as a form of exchange so they may call upon it for unarmed local service in extremis. The states may not provide weapons under any authority.

And if the Constitutional Amendments don’t apply in DC, I’m moving there at once. No income tax (16th Amend ment). I’ll also pursue a class action suit with all DC residents to recoup all such tax collected without authority.

Comment by Michael Z. Williamson — February 9, 2008 @ 1:26 am
While it is a nice academic argument as to whether tanks, nuclear material, artillery, warplanes, and missiles are the type of ‘arms’ protected by the Second Amendment, there is no doubt that firearms, of the type normally issued to the common soldier, certainly are protected by the Second Amendment. The only real question posed by the Heller Case is who are the holders of that Second Amendment Right? Are they they States, National Guard soldiers, or individual citizens, i.e. you and me?

How is it possible for learned men to even muddle up such a clear-cut case as this by arguing whether this or that arm is protected when no matter which of the views above is held, the ‘arms’ in question certainly include firearms. Why are we even worrying about what arms are covered when it has yet to be decided who the holders of the Right in question are? If the collective-rights view prevails are the same critics going to say that the National Guard must turn in their tanks, airplanes and missles should the Federal government order them to do so?

Comment by David M. Bennett — February 10, 2008 @ 8:44 pm
Agenda Mr. Schledlup? You failed to cite the 1st and 4th amendments. Something there in passing about ” the people ” I believe.

Comment by Craig Canales — February 12, 2008 @ 2:15 pm
The Constitution’s fifth article provides the process to amend the Constitution. If the Second Amendment is truly a relic of another time and place, perhaps Mr. Schledlup should lead the charge in having it repealed or modified to fit the definition he thinks best articulates the combined vision of the Framers and the evolved landscape of our country’s military and weapons technology. The First Amendment grants him, like all citizens, the right to free speech and the right to peaceably assemble. If he can convince enough of the right people, the perhaps Mr. Shledlup can achieve his goal.

The DC vs. Heller case is a particularly refreshing case because it addresses one of a very limited number of topics that I’m aware of where a significant portion of the People feels that a fundamental right is being steadily marginalized and infringed upon through creative legislation rather than through the proscribed channel, the Fifth Article of the Constitution. Does anyone remember the Fabians? The right to keep and bear arms is not a relic - it is a cornerstone of the ideals our nation was founded on.

The first true machine gun was invented by Hiram Maxim in 1881. It’s amazing to me that it took the federal government 105 years to realize that such a tool was too great a responsibility for law-abiding Americans to bear. If Heller prevails and the Miller test is upheld, then we may see machine guns legally available to law-abiding citizens once again and will have to suffer the same fate as before - no change at all.

People, individuals, have the right to protect themselves in their homes with a handgun. As history indicates, this was not a right bestowed on us by the Second Amendment, but rather, preserved by it in the “Great Contract” of the People of the United States - the agreement by which the People agreed to be governed.

Comment by Bryan Manka — February 12, 2008 @ 11:01 pm
Mr. Canales,

I can only assume you are confused. The people do have rights under the 1st and 4th. Says nothing about an individual. Just because individuals gain rights from being part of “the people” does not make it an individual right.

Mr. Manka, you imply I have an anti gun agenda and want the amendment repealed. I think it is already moot whether the 2nd is repealed.

I’m a gun owner, and resent any form of registration of long guns legally owned as a liberal boondoggle. That doesn’t mean I won’t support the common sense, legal, and constitutional conclusion that weapons designed solely for the purpose of ending a human life can and should be severely restricted in ownership.

The home defense argument is laughable. This experiment has been done on a scale that would be impossible to design purposefully. Every other civilized nation severely restricts handgun ownership, and as a result have spectacularly lower death rates from both gun violence and gun accidents. Additionally, the level of gun accident deaths per weapon owned is something like three times higher in the U.S. than in the nearest comparable country, Canada. Translation, every gun owned in the U.S. is three times more likely to kill someone by accident than any gun in Canada. In a country where a high percentage of people own guns, you would expect a lower accident rate per gun (such as in well armed Switzerland). If everyone at Virginia Tech and NIU were armed, it is quite possible the shooting rampages wouldn’t have happened. Of course, many more people would die from gun accidents with those weapons than died in the homicidal violence of those criminal acts. These arguments about defense simply do not hold water. Nothing in the 2nd amendment prevents the government from regulating type, number, or proscribed use of individual owned weapons.

Mr. Bennet: I argue that the right to bear arms exists. I’ve seen no argument that shows the government can’t control what arms a non-militia individual can own. I would expect as well that they did not write the 2nd amendment to refer only and specifically to personal weapons. It seems perfectly reasonable to me, to conclude that militia in post-Revolutionary America might choose to possess and train with artillery and any other weapon that might be developed. A militia with only hand guns wouldn’t be very good at securing a free state.

I argue that the Federal Goverment would not be able to limit the arms possessed by that militia. Clearly the Federal government would not allow this to occur. If this ruling was made, there would be a move to amend the constitution, but not by me. The most conservative of conservative politician would undoubtedly be in favour of preventing some new form of state militia being able to arm with the latest weapons completely out of Federal government control. Indeed, there would seem to be no requirement that “the people” even be interpreted as a State Goverment. Any group of “the people” could decide to constitute a well regulated militia. Thus the 2nd becomes archaic. Militias then were purposeful and fit with society. Militias as they existed then are absolutely inconceivable now. The 2nd doesn’t have to be repealed, although that would be the appropriate solution. The weight of all laws regulating the possession of military weapons probably is enough to render the 2nd amendment toothless, unless the Supreme Court finds all of those laws unconstitutional. If they find for an individual gun ownership right, then there is an individual tank ownership right that has already been infringed upon. A ridiculous situation legally. The only way the Supreme Court finds an individual gun ownership right in the 2nd amendment is to produce a hybrid ruling where individuals retain their firearms rights free of being well regulated militia, but have no constitutional right to any other arms. How anyone can read the 2nd in that fashion boggles my mind. The language of the amendment is very clear and purposeful for it’s time. The problem arises when people with agendas try and mold it to our time.

Comment by William Schledlup — February 19, 2008 @ 11:26 pm
So now we are back to the tired old argument that since we don’t allow people to own nukes we shouldn’t allow them to own guns certain people find objectionable. Thus we get Assault Weapon bans, High Capacity Firearm bans, unsafe firearm bans, all acceptable as long as they affect other people. But what happens when the other people become you.

I doubt you would be so supportive of a ban on military style weapons if you had to register your hunting rifle like I had to register my Henry under California’s high capacity firearm law. A little over a year ago the gun control movement tried to get all fixed magazine bolt action rifles declared HC as long as there was even a chance it could be modified to hold more then 10 rounds of ammunition. My Civil War Henry can hold 12 so it was banned for two years until the legislature amended the law, and even then they only left the door open for this recent attempt. My old Springfield bolt action is still in the sights regardless of its 5 round capacity.

I know this tale all too well. A National Guardsmen I knew was supportive of the Assault Weapon ban here in California. He had all the buzz words over how people like him should be the only ones to have such arms given his service in the Guard. Even the State Defense force was to be restricted on the grounds it was just old men and boys playing soldier. The reality was he didn’t want the alternative, a 14 day waiting period on his precious Manlicher bolt actions. Well he got what he wanted, and then some. A year after the assault weapon ban was passed, the 14 day wait was extended to all long guns. And his old arguments ended when he realized he would never get back what he felt was his right until he agreed to give back what others felt were theirs.

How Franklin got it right “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety”.

Today in California our State Defense force is actively guarding the National Guard armories (per Federal Law) while the National Guard is away in Iraq. Yet, per the State law, they do it unarmed since the State law requires Congress to declare war before the SDF can bear arms. Of course if such a thing happened the State would have to arm them, since for the SDF to arm themselves, as they did during the Korea War, would violate the Assault Weapon law. Even though the Assault weapon law allows State and Federal troops to acquire the banned weapons it makes no provision for what happens when the Guard returns and the SDF is relieved of its duty and no longer requires the weapons.

The same goes for citizens called out under the State militia code. Officially, the Assault Weapon act stated that the listed arms were being banned from the militia. And since the Federal machine-gun act prohibits even militia called out under Article One Section 8 Clause 15 we can legally be ordered to fight against AK-47 armed mexican bandits with whatever weapons are not banned under both Federal and State gun laws. All the Solicitor General has to do is show that an acceptable equivalent is available and the Federal government is legally safe. God help the state however that has banned the designated equivalent since they can be charged with a Federal crime. I guess that is why when the CMP designated the AR-15 as the approved rifle for upper level competition shoots New Jersey removed it from its Assault Weapon ban.

Comment by James N. Gibson — February 20, 2008 @ 1:56 am
No Mr. Schledlup, there is no confusion on my part nor yours. Your rationale that the people have rights but not individuals is odd at best. I can understand opposition to firearms ownership without argeeing with that position. To destroy individual liberty which of course predates the Constitution, so as to erradicate that which you do not agree with is fortunately a minority position. I hope you as an individual never have to find yourself in the position of having to defend yourself based upon a collective right. God forbid that you may find yourself in a Guantanamo detention situation. The people there may have a right against coerced confession but you alone?

Comment by Craig Canales — February 20, 2008 @ 8:21 am
Mr. Schledlup,

“…weapons designed solely for the purpose of ending a human life…”

You make a superb anti-gun poster boy. How is it that the vast, vast majority (99%+, I’m guessing) of legally owned handguns (my own included) have miraculously managed to never end a human life (or even draw any blood)? What phenomenal aberration of statistics has contributed to this incredible “lottery winning” occurrence? Having owned handguns my entire adult life (I’m a ‘boomer’), it seems amazing that I have never:

Held up a Seven-Eleven
Opened fire in a school
Accidentally shot myself while cleaning a weapon
Fired upon anyone else by plan or in anger

I often wonder how I have resisted the evil spell of the wicked handguns I possess. I must just be lucky beyond comprehension.

Keep weapons out of the hands of felons? Absolutely. Those with mental aberrations? Of course.

Refuse to honor the right to own firearms to those who are demonstrably competent to do so? Sorry, Mr. Schledlup, but that is a violation of my (INDIVIDUAL) right to do so.

Comment by Michael Samuels — February 20, 2008 @ 11:18 am
If only the Founding Fathers would have used the words “well-trained” or “well-drilled” instead of “well-regulated” to describe the militia. We would have avoided this whole mess. They must be rolling in their graves that we’re even debating this. I suppose they hadn’t considered how anti-gun forces would butcher that phrase and turn it on its heel for their own purposes.

Try replacing well-regulated with “well-legislated” or “well-governed.” I mean, what good would a well-legislated/governed/regulated militia offer in terms of battling an enemy? A citizen militia needed to be well-trained and drilled as the Framers had intended. They weren’t worried about legislating it.

Hopefully, this is emphasized. It seems to me to be the biggest misinterpretation within the 2nd Amendment.

Comment by Brent McKinnon — February 20, 2008 @ 1:33 pm
William Rawle, well respected early 1800’s historian & constitutional scholar (an actual one), knew ben franklin & GW, often paradoxially quoted by gunnuts & gun gurus, this very quote in fact:

.. Wm Rawle, ~1829: In the second article [2nd amendment], it is declared, that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent…
.. The COROLLARY, from the first position, is, that the right of the people to keep and bear arms shall not be infringed. http://press-pubs.uchicago.edu/founders/documents/amendIIs9.html

from webster’s 1828 dictionary: corollary: 1. A conclusion or CONSEQUENCE drawn from premises, or from what is advanced or demonstrated.
(2). A corollary is an INFERENCE from a preceding proposition.

.. Wm Rawle CLEARLY calls the individual clause a COROLLARY to the militia clause;
.. ie - a CONSEQUENT of the need for a well reg’d militia is that the right of people to keep & bear arms (rkba) shall not be infringed. OR, since a well reg’d militia is necessary, we INFER that people have rkba.
.. the individual clause is thus irrefutably a CONSEQUENT evolved from militia necessity, succinctly explained by a constitutionalist of the times.
.. the individual clause therefore is subordinate to the militial clause, since standing alone, the individual clause does not have a link to the militia.

.. wm rawle wrote in 1829 ‘a constitutional view of the united states’, passages from which are required reading to graduate from west point today.

Comment by A J Libby — February 22, 2008 @ 2:19 pm
.. here is the wm rawle quote I noted immediately above, in relevant near-entirety (emphasis in capitals mine):

wm rawle, 1829: In the second article, it is declared, that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent.
Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of govt. That they should be well regulated, is judiciously added.. The duty of the state govt is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life.

The COROLLARY, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people.

[here rawle is logically referring to ‘the people’ as those eligible for militia, since he has devoted the preceeding lengthy paragraph to discussion of militia & rules therein. If rawle meant rkba for ancillary reasons or people outside militia, he would not have explained rkba immediately following a discussion of militia].

rawle, cont’d: In most of the countries of Europe, this right does not seem to be denied, although it is allowed more or less sparingly, according to circumstances. In England, a country which boasts so much of its freedom, the RIGHT was secured to protestant subjects ONLY, on the revolution of 1688; and it is cautiously described to be that of bearing arms FOR THEIR DEFENCE, “suitable to their conditions, and as allowed by law.”

.. rawle refers to the english ‘right’ (rkba) clearly as NOT being absolute, since it is reserved for defensive use, by protestants. Rawle tells us that the ‘right’ is merely a restricted & infringeable one, despite the 18th century rhetoric, which has been manipulated by rightwing gun zealotry.

rawle: An arbitrary code for the preservation of game in that country has long disgraced them [english]. A very small proportion of the people being permitted to kill it, though for their own subsistence; a gun or other instrument, used for that purpose by an unqualified person, may be seized and forfeited.

Comment by A J Libby — February 22, 2008 @ 2:40 pm
wm schledlup posted: In a country where a high percentage of people own guns, you would expect a lower accident rate per gun (such as in well armed Switzerland).

.. your post from which this was excerpted was well written, william, & I agree with most all of what you wrote (see my wm rawle postings immediately above this, segues well with yours).

.. just wanted to remark that switzerland has about 8 million people who own about 2.5 million firearms (including assault rifles), or about 1 gun per 3 swiss.
.. comparably the USA has 300 million with about 260 million guns, nearing one gun per person.

.. so the USA has approx 260 million more guns than the swiss, & gun ownership is 3 times more in the USA, per capita anyway.
.. in switzerland, concealed carry is disallowed unless you can prove demonstrable need, & ’self defense’ is not considered demonstrable need.
.. you need a swiss permit &/or license to own a gun.
.. those assault rifles which are issued with each young male entering home guard (militia) service comes with a sealed box of ammunition, either 24 rds or 72, which must remain sealed until a ‘call to arms’ is issued, or a bona fide emergency arises. It is reportedly inspected yearly & if the ammo seal is broken there need be a bona fide reason why, or some form of admonishment is applied to the offender.
.. switzerland is not the gun utopia many gun enthusiasts think it is.
.. were america to come in line with the swiss gun ratio per person, she would need eliminate over 160 million guns from it’s arsenal of 260 million.
.. near half the guns in the world are in america, with only ~5% of the world’s population.

Comment by A J Libby — February 23, 2008 @ 6:44 am
I do love the internet. All I have to do is google it and I find such interesting items. Such as little pieces of sentence, or phrase that people just seem to miss.

Like this one from William Rawle on the second amendment, Chapter X, You may note the first two sentences were mentioned in one of the previous comments by Mr. Libby.

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

Seems what was lost in Mr Libby’s statement is that the prohibition also prevents the State from doing bans too. Thus, Rawle’s didn’t view it as a State right.

Then is the mention of the English Bill of rights in which Mr. Libby left off mention of the game law that Rawle viewed as a disgrace. What I particularly liked is the following missing sentence- Blackstone, in whom we regret that we cannot always trace the expanded principles of rational liberty, observes however, on this subject, that the prevention of popular insurrections and resistance to government by disarming the people, is oftener meant than avowed, by the makers of forest and game laws.

By the way, in Switzerland its sealed 50 rd boxes for rifles and 48 rd boxes for pistols, which you politely forgot they also have. As for the 2.5 million guns, some put the figure as low as 1.2 million (or just the number of assault rifles) to over 3 million. Part of the problem is that the purchase of hunting rifles are not recorded. Oh, and by the way gun ownership in Switzerland is reported to be 14% of households to our 29% making us just twice as large per capita. Of course that is just one source, a Canadian study said Switzerland had 35% of households with guns to a US total of 32%.

Outside of that perhaps you could explain something to me. If we have half of the worlds firearms, what is the Peoples Liberation Army of China carrying. At an estimated national strength of 500 million men and women (essentially a national militia) and knowing that we have half the guns and 75 million are reported in the illegal black market (40 million in India alone) that leaves only 185 million for the military of China, England, France, Canada, Germany, Russia, etc. Not really enough to go around? Just a comment about how Statistics are fine as long as you understand were they come from and the exact method in which they were produced. Otherwise you run into the study quoted by the City of Washington in its brief that showed that increased gun ownership meant an increase in homicides. The study based its increase in ownership on increases in subscriptions to guns and ammo magazine.

Comment by James N. Gibson — February 24, 2008 @ 4:28 am
gibson posts: Seems what was lost in Mr Libby’s statement is that the prohibition also prevents the State from doing bans too. Thus, Rawle’s didn’t view it as a State right.

(me libby): .. right, as long as it pertained to the MILITIA, any proposed disarmament by fed or state of a state’s militia could be appealed to constitutional enforcement of 2ndA. THAT is what rawle is saying. Because, as previously noted, there MUST be a connection regarding the people with the militia for rkba to be a corollary to the militia clause.

gibson: Then is the mention of the English Bill of rights in which Mr. Libby left off mention of the game law that Rawle viewed as a disgrace.

libby: .. I posted what I thought was more relevant, without invalidly biasing, & the link as well, so I don’t feel I ‘left off’ anything. The game law remark was an insightful aside by rawle, imo, but does not invalidate his position that indy clause is corollary to milly clause.

gibson: .. Blackstone .. observes .. that the prevention of popular insurrections and resistance to govt by disarming the people, is oftener meant than avowed, by the makers of forest and game laws.

libby: .. a tongue in cheek remark, proves what? it does not dismiss the crux of what rawle said, that the independent clause is subordinate to the militia clause.

Comment by A J Libby — February 24, 2008 @ 1:08 pm
gibson: in Switzerland its sealed 50 rd boxes for rifles and 48 rd boxes for pistols, which you politely forgot they also have.

.. I believe pistols are reserved for officers, generally less than 10% of a milforce; & I also believe these posts have a letter max maybe 500, can’t include every tedium to appease nitpickers;
.. 50 rds is new to me, I have only heard of 24 & 72 accd’g to some rule, perhaps inductees get 24 & relative ‘veterans’ get 72.
.. the point is not the allotment, but that the ammo is SEALED, how many american gunnuts would find this rule (plus the others) appetizing enough to move to switz?

gibson: .. explain something to me. If we have half of the worlds firearms, what is the Peoples Liberation Army of China carrying.

.. I didn’t say ‘half’, I said ‘near half’; recent estimates peg world’s guns about 600 million & about 260 to 280 million in USA.

gibson: .. 75 million are reported in the illegal black market (40 million in India alone) that leaves only 185 million for the military of China, England, France, Canada, Germany, Russia, etc. Not really enough to go around?

.. using updated estimates of 600 million worldwide guns & ~270 in US, leaves 330 million to ‘rest of world’, less your alleged 75 million illegals leaves 255 million, vs your 185.
.. not talking of big guns here, but small arms, AKs, m16s & the like.
.. & it’s likely ~40% - 45% of world guns in USA, so sue me.

Comment by A J Libby — February 24, 2008 @ 1:30 pm
Well someone has as much a temper as I. And someone doesn’t like it when people take what they are saying in a different way then they expected. Live and learn.

The best way to prevent such responses from the audience is to give all the information. Deleting information on the grounds it was irrelevant in your mind, only brings up the question what else is irrelevant in your mind. To label another as tongue in cheek is even worse. I could easily say the words “a well regulated militia, being necessary for the security of the State” is tongue in cheek.

Part of this issue is hunting which is the private or individual use of firearms. The argument that gun controlists use, including your self, is that the right is to maintain a militia only and thus people’s individual rights can be restricted or even destroyed. But if the militia is made up of individual people who all have been prohibited how can the militia work. Oh, its an emergency, so the peacetime laws are suspended. Guns then fall out of the sky and the people suddenly know how to shoot.

The founding fathers understood that people had to have the arms in their private hands before the emergency and had to have practiced with them ahead of time to be any good. This can be seen in the militia debate of 1798 over whether the Congress should fund the transport of arms from manufacturers to the people required to buy them for their militia service. Over a hundred years later, in the 1916 National Defense Act gun ranges were to be set-up for civilians to practice at.

The civilians so trained insured a pool of trained marksmen for potential conscription. As for the ranges, they would be used in time of war to train conscripts. As recently as 1997 the Clinton CMP board mandated the AR-15 rifle for higher level competitions even though gun controlists wanted it completely banned. Both the Generals and the Police firearm instructors briefs point out the fact that private ownership greatly assists the training of new troops and Police. When individual rights is restricted in the name of collective right, the collective created is incompetent.

Switzerland understands this. They may have the military ammo sealed, but it can be used for the defense of one self or ones home (your own comment regarding an emergency). To what use is it for the government to prohibit the militia man from defending himself when the result is he is not there to perform his duty.

By the way, I can tell you are speculating on inductees with 24 and vets with 72 rds. Why would a new recruit with an automatic rifle not have enough for one magazine while an old veteran with a semi-auto have enough for two and a half magazines. Your numbers come from the post WW2 period when the Swiss used M1 Garand rifles. 24 rds means three 8 rd “N” clips while 72 meant nine clips. Today its 50 rds for rifles, enough for one 30 rd and one 20 rd magazine.

In Switzerland they are allowed hunting weapons and ammo for it (including hollow points) with few of the restrictions imposed on the military arm. Only the military ammo is monitored since its is subsidized by the government. They support private rifle practice and have national events in addition to the required military rifle practice. And people are know to bring ammo home from these events, there is no attempt to account for every round after a shoot.

As for pistols; its officers, medical personnel, postal people, anyone in which a large rifle would be difficult to carry with them while performing their duties. Since the handgun has a limited 9 rd magazine the ammo box is truncated to 48 rds, enough for five magazines and three extra.

Comment by James N. Gibson — February 24, 2008 @ 4:46 pm
gibson: .. the militia debate of 1798 over whether the Congress should fund the transport of arms from manufacturers to the people required to buy them for their militia service.

.. because less than half of the militia were equipped with firearms (accd’g to 1803 militia census by dearborn under jefferson); this was a defence measure in the collective sense, not a move to satisfy any individual right.

gib: .. Deleting information on the grounds it was irrelevant in your mind, only brings up the question what else is irrelevant in your mind.

.. since I posted the link to what I excerpted, & made it clear that what I posted was ‘in relevant near-entirety’, it’s obvious you are nitpicking, & I won’t cowtow to your subjective spin.

gib: To label another as tongue in cheek is even worse. I could easily say the words “a well regulated militia, being necessary for the security of the State” is tongue in cheek.

.. you could say that & you’d either get laughed at or stared at incredulously.
.. but what blackstone (via rawle) said: ‘the prevention of popular insurrections and resistance to govt by disarming the people, is oftener meant than avowed, by the makers of forest and game laws’,

.. in context, blackstone said the selective game law ‘disgraced them [the english]’ - that is, was unwarranted; but it seems there would be few violators to the game law for fear of losing their firearms, & surely not more than the non protestant english population which did not have the right to begin with, the lot of which could certainly insurrect.

Comment by A J Libby — February 24, 2008 @ 6:46 pm
(I wrote): .. it seems there would be few violators to the game law for fear of losing their firearms..

.. to clarify, ‘few firearm violators’.
.. poaching was likely common, but not using firearms which made a loud noise which could be heard distantly & tracked down before the game could be hauled away (in many instances);
.. poaching with traps & bows was surely the more common way to get around the game laws.

Comment by A J Libby — February 24, 2008 @ 6:51 pm
All Swiss military firearms have been produced in calibres readily available for sale in Switzerland. The use of these weapons is encouraged and indeed expected. The emergency ammunition supplied to each soldier is just that, for emergency. There are many web sites available that are devoted to the Swiss military and private ownwership of firearms. Internet video of Swiss engaged in shooting competition while wearing civvies and happily firing away with their assault rifles is just too common to allow for misinformation as to the nature of firearms usage in that country.

Comment by Craig Canales — February 25, 2008 @ 9:09 am
canales posts: The emergency ammunition supplied to each soldier is just that, for emergency.

.. I yodelled (aka googled) & things have changed, this from june 2007:
.. “The Swiss govt is tightening regulations for weapons while the senate has approved a general ban on the storing of army ammunition at home. The senate voted 35 to 5 (2 abstentions) [to] require most of the 120,000 active soldiers in the Swiss militia army to store their ammunition in arsenals rather than at home [2,000 first responders can keep ammo at home].
http://www.tdg.ch/pages/home/tribune_de_geneve/english_corner/news/news_detail/(contenu)/96815

(cont’d): Supporters of the initiative to ban all weapons in homes say about 300 deaths are caused annually by Swiss army weapons, many of them as a result of domestic disputes. Surveys show more than a third of suicides involve firearms. The initiative calls for a national gun registry and a ban on the personal use of automatic weapons. The parliament this week approved restrictions on carrying dangerous weapons[,] and the private purchase of firearms on the Internet without authorization.

canales: .. misinformation as to the nature of firearms usage in that country.

.. talking to yourself?

Comment by A J Libby — February 25, 2008 @ 1:44 pm
.. the link I posted above got corrupted, here it is for a second try - or you can copy the entire url (link) & insert it into your address bar & it should come up in english, not french:

http://www.tdg.ch/pages/home/tribune_de_geneve/english_corner/news/news_detail/(contenu)/96815

Comment by A J Libby — February 25, 2008 @ 1:48 pm
Thank you all for what I think is one of the more rational discussions I have seen on this issue. I especially found the information about the Swiss militia interesting as a contrast to our own laws.

For my meager contribution, I do have one quibble with A J Libby’s post on February 22, 2:19pm in which he said:

.. Wm Rawle CLEARLY calls the individual clause a COROLLARY to the militia clause;
.. ie - a CONSEQUENT of the need for a well reg’d militia is that the right of people to keep & bear arms (rkba) shall not be infringed. OR, since a well reg’d militia is necessary, we INFER that people have rkba.
.. the individual clause is thus irrefutably a CONSEQUENT evolved from militia necessity, succinctly explained by a constitutionalist of the times.
.. the individual clause therefore is subordinate to the militial clause, since standing alone, the individual clause does not have a link to the militia.

I can clearly see the logic that “Corollary” is arguably synonymous with “Consequent”, but I fail to see that, by extension, “Consequent” is synonymous with “subordinate”.

Does it follows that (from the definition of Corollary mentioned in the post):

1. A conclusion or CONSEQUENCE drawn from premises, or from what is advanced or demonstrated.
(2). …an INFERENCE from a preceding proposition.

is necessarily “subordinate” to “what is advanced or demonstrated” or “a preceding proposition”?

In fact, I would make exactly the OPPOSITE assertion, that the inference (rkba) is in fact the more important clause by virtue of the fact that it can be readily inferred from the preceding proposition (the need for a well regulated militia).

Comment by Sam Houston — February 26, 2008 @ 5:45 pm
What?

Comment by Bryan Manka — February 26, 2008 @ 8:53 pm
houston posts: .. I fail to see that, by extension, “Consequent” is synonymous with “subordinate”.

.. dependent, subordinate, a corollary FOLLOWS from what is given beforehand. A corollary cannot trump what preceded it.

corollary: A proposition that FOLLOWS with little or no proof required, FROM one already proven.
A deduction or an inference.
A natural consequence or effect; a result.
http://www.answers.com/topic/corollary?cat=technology

.. rkba FOLLOWS from the well reg’d militia proposition.

A consequence or result that can be logically drawn from the existence of a set of facts by the exercise of common sense and reason.

thesaurus: Something brought about by a cause: aftermath, consequence, effect, end product, event, fruit, harvest, issue, outcome, precipitate, ramification, result, resultant, sequel, sequence, sequent, upshot. See cause/effect.

.. where’s your buddy blamblamtexbubba? this is london still exists, I post there regularly.

Comment by AJ Libby — February 27, 2008 @ 9:40 am
houston: In fact, I would make exactly the OPPOSITE assertion, that the inference (rkba) is in fact the more important clause by virtue of the fact that it can be readily inferred from the preceding proposition (the need for a well regulated militia).

.. this is absolute nonsense from sam houston; non sequitur & violates the rules of logic, backwards reasoning.
.. AS IF THE REASON FOR GASOLINE WAS BECAUSE CARBURETORS WERE INVENTED.

.. but thanks houston, for advance warning of how the pro gun crowd might try to spindoctor this.

Comment by AJ Libby — February 27, 2008 @ 8:55 pm
Now that I know that there are readers other than Mr. Libby out there I am back to push his buttons. It really isn’t fun getting him to admit leaving facts out because he feels they are irrelevant, or catch him in a miss-representation if he’s the only other reader.

So lets give him some more Pro-gun Spin: Translation, where his arguments have a problem. And, oh yes, let the nit-picking begin.

Libby commented on my reference to the militia arms debate of 1789 and the program to assist men in getting the required militia arm- Libby; “because less than half of the militia were equipped with firearms (accd’g to 1803 militia census by Dearborn under Jefferson).”

My counter: from the debate of 1789, Mr. VARNUM did not believe that the militia of any of the States are completely armed; and many of the arms which they have are of different calibers (Page 1930). Thus, its not that they were less then half armed as Libby claims, but it was they were not completely armed.

Further, and most people don’t know this, there was a caliber clause in the 1792 militia act that came into affect in 1789. By 1789 all arms were to be of “bores sufficient for balls of the eighteenth part of a pound.” Using the density of lead at 6.5 oz/ cubic in and the equation for a sphere you can compute the ball diameter at 0.64 inches. That just happens to be the size of American Army bullets until 1840 (source, Army Infantry Museum Fort Benning). Thus, thanks to Mr. Varnum we know of guns in the pre 1789 militia that were not acceptable to the law’s caliber requirements.

One therefore wonders if Mr. Libby’s 1803 militia census would include arms that did not meet the law’s requirements. Was the militia returns (as they are properly called) a census of all arms in the States, or just a report on compliance with the requirements of the law. Maybe Thomas Sumpter answered that question during the debates on the caliber clause for the Militia Act. Mr. Thomas Sumpter asked what is to be done with the arms the militia now have in their hands. Are they to be thrown away? Besides he though the provision inconsistent with the actual state of the military force of the country, the laws for the regulation of which contemplate the enrolment of riflemen among the regular forces of the country. Sumpter understood that the rifled musket toped out at 0.55 caliber.

Want more regarding the existence of arms that wouldn’t appear on the militia return. From a 1812 speech to militia volunteers by Tennessee Governor Blount, Very small bore rifles are not desirable for military service. It is recommended that none be taken along of less caliber than sixty balls to the pound. That means less then 0.45 in diameter (the bullet size for a 0.50 caliber rifle). Thus this governor felt certain guns were not military arms, so why list them on what even Mr. Libby calls a defence measure. By the way, has anyone other then me noticed Mr. Libby is English. He spells Defense “Defence.”

In regards to the 1803 militia return, it’s a red herring from the Bellesiles faction of historians. They tried to use that single return to show that gun ownership wasn’t wide spread and support Bellesiles earlier claims. The problem is this return doesn’t show half the men were not armed, its shows half the states were missing. The return was the first required after the 1792 act went into full implementation and thus several states didn’t get their return in before the document went to press.

The 1804 return is far more complete having all States and territories listed. I have copied all the militia returns in the Congressional On-line database from 1804 to 1838. I also have dug up the population census data to compare the white male population from 15 to 45 years to the listed number of men on the returns. I’ll keep the rest to myself for now, see how certain people digest what I have already mentioned.

Comment by James N. Gibson — February 27, 2008 @ 11:53 pm
“That means less then 0.45 in diameter (the bullet size for a 0.50 caliber rifle).”

No. .50 BMG is 0.511 inches in diameter, (same as electron annihilation energy in MeV).

How do you think a false premise affects your conclusion? Do you believe that any one true statement-premise makes your conclusion true, or that any one false statement falsifies the conclusion? Write small, miss small.

Comment by Doug Huffman — February 28, 2008 @ 7:47 am
A J wrote:
.. this is absolute nonsense from sam houston; non sequitur & violates the rules of logic, backwards reasoning.
.. AS IF THE REASON FOR GASOLINE WAS BECAUSE CARBURETORS WERE INVENTED.

Good… but “A proposition that FOLLOWS with little or no proof required, FROM one already proven” still does not prove that the corollary is “subordinate,” only that it is self-evident from the already proven proposition.

I accept your argument, based on Rawle’s reasoning, that the phrase “the right of the people to keep and bear Arms, shall not be infringed” is a “consequence/corollary” of the proposition “A well regulated Militia, being necessary to the security of a free State” however, that does not make the CONSEQUENCE less important than or subordinate to the PROPOSITION.

By the “rules of logic” you sited in your response, you would be required to falsify the initial proposition in order to invalidate the corollary, and the reason for putting the “Militia” clause in (as opposed to, say, “A ready source of game, being necessary to the health of a citizen”) was to have a proposition that would be near impossible to falsify simply to PROTECT the all-important COROLLARY.

Brilliant foresight on the part of the Framers, wouldn’t you say?

Nice try, though. Just not rigorous enough in the application of your own rules of logic.

Comment by Sam Houston — February 28, 2008 @ 11:17 am
houston: that does not make the CONSEQUENCE less important than or subordinate to the PROPOSITION.

.. individual clause IS the subordinate clause, to counter gun gurus who argue that militia clause is subordinate to individual clause, due grammar etc..

.. if something hinges upon another law or rule, it is dependent upon that law or rule as a basis, so if you concede that rawle is correct, there MUST be a dependent link to the militia for rkba to hold fast.

SH: By the “rules of logic” you sited in your response, you would be required to falsify the initial proposition in order to invalidate the corollary,

… doubledouble talktalk… (cited)

SH: .. the reason for putting the “Militia” clause in (as opposed to, say, “A ready source of game, being necessary to the health of a citizen”) was to have a proposition that would be near impossible to falsify simply to PROTECT the all-important COROLLARY.

… hahaha! you could spin mt everest just by looking at it.
.. obviously a flimsy manipulation of what rawle said, to fit the awful news rawle provides.
.. rawle proves what we’ve been saying for years, that rkba is dependent upon a well reg’d militia.

Comment by AJ Libby — February 28, 2008 @ 3:14 pm
AJ,

I respectfully disagree with “rawle proves what we’ve been saying for years, that rkba is dependent upon a well reg’d militia.”

The RKBA is not dependent on a well regulated militia, it is what enables it. I expect the Supreme Court will acknowledge this in their opinion.

Comment by Bryan Manka — February 28, 2008 @ 3:21 pm
manka: The RKBA is not dependent on a well regulated militia, it is what enables it.

.. wm rawle contends that rkba is dependent upon a link to the militia, & wm rawle lived back then & knew more about the founder’s intent than you or sam houston do.

manka: I expect the Supreme Court will acknowledge this in their opinion.

.. this wouldn’t surprise me at all, it’s a rightwing slanted supreme court.
.. one thing I can guarantee it won’t be a unanimous decision, when ruling on whether it’s an individual or collective rkba.
.. I suspect 5-4 or 6-3; if it’s 6-3 you win.

Comment by AJ Libby — February 28, 2008 @ 4:39 pm
.. gibson, read this for info on how ample guns were in early 1800, wm claiborne log, territorial governor of louisiana:

Jan 1802 - March 1802 Wm Claiborne .. struggles to begin the job of turning the frontier atmosphere of the territory into a working democracy. The laws of the previous legislature should be repealed, the judiciary and the militia are a sham.

march 1802 Claiborne continues to have difficulties organizing the militia
mar02 The president has considered the lack of arms in the Mississippi Territory and is sending 500 rifle guns from Phil. to NewOrleans… He is also sending 300 muskets to Ft. Adams. They should be sold only to militia and at a price high enough to prevent speculation. Claiborne - if the entire shipment will not fit on the army boat, arrange a shipment on a public schooner
apr 02 Territorial Militia still disorganized and needs arms.
may 02: The president is sending 500 rifles and 300 muskets
july02 (gov claiborne) believes the militia is finally coming together. It has received 60 muskets from Ft. Adams. They are not in good shape and he will sell them for $8. Vice Consul at NewOrleans has delivered 16 boxes of rifles (160 weapons). He has seen no public schooner yet. Encloses the number and strength of the militia and the conditions he has stated for purchase of rifles by citizens. The rifles are popular with the militia, while the muskets are not.
1803 Claiborne states that now he has 2000 militia well organized and a portion, maybe 600 men might take possession if there are only Spanish troops to defend the city.

12 1803 militia is not well organized. Difficulty arises from two companies of people of color. Claiborne believes that to recommission them would outrage part of the nation, but to not recommission them might produce future mischief. To disband them would raise an armed enemy within the territory and to disarm them smacks of tyranny. He begs a quick decision from the State Department.
http://www.enlou.com/wcccletters/wccc-letters-index.htm

Comment by AJ Libby — February 28, 2008 @ 4:51 pm
“I learn with great concern that portion of our frontier so interesting, so important, and so exposed, should be so entirely unprovided with common fire-arms. I did not suppose any part of the United States so destitute of what is considered as among the first necessaries of a farm-house.” –Thomas Jefferson to Jacob J. Brown, 1808.

George Washington had this to say about firearm supply, 1776: “I have tried every method I coud think of to procure arms for our men, they realy are not to be had in these governments” (misspellings george’s not mine)

Comment by AJ Libby — February 28, 2008 @ 4:53 pm
Mr. Libby,
You said “if something hinges upon another law or rule, it is dependent upon that law or rule as a basis.” I can agree with that, as a logical premise, although I would want to add “exclusively” after the word “hinges” — Sorry for the caveat. I know “spin spin double talk double talk”! Quick! Shout him down before he makes sense! Bandy about words such as “flimsy” and “manipulation”!

I THINK I do understand the point you’re trying to make. Stripping it down to the base logic:

“If Proposition A, then Corollary B”

I can accept that; however, I disagree that it therefore must logically follow that “If NOT A, then NOT B” or “B, Only If A”.

I merely point out that Rawle does not give you any DIRECT support for a limitation on RKBA (”If NOT A, then NOT B” or “B, Only If A”) only that RKBA is a Corollary of the need for the Militia (”If A, Then B”) and, therefore, the understanding of Rawle you present seems to be based solely upon the idea that “Corollary” is equivalent to “Subordinate”, which isn’t necessarily the logic present in the text itself, but could be your own value judgment of the relative importance of the two clauses.

Also, grammatically the “Militia” clause is actually the subordinate clause. You can tell by the fact that it cannot stand alone as a sentence. The subject of the sentence that makes up the second amendment is the “Right”, not the “Militia”.

Comment by Sam Houston — February 28, 2008 @ 4:56 pm
Mr. Huffman (No. 113) should be more careful about what he says (write small, miss small). Obviously he doesn’t know the difference between a muzzle loading, black powder, late 18th century, 50 caliber rifle with a muzzle velocity of 950 ft/sec and a early 20 century breech-loading 50 cal weapon that was designed to defeat tanks with a muzzle velocity of over 2,700 ft/sec. The false premise is yours sir, but you are not alone. I happen to know of one blog discussion on this case where one of the members stated that World War 1 era bolt action rifles were crewed weapons because they all have spotters working with them.

If Mr. Huffman wants to debate the issue of modern 50’s, however he will get very little argument out of me. Whether the court decision is individual or collective, I’ll hold with Dick Cheney on the need to bear the arm (as in fire it from the shoulder). Crew served weapons not with standing, the 50 caliber Muzzleloader I previously mentioned I can fire from the shoulder and not have even a bruise. As for the BMG Mr. Huffman mentioned, well what does one say about something so heavy its nearly impossible to shoulder fire. And if you actually did your next location will be the Hospital with a dislocated shoulder, or worse.

Now for the Corollary issue, which I think has gone on long enough to make certain people feel proud of themselves. But now certain people need to explain one historical fact: Madison’s first draft of the 2nd amendment. If the requirement is that RKBA has to follow a well organized militia why is the early draft this way. “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.”

Now for the extra bomb. Mr. LIbby feels the corollary is the smoking gun (pardon the pun) to the view that RKBA is militia based. Yet most historians and scholars on the gun control side of the argument have taken a different tact. They don’t mention this corollary and have instead decided to mention the early draft of the 2nd. Why, to make the argument that the third clause shows that bear arms means military service and thus RKBA means military service on its own (source: 9th circuit court ruling, Silveria Vs Lockyer).

To recognize the corollary means they cannot even mention the early draft of the 2nd amd: To do otherwise means they would have to explain why Madison worded the draft backwards. As it is the Historians Brief is devoted to proving that there was no individual right to arms in the English Bill of rights. This is to prevent the possibility the court might argue that the 2nd doesn’t create a right, just protects one that already existed. If the court were to see it as an individual right prior to the 2nd amendment, the corollary becomes a false premise on the part of Rawle.

Comment by James N. Gibson — February 28, 2008 @ 9:53 pm
gibson: To recognize the corollary means they cannot even mention the early [madison] draft of the 2nd amd: To do otherwise means they would have to explain why Madison worded the draft backwards.

.. no gib, rawle commented on what was in effect at the time & made his judgement on 2nA as infamously worded.
.. If madison’s version HAD been adopted, we can’t say what rawle would have written, but it is non sequitur today to imply simple substitution, that due flip flop wording he would have referred to a well reg’d militia as the corollary.

gib: If the court were to see it as an individual right prior to the 2ndA, the corollary becomes a false premise on the part of Rawle.

.. the false premise is what you wrote above, including the part where you wrote: ‘To recognize the corollary means they cannot even mention the early [madison] draft..’.
.. a rough draft is simply that, & while it certainly may be indicative of what was trying to be said, rawle remarked on the final version not the rough draft; so rawle as well as madison can be concurrently used to argue the militia interpretation.

Comment by AJ Libby — February 29, 2008 @ 6:10 am
I apologize for leaving the field so abruptly. The internet connection at my office being out since Monday morning. Swiss military weapons are still being used in competition and ammunition for same is still available for issue as well as purchase in Switzerland. Time for more research Mr. Libby. You may consider www.swissrifles.com as a source for beginners.

Comment by Craig Canales — February 29, 2008 @ 8:47 pm
Regarding Libby 118 gibson, read this for info on how ample guns were in early 1800,

It took me awhile to pull this all together but I wanted to do a good job. Claiborne, a territorial governor on the fringes of the nation. A territory that ran from the Western border of Georgia to Natchez with several major Indian nations immediately North, and the Spanish to the South. By 1800 census 9,000 souls, 4,000 of whom were slaves. Of the 5,000 whites, 1 in 3 are under age 15 and about 1,000 were women. That leaves about 2,500 men of militia age. Shall we get started.

First, try to do better then grab a few “choice” sentences from the link you provided.

Second, there is in fact not a single copy of a Claiborne letter on this site. A true scholar would not take someone else’s summaries of the content of these-letters but would quote direct text from them. In your comment 119 you tried this with Washington and Jefferson, but in this comment you started with the website author’s title summary for all the individual summaries of Claiborne letters dated from January to March 1802. Hardly definitive proof of no guns

By the way, within 50 miles of my local I have five university libraries with bound or microfich copies of all the letters. But since any quote I make from the letters will not be immediately verifiable to the other members of the blog, I’ll stick to what you missed on the website.

That being said, regarding your third, fourth and fifth note: the shipment of 500 rifles and 300 muskets from the President. Just because the letter was sent to Claiborne in March doesn’t mean he had the information that day (there was no Email). Claiborne only received the letter in early May hence the April note of yours (Note four) that the militia still needed arms (he had not received word that his request had been granted the month before). After he received the letter telling him of the shipment he sent a letter to Bartholomew Shaumburgh (The receiver of your fifth note) telling him the guns were coming and to get started on a blockhouse at the town of Washington (Ft Dearborn) and then sent a second letter to Washington outlining his procedures for the distribution of the guns when they arrived.

By the way, you completely missed the comment in your fourth note regarding the laws being unpublished. If you had gone through the other letter summaries you would have seen the reference to the citizens in Pinckneyville (south of Ft Adams) wanting to form a Militia company, but Claiborne telling them the law does not yet allow him to form one there. Part of Claiborne’s militia problem was the lack of militia laws. In a speech on March 1st, Claiborne outlined the importance of a strong militia to the free men of Mississippi Territory, rallying the citizens around the recently passed Militia Laws of the territory. And even when he had the law passed it couldn’t be enforced until it was distributed from the printer. That took until May according to the information on the website.

Going back to your note2: Claiborne was still having problems organizing the militia: how do you organize the militia when you have no laws to organize them under. By Libby’s Corollary argument, first comes the well organized militia and then, “The Corollary” the right to keep and bear arms. Yet, why would a group of unarmed men ask a territorial governor with no arms as well for permission to form a militia company. And why would he answer that the present law prevented him from forming one there, instead of saying he didn’t have the arms for such a force.

Again regarding the fourth note, you also missed that arms were arriving. Your fourth note was on April 3rd, 1802. Four days later Claiborne was informed that a brass cannon, 80 muskets and other items were enroute from General Wilkinson. They arrived at Claiborne’s house in Natchez on April 12th: He sent 40 muskets away with a Samuel Postlethwait and then sent a letter to Shaumburgh to pick up the rest when he visits Natchez. Of course the next month Claiborne sent Shaumburgh the other letter telling him that more arms were coming and to get the blockhouse built. Then on June 6th Claiborne learned the rifles had arrived in New Orleans. Total time from Presidential letter to delivery by sailing ship to New Orleans: three months. Obviously Jefferson didn’t have to wait for the guns to be built, these rare arms were actually in-stock in Philadelphia.

By the way, what happened to those 300 other rare muskets previously mentioned. The Rifles were at New Orleans but no mention of muskets. The muskets were already at Ft Adams Mississippi, gathering dust as the Army awaited completion of Ft Dearborn. The Army would not deliver the arms until a storage facility existed to maintain them until purchase by the militiamen. Claiborne had to request 60 of the muskets to be sent to his home (like the earlier delivery of 80 muskets). And that is where the 60 old muskets came from.

Regarding the rifles are popular bit (note 6), read Clayton Cramer’s book Armed America. Claiborne offered the muskets for 8 dollars with no other requirements and had to work to get them sold. To buy a rifle he set a price of 14 dollars plus required the man to have a certificate from a militia company captain showing he was both enrolled and in want of Arms. Even with these requirements he had 22 certified buyers lined up on September 19th, 1802 when distribution began.

And now we get to the fun. On September 17th Claiborne sent Dearborn a militia report showing 2,186 infantry (no Riflemen), 204 officers and non-coms, 51 officers & dragoons, 11 dummers and fifers, and an artillery corp of 35 men and officers. This is four months before your seventh note regarding his proposed force to take New Orleans. So the force existed earlier then you suggest, and it covered nearly all able-bodied men in the territory based on census data.

The report confirms the Brass 3 lb cannon, and 380 muskets; but also shows 390 rifles in service. This is impossible if the government supplied all the rifles in the militia since distribution began two days after the report was posted. Even if the certified buyers are being included on the report, there were only 22 mentioned in the letter of the 19th, not 390. And if the return is, as certain people would suggest, a listing of arms supplied for the militia why is the number not 500 since 500 rifles were delivered. Further the report lists 50 pairs of pistols meeting the cavalry requirements of the militia act: that’s 100 pistols. No mention of any pistols being sent by the government at all, so where did they come from.

Again, people owned firearms. People just didn’t always own firearms that met the requirements laid down in the Federal militia return. Shotguns were not acceptable for militia service by the law of 1792 and with the caliber requirement the Brown Bess wasn’t acceptable nor were rifles below a certain caliber. Thomas Sumpter pointed this out during the debates over the caliber clause in 1791. And the militia return was not a census, but a report on compliance to the requirements of the 1792 militia act.

I’ll finish this comment with your last note “Dec 1803, the militia is not well organized. Difficulty arises from two companies of people of color.” You obviously didn’t read your link very well. Claiborne was now talking about a militia unit in Louisiana not in Mississippi. In December 1803 Claiborne became territorial governor of Louisiana following its purchase from France. Whats more interesting is that these “colored” units even were armed, given Libby’s view that the French would have only provided them arms for French military purposes. Given that logic why did France leave them (the arms that is) after they sold Louisiana to us.

Comment by James N. Gibson — March 2, 2008 @ 9:39 pm
.. firstly, I commend you gibson for your in depth research, credit where credit is due, a knowledgeable opponent, not a run of the mill gunnut;

gib: you started with the website author’s title summary for all the individual summaries of Claiborne letters dated from Jan to March 1802. Hardly definitive proof of no guns..

.. was not meant to be, only as corroborative evidence with jefferson’s remark (& tho a bit dated by 1800, GW’s as well).
.. I was aware of the population size, would seem the more easy to arm in that sense, tho you are right, hardly conclusive evidence.
.. regrettably & with due respect to your own research, I can’t hash thru your argument since I haven’t the time to weed thru this for what little reward, & much of it is too subjective, both on your part as well as the 1800 report, as well as speculative. We would just end up as punching bags with no true winner declared, outside of partisanship banter, which is obviously with you for now.

gib: .. the militia return was not a census, but a report on compliance to the requirements of the 1792 militia act.

.. I’d not encountered this argument, don’t know how much merit to give it, it is subjective you know; your argument of course might be that suppression of arms reports would tend to give reason for more arms ‘funding’ (r giveaways the better word?), while mine would likely go for a truer report so as to give appearances of respectability & dependability, state’s rivalry - either way subjective unless you provide stiffer argument.

.. if arms were indeed in abundance as you contend, account for their origin; prior to revwar there were no national armories, only private gunsmiths, making tops a thousand or 2 per year (& most I daresay made yearly mere dozens to hundreds, some none just repair);
.. the only record I have of significant firearm imports to americans is the 20,000 allotment of muskets for american ‘aid’ during french indian wars, 10 years prior to revwar. The next appreciable import was of course the french 100,000 charle(magne?) muskets with the contributing ~20,000 dutch(or belgium?) shipment to washington circa 1776.

.. have you ever atttended the french indian war college seminar(s) at ft ticonderoga ny? a weekend affair about may, then a revwar seminar at ft ti about september, nominal fee of ~$100; I’ve been meaning to go but so far get put off every year. This might be the year.

Comment by AJ Libby — March 3, 2008 @ 7:18 am
This no one else chimes in, they must be watching the election.

Mr. Libb, In regards to your last comment, where did the guns come from. You must open your eyes to the possibilities. The French and Indian Wars (which you mentioned the war college) and the “Trade Guns” add both a conflict in which colonials were armed by their respective governments, and a trade system that did involve the pre-revolution importation of guns from Europe. During the war French muskets and Indian trade guns would have been seized by colonial militia and taken home as war prizes. The British would have had no use for either given that both weapons were not of British military caliber/regulation. It is reported that on March 18th 1776 a Jacob Winey was offered money for a group of 649 muskets he owned that were believed to have been from the French an Indian war. Records also show a Jonathan Potts and George Nagel of Berks Co. Penn in business repairing French and Indian War guns.

The subsequent Pontiac rebellion added to the trade guns in public domain as frightened colonials purchased anything available during the year of panic. One such supplier to Indian Trade was Simon and Levy of Lancaster Penn. It is reported that in 1776 they were the supplier of most of the arms to the Pennsylvania Committee of Safety. Washington To Congress, May 5th, 1776.“In the hands of the Committee of Safety at Philadelphia, there are, according to Colo. Wain’s Acct. not less than two or three thousand stand of Arms for Provincial use; from hence, he thinks a number might be borrowed by Congress.

Now as you suggest, armorers made up the major share of gunsmiths in the colonies. But impressment of these men into British service in the French and Indian Wars, Pontiacs War, and Even Lord Dunsmore’s war created a huge pool of men experienced in fixing and even assembling arms from available parts. Nearly all the Safety Muskets were cobbled together from parts received from other sources. Henry Hollingsworths factory in Maryland made barrels for several assemblers. One such assembler was Robert Reed who completed 30 Safety muskets in three months. Elizabeth Furnace was another barrel source using Hessian POWs as workers. And there was Andover Furnace in NJ which was actually Tory owned (Congress appropriated it).

Stocks could be formed from available wood, barrels had indigenous sources, but the locks could be a problem (or could they). Washington To Congress, March 29th 5th, 1777 The arrival of the Arms, Locks and Flints, you have been pleased to mention, is a most fortunate and happy event. I join you most sincerely, in congratulations upon the occasion. Then again there is reference to a Mr. Messersmith of Maryland who supposedly produced 10 locks a week. After the revolution large quantities of surplus barrels and locks found in British forts were sold off to American “contractors.”

Armourers also assisted in maintaining the weapons the Army had, or fixing weapons taken from the enemy. Washington to Philip Van Rensselaer, May 17, 1776. Sir: I received your Favour of the 6th. Inst. and am of Opinion, as you have not a sufficient Number of Armourers at Albany to repair the whole of the Arms in your Possession, that whatever more you have than can be repaired in a convenient Time, had better be sent immediately to the Armourers here. After the war, in 1785 the state of Pennsylvania paid a John Ray to repair Indian rifles.

Washington To Congress, August 5th, 1777 One great Cause of the Waste and abuse of the public Arms is the want of a Sufficient number of Armourers to attend the Army. If the Smallest matter is amiss in the Lock, the Gun is useless, and if an Armourer is not at hand to repair it, it must be returned into the Store and a New one drawn, or it is thrown aside into a Baggage Waggon and perhaps lost or broken by Carriage. The want of Armourers also gives the Officers a fair Opportunity of attributing many things, which are really owing to their inattention to their Men, to the impossibility of keeping the Arms in order without such persons; And it is no uncommon thing to find Arms returned as defective, upon close inspection, to want only rubbing and cleaning.

As for manufacturers with factories I’ll name some right now. The first was Hugh Orr who supplied 500 muskets for the Massachusetts militia in 1748. Another was William Henry of Lancaster County Pennsylvania who made Rifles during the French and Indian wars under British Contract. According to the 1808 musket contract records Henry’s firm was able to produce over 1,000 military muskets a year. Lewis Prahl of Philadelphia who could deliver 12 guns a month (and also built swords). There was the Mount Joy Armory and Forge (later called Valley Forge). And there was the French Creek factory (destroyed during the Battle of Brandywine). Estimates of gunmakers in the United States vary from 500 to 3,000 by the revolution. But even at 500, to achieve your low production number would mean each man would make only one gun every two months. At two guns a month 500 gunmakers would produce 12,000 a year.

Speaking of production rates: From 1795 to 1811 Springfield Armory produced 74,400 muskets. Spread over the whole 16 years that’s about 4,600 a year for one facility.

And there was also trade after the war with the US both importing and exporting arms to England, France, Germany, Spain, everywhere. In 1793 the start of war between France and England and the seizing of ships prompted an embargo in which Jefferson wrote this to George Hammond. “Our citizens have been always free to make, vend and export arms. It is the constant occupation and livelihood of some of them.” A second crisis with France in 1797 prompted a law that bared all firearm exports and removed all duties on arms imports. Then in 1803 a second bill to remove duties on arms imports for two years was debated: Someone was just trying to stimulate imports at a time when it looked like there might be major troop reductions in Europe and thus a fire sale in used European guns. The Peace did last long actually.

Thus, we had major factories in certain areas, cottage production from parts almost everywhere else, Federal production at Springfield, thousands of arms left over from various wars and imports.

Comment by James N. Gibson — March 4, 2008 @ 10:08 pm
gib: 1795 to 1811 Springfield Armory produced 74,400 muskets. Spread over the whole 16 years that’s about 4,600 a year for one facility.

.. but SF production of course was far weaker than that average the first 5 years, & the first year what’d it make, 1,000?

gib: Thus, we had major factories in certain areas, cottage production from parts almost everywhere else, Federal production at Springfield, thousands of arms left over from various wars and imports.

.. sure, production & availability increased significantly starting a few years after SF & HF armories started, but not enough to compensate for the lack thereof the century beforehand.
.. you’re groping at straws gib, if you think your sources provided enough guns to properly arm americans during the 18th century, outside skeleton militias & perhaps most farmhouses… colonists relied upon british for defense & enforcement, & only about fr/ind wars did colonists get any significant influx of muskets, 20,000 est from brits.. this 20,000 is the largest ‘import’ grant, the americans got till charlemagnes.
.. the ones which did get produced from your sources were not mass produced, nor smaller parts mass produced, & a single part malfunction could render the musket unusable; attrition esp rust lowered the gunlife to maybe 15 years. As you know some gunsmiths took weeks to make 1 gun.
.. washington was in dire straits until the 100,000 charlemagne shipment, if not for french musquettes we’d still be british yada yada.
.. bellesiles book, which I have & have read cover to cover, would really appeal to you if you could get past the subjectivity & the bias from the gun lobby witchhunt. It is 99+% factual when you consider the objectivity, & his subjectivity you can dismiss if you prefer.

.. & when you contend: “thousands of arms left over from various wars and imports.”, that’s non committal as h***, doesn’t say much of anything since while it’s true, could mean as little as 2,000. The main imports (1776) were gobbled up by revwar, & attitted or stolen therein; .. from earlier wars circa 1740’s, they’d likely ALL rusted out by fr/ind, good only for shaking in the air at a distance.

Comment by AJ Libby — March 6, 2008 @ 8:23 am
“Since a standing army is necessary to the protection and security of this country, the people have the right to bear arms to counter this necessary government force.”

Comment by marcus martin — March 10, 2008 @ 8:58 pm
The issue of the right to bear arms seems to be so dissected that it is hard to determine the real state of affairs that the forefathers of this country made so clear in the past. The simple thought of being able to defend ones family with the right of a firearm should be clear in history. That the individual would be able to pick up a firearm and defend oneself and country regardless if joined in an organized group. Taking away the rights of firearms is the beginning weakness of this great country. Just ask the legal immigrants of this country who came from a dictatorship who have properly simulated into citizens. Whether D.C. is a State or province makes no difference to an invading country. Regardless how you slice the proverbial apple pie it is still an apple pie.

Comment by Georg F. Nassmacher — March 12, 2008 @ 10:34 am
After reading all the previous comments following the information concerning the Supreme Court case at hand, I find it impossible to just walk away without adding my 2 cents. Perhaps more accurately I should say my own common sense. That wasn’t meant as an experts play on words, just a simple pun of sorts. I promise that I’ll not get carried away with picking apart 2nd amendment grammar, as I’m sure this will likely contain grammar, and/or spelling errors before I’m done. Besides I’m sure most people reading this have an idea of what the 2nd amendment says. I’m certain the authors of the constitution were at the very least educated people for their time and even ours too. I, myself, graduated high school and lasted for one year of college. That by no means qualifies me as a genius, but I feel that I’m no fool either. At the very least I can employ a fair amount of common sense. Sadly I feel that is a quality many these days seem to lack! Even many people I believe to be far smarter than myself. This is why I personally find it so hard to understand why, no matter how hard you wish to disect the meaning of what I read as plain or common sense language of the 2nd amendment, can mean anything but what it plainly says! After all, I consider myself “people”. And when they say “arms”, I’m certain they didn’t mean my upper body appendages, but instead weapons common to their day. Once again an interjection of common sense - this would mean knives, swords, bow/arrows, shotguns, rifles, pistols that were available in those days. One could reasonably assume the average hunting or defense arms available to many back then. So, if you fast forward 2 centuries to present day, I feel it’s not unreasonable for me to own 3 handguns, a rifle and a shotgun, even though I’m a resident of the “bend-over” state. In case you’re curious, that would be N.Y. After all, I love to hunt and target shoot. I am not a criminal, nor does being a multiple Smith & Wesson owner cause me to uncontrollably wish to become a serial killer of Grandma’s or puppies! To me this is all very simple. How can there be any right more basic than that which allows me to save myself from harm or death at the hands of a dangerous threat at home or elsewhere - whether it be a vicious dog, or crazed crack-head with a weapon of their own? If our Supreme Court is unable to grasp this idea I have only one question for them. At what date did our laws themselves become of greater value than the citizens it was meant to protect and serve? I will admit however, that many of the anti-firearm people I know do have a valid concern. I can’t tell you how many times a person will tell me that violent crime in their area is out of control, followed by “because there are too many guns on the streets”, and somthing needs to be done about it! These same folks are shocked when I tell them that I agree with them with the exception of one specific word in their statement. This then causes them to ask “which word”? I then say to substitute the word “guns”, with the word criminals! This always results in a puzzled face, followed by,”what do you mean”? When you inform even very intelligent people that there are numerous laws already in existence regarding firearms, as well as violent and/or criminal behaviour, that are often times only rarely or never enforced, these same folks then will stare off into the distance, pause, then say you’re RIGHT! It seems to me that the 3 presidential candidates wish to dodge this issue as if it were one of those roadside IED’s in Iraq! If I were a leader in this country, I’d rather spend our national resources on more jails here to protect us from our own criminal element, as opposed to spending money on people other than Americans! Sorry, but I care a lot more about us here in the USA than Arabs in Iraq or folks anywhere else than America! Now that I’m done venting, or ranting, you may go back to something else. I suggest common sense - if you’re interested! Thank you fellow Americans!

Comment by William Richardson — March 18, 2008 @ 10:19 pm
I predict the Court will find that the Second Amendment guarantees an individual’s right to bear arms, though like other rights enumerated in the constitution, this one is also subject to government’s REASONABLE regulation, which reasonableness is lacking in the case.

KYJurisDoctor

http://osi-speaks.blogspot.com/2008/03/scotus-to-decide-if-second-amendment.html#links

Comment by Osi Onyekwuluje — March 19, 2008 @ 11:24 am
I am glad we are actually having this discussion in the courtroom. The time has come for a reasonable, non-emotional response by the US Supreme Court. I see a lot of people speaking for the logic of this case, and that it is indeed an individual’s right.

As a police professional, I have gotten a little tired of people calling for disarming the public in my name. As far as I can tell, the data still shows that the areas of greatest crime tend to be those with the greatest “control” on guns. I can also speak from almost twenty years expereince, that criminals (you know, the ones we don’t want to actually have the guns)are really not all that big about worrying about gun laws.

Hopefully we can talk about the ways to deal with crime, and find solutions that don’t punish the law-abiding citizen.

Comment by Brian Jensen — March 21, 2008 @ 11:14 am
After considering the words exchanged in Washington D.C. v Heller, and the subsequent observations of them and their analysis, I note that no one anywhere debated the actual events at Lexington and Concord. That they fail (miserably) to place the argument regarding “Strict scrutiny” in its proper context is revealing, not to mention unsettling.

For those who are not fully aware of the events as they took place, and that includes many, THIS is, in exceedingly brief summary what happened to open what we now call “The Revolutionary War”, and in fact, what led to the insistance by the burgeoning States to include what ended up as the 2nd Amendment in the BoR:

On April 18, 1775, General Gage sent Lt. Colonel Francis Smith with 700 men to seize the cannon and ammunition from the colonists at Concord. They were divided, some going to Lexington first, others on to Concord. At Lexington, upon encountering armed miltiamen ordinary citizens all, Major John Pitcairn, waving his sword, yelled : “Disperse ye damned rebels”, and the fight was on. The Battle of Concord followed shortly thereafter. Miraculously, these ordinary armed citizens routed the greatest army in the world, and the rest is history.

The interesting and relevant issue though was that the British troops were NOT sent to remove the citizens’ small arms. They were sent to remove their cannon and ammunition. The citizens used their small arms to defend their possession of heavy weapons, field pieces if you will.

This then is the context in which the possession of so-called “dangerous weapons” must be placed when understanding the intent and meaning of the 2nd Amendment. Such gives the lie to any absurd assertion that “strict scrutiny” may be employed to determine what can and/or cannot be “permitted” by the 2nd Amendment.

Accordingly, when the attempt to interject the loaded (excuse the pun) question “So do you think the 2nd Amendment covers bazookas, rockets, and artillery?” is trotted out, the answer can only be not only “YES!”, but “irrefutably and unequivocally YES!”.

Sadly, we too oten fail to point this out when the subject of so-called “assault weapons” arises. That may be one of the reasons we have allowed our enemies to disarm us so readily, and easily. By failing to present a cogent and historically substantiated argument, we allow them to rationalize that which is patently untrue, and arrive at a conclusion that has no basis in fact.

Comment by Mitchel Krouse — April 1, 2008 @ 3:01 pm
Let’s put this in the simplest possible terms. The contitution does not give me rights. The constitution, in particular the Bill of Rights, restrains the government from infringing on my rights. The first ten ammendments, referred to as the Bill of Rights, are all in reference to individuals. By extension, since the collective is composed of individuals, they apply also to the collective. This constitution describes a governmnet that derives enumerated power through consent of the governed.

Comment by Jeff Anderson — April 2, 2008 @ 10:52 pm
Libby,

You only harm your credibility by labeling those of us who believe that we indeed have an individual right to keep and bear arms “gun nuts.” It makes it all the easier for me to dismiss you as a “gun grabber.”

Comment by Jeff Anderson — April 3, 2008 @ 12:19 am
Does anyone else out there get tired of being dismissed as a “gun nut”. You know, the term that people use when they don’t want to go over the facts or constitutional arguments about gun control, but instead want to rant on about the emotional argument as to why guns are “bad”. It’s how you dehumanize a person or group because you don’t actually have a factual argument that will hold up.

The Bill of Rights is there just for that reason. To protect us citizens from being harassed and persecuted by our government based upon flawed (albeit they mean well) arguments. In a sense, the “gun nut” as they call some, are publicly flogged and mocked to the point of discrimination. Just food for thought.

Comment by Brian Jensen — April 5, 2008 @ 10:28 am
FIrst, to Mr. Jensen and Mr. Anderson, Mr. Libby is obviously Bellesiles faction. The key in this is to argue the truth so well that he and the others like him at least recognize your not “The run of the mill gun nut.” Also, anyone who can claim “Arming America” is 99% factual discredits themselves in any scholarly discussion.

But then again, the gun control opposition doesn’t seem to understand how easy it is to dismantle their scholarship. According to them, at the time of Lexington, all the militia weapons were kept in the nearest armory and not in the homes of the men. If that were so our history of the event must include the 10 mile morning hike the Lexington Militia took to Concord to get their arms and then return in time to meet the British.

As for the statement that the Bill of rights protects individual rights, the opposite is what the gun controlists are arguing. In the third Brady hard hitting response to the Heller ruling they argued that the first ten amendments are collective rights. The rewriting of our laws, let alone our history is a major part of this debate.

Comment by James N. Gibson — April 8, 2008 @ 3:36 am
Mr. Gibson,
You are absolutely correct that we need to come armed with facts to dispute arguments opposing individual rights guarantees in the Bill of Rights. Those of the mindset of Mr. Libby are unlikely to be swayed, however, many who are undecided or simply uninformed will benefit greatly from the presentation of verifiable facts. I gladly defer to those like yourself who have more comletely studied the history surrounding this debate as well as the founding of the country.

Comment by Jeff Anderson — April 8, 2008 @ 7:51 pm
gibson: .. anyone who can claim “Arming America” is 99% factual discredits themselves in any scholarly discussion.

.. what I actually said: post 96, me: .. “bellesiles book .. is 99+% factual when you consider the objectivity, & his subjectivity you can dismiss if you prefer.”

.. I’d gauge Arming America between 50% - 75% objective, the rest subjective, so I guess your credibility suffers, eh gib?

gibson: .. gun control opposition doesn’t seem to understand how easy it is to dismantle their scholarship.

.. let’s hear how you dismantle wm rawle:

Wm Rawle, ~1829: In the second article, it is declared, that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent…
.. The COROLLARY, from the first position, is, that the right of the people to keep and bear arms shall not be infringed. http://press-pubs.uchicago.edu/founders/documents/amendIIs9.html

from webster’s 1828 dictionary: corollary: 1. A conclusion or CONSEQUENCE drawn from premises, or from what is advanced or demonstrated.
(2). A corollary is an INFERENCE from a preceding proposition.

.. Wm Rawle CLEARLY calls the individual clause a COROLLARY to the militia clause;.. ie - a CONSEQUENT of the need for a well reg’d militia is that the right of people to keep & bear arms (rkba) shall not be infringed.
.. the individual clause is thus a CONSEQUENT evolved from militia necessity, succinctly explained by a constitutionalist of the times.

.. wm rawle wrote in 1829 ‘a constitutional view of the united states’, passages from which are required reading to graduate from west point today, & he was specifically addressing 2ndA when he wrote the above. Rawle was an ACTUAL esteemed constitutional scholar, was appointed atty general of pennsylvania by geo washington.

Comment by AJ Libby — April 9, 2008 @ 8:22 am
Jeff & brian: You only harm your credibility by labeling those of us .. “gun nuts.”

.. you mean that’s all it takes to gain more credibility with gunworld? just stop using the word ‘gunnut’ & I’ll be more readily believed?
.. golly, nevah realized dat; all I need do is stop using the word gunnut & gunworld will start treating me better. They’ll go, “Gee, maybe he’s right”.
.. Sheesh, thanks for the heads up.
.. I’ll gain so many converts I pant in anticipation.

Comment by AJ Libby — April 9, 2008 @ 8:28 am
Libby,
I never said you would gain any additional credibility, or that you would even be “more readily believed”, only that you harm any credibility you may have. Is that a COROLLARY or an INFERENCE? Is it CONSEQUENT? Maybe it’s just that those who believe the Bill of Rights grants rights rather than spells out inherent rights that are not to be trampled on by the government are simply OBTUSE.
Pant all you want. Wet your pants, if you are so inclined. Your arguments, thus far, fail to sway me.

Comment by Jeff Anderson — April 9, 2008 @ 3:50 pm
I see Libby is back, too bad he neither has a good memory or how to scroll.

Post 96 was the first one in which you mentioned the Rawle Corollary, not Bellesiles. Thats how far back he has been pushing that logic. I still don’t think he liked me mentioning in post 121 that if the Corollary is correct why did Madison’s original draft of the second amendment put the right to keep and bear arms first before mentioning a well organized militia.

As to his earlier Bellesiles comment, I leave it to the rest of the readers to interpret who’s lacking in credibility. Particularly when Mr. Libby doesn’t remember he made his statement in Post 127 not Post 96. And now he says I am loosing credibility because he now gives “Arming America” a potential 50-50 split between factuality and objectivity.

Comment by James N. Gibson — April 10, 2008 @ 12:48 am
jeffanderson: Pant all you want. Wet your pants, if you are so inclined.

.. you will gain more credibility amongst people in general if you refrain from juvenile ad hominem, makes you look more childish.

anderson: .. we need to come armed with facts to dispute arguments opposing individual rights guarantees in the Bill of Rights.

.. yet you didn’t use any facts at all, nor even mention any counterpoise to wm rawle specifically discussing 2nA in his 1829 book ‘a constitutional view of the united states’.
.. how should modern day gunnuts & gun gurus know more about the true intent of 2ndA than an actual constitutional scholar from 1829.
.. the main obfuscation comes from gunnutted side.

Comment by AJ Libby — April 10, 2008 @ 8:50 am
Libby,

I believe the issue was that there are those who, rather than speak over the facts of an issue would instead fall on emotion and dehumanize those engaged in the discussion by calling us names. My credibility comes from the truth of the argument, because truth is truth, no matter how you slice it.

The sad truth is that in this argument, as in many others, it devolves into name calling and we don’t actually talk. (We as a society have lost our ability to work things out and talk through issues.)

So, I’m not calling anyone a “liberal” here, nor am I calling for every house to have a tank parked in the back yard. I am saying the statistics show that the areas that have heavy gun control tend to have greater violent crime. It also shows that areas that have right to carry areas tend to see a drop in violent crime and property crime goes up. (Basically the difference between getting car jacked and having your unoccupied car taken from your driveway.) Neither is great, but there is a definite difference.

The gun controls tend to put law abiding people in a position of disadvantage, because criminals have no incentive to obey a gun law when they will freely break others.

When it comes to the gun control argument, I just believe there has to be another way to deal with violent crime.

Comment by Brian Jensen — April 10, 2008 @ 10:28 pm
There you go again Libby. In 141 I was responding to 140, not your previous posts. What wasn’t factual about my correction of your statement about gaining credibility? You cast the first “gunnut” stone, and you complain about me using ad hominem attacks? I’m not Gibson, I prefer to just annoy people like you who lead off with “gunnut” crap. You be as long winded as you like, I’ll stick to simple paragraph long “ad hominem attacks.”

Comment by Jeff Anderson — April 15, 2008 @ 1:15 am
jensen:.. statistics show that the areas that have heavy gun control tend to have greater violent crime. It also shows that areas that have right to carry areas tend to see a drop in violent crime and property crime goes up.

.. jensen posts misleading propagunda, shows he’s brainwashed to 2ndA mythology - progun urban areas have higher violcrime than rural areas too (his coy underlying rationale), & guncontrol states have seen greater drops in violcrime rates when progun states have.. What just happened when StLouis enabled shall issue ccw? It vaulted to the HIGHEST VIOLENT CRIME RATE in america (2005). More guns, more lies.

(recent ltr to ed I wrote): Taking the 10 states with the highest violent crime rates (2005), 8 of them were PRO GUN states.
While 7 of the 10 states with least violent crime rates were also pro gun, those 7 are sparsely populated states with relatively low population densities - NY city metro area alone has nearing twice more people living inside (17million) than all those 7 states combined - NYC metro area a mere pinprick on a map compared to the 7 states comprising approx 1/4 the land mass of continental US.
St Louis enabled shall issue concealed carry handgun law circa 2004 (including stL city) & St Lou in 2005 was the US city with the highest violent crime rate, NUMBER ONE, the worst.
And that very year 2005, seven of the 10 cities with highest violent crime rates were cities in PRO GUN states.

In 1991 montana enabled shall issue concealed carry law (siccw), & since then montana’s violent crime rate tripled & is now approx doubled, similar to what happened when w-virginia enabled siccw. Both dakotas viol crime rates near doubled (tho still very low), & pennsy’s violent crime rate has not yet gone below it’s siccw start year, after 18 years. Indiana’s rate fluctuates over & below it’s siccw start year, & it took tennessee 10 years to drop below it’s sicww start year. All this while the rest of the united states generally experienced dramatic declines in violent crime rates from the early 90’s, moreso in guncontrol states on average.

MorganQuitno ranks cities & metro areas as being ‘Safest’ and “Most Dangerous”; In 2005, 15 of the 25 most dangerous cities were in pro gun states, roughly in line with population distribution of progun & guncontrol areas. However, only 11 of the 25 SAFEST cities were in progun states, 14 were in stricter guncontrol states, inordinately boding well for guncontrol efforts.
When we look at violent crime rates in metro areas in 2005, it gets worse for gunworld - 21 of the 25 metro areas with highest violent crime rates were in PRO GUN states, while the safest 25 metro areas split about 11 - 11 with 3 neutralish states.
Nine of MorganQuitno’s ten most dangerous states were PRO GUN states, & 22 of the most dangerous 25 states were progun states, in it’s latest 15th annual. Guncontrol MD was 7th, Calif 13, Illinois 21st.
When we look at accidental firearm deaths in children 16 & under, DC’s handgun ban & long-gun policy have been effective. From 99 thru 05 (6 yrs), only one child has been an accidental firearm fatality in DC. Altho it is generally unwise to contrast cities with states to obtain anything meaningful since cities usually have such higher population densities, it is interesting to note that the progun states of wyoming & north dakota with approx the same number of 1-16 yr olds as DC, both states had 4 accidental child deaths those 6 years compared to DC’s one, & progun mississippi had 41 accidental child deaths (albeit 6x number of children as DC).
DC’s sister city Richmond in pro gun Virginia with shall issue concealed carry, Richmond in 2005 had a higher murder rate, 43, than DC’s 35. What happened to the guns galore safety net?

Comment by AJ Libby — April 15, 2008 @ 9:16 am
gib: if the Corollary is correct why did Madison’s original draft of [2A] put the right to keep and bear arms first before mentioning a well organized militia.

.. your dialectic does not dismantle rawle.

gib: .. Bellesiles .. I leave it to the rest of the readers to interpret who’s lacking in credibility. Particularly when Mr. Libby doesn’t remember he made his statement in Post 127 not Post 96.

.. phfft; absurd to use my confusing my rawles’ post with my bellesiles post as evidence of a lack of credibility within my argument itself.
.. gibson does a sloppy tapdance in both instances, that is all.

Comment by AJ Libby — April 15, 2008 @ 9:30 am
It will be intresting to see how this plays out.
My sociology class took a pole of what outher stunents had to say on this matter. Overwelmingly they all think it is an indaviguals right to oun firearms. Tri-c comm. collage Cleveland Ohio

Comment by ROBERT W. CORWIN — April 15, 2008 @ 2:14 pm
I understand what you are saying. Having had a coworker commit suicide without a firearm hardly makes me supportive of the argument that banning handguns prevents suicide.

But these statements get away from what we should be now discussing which is what was said in the oral arguments. Instead of discussing the words of Kennedy, Ginsburg, Breyer or Roberts we are still talking about the writing of William Rawle who is never mentioned in any of the petitioners briefs or in the oral arguments. Simply put, if Libby is so right that Rawle is the first and last word on this matter why is it none of the legal scholars for the gun control side even mentioned it.

In truth we should have long ago been remarking about such things as Ginsburgs note about the men who had exceeded militia age under the 1792 Act. She obviously appreciates that not one says these men were disarmed. And if these men were not disarmed how could gun ownership only be in regard to military service: for the men were no longer required to serve.

Comment by James N. Gibson — April 16, 2008 @ 1:19 am
gibson: .. if these men [>45 in 1792] were not disarmed how could gun ownership only be in regard to military service: for the men were no longer required to serve.

.. more screwy dialectic reasoning from gibson, poorly worded as well;
.. disarming individuals fell outside the scope of 2ndA; .. 2ndA forbade congress from disarming state’s militias & consequently (by corollary) granted rkba to state’s militiamen older than 17 & younger than 45, but 2A concurrently did not disallow other americans from owning firearms.

.. Men reaching 45 who outlived their militia requirement were NOT REQUIRED TO SERVE IN MILITIA ANY LONGER, that is all. Since they were never granted any individual rkba by 2ndA to begin with, there was no stipulation that militia retirees be disarmed, that was never the intent of 2ndA, either explicit nor implicit.

Comment by AJ Libby — April 16, 2008 @ 1:27 pm
Libby, you accuse me of dialectic reasoning and then produce this response (150).

From your own post of 96, .. “Wm Rawle CLEARLY calls the individual clause a COROLLARY to the militia clause;_.. ie - a CONSEQUENT of the need for a well reg’d militia is that the right of people to keep & bear arms (rkba) shall not be infringed. OR, since a well reg’d militia is necessary, we INFER that people have rkba”. After saying (or inferring) this necessary militia relationship, you now say the 2ndA concurrently did not disallow other americans from owning guns. To what end were these other Americans allowed to Keep Arms if they were not in a militia in which they would Bear Arms.

Or in your Post 100: “there MUST be a connection regarding the people with the militia for rkba to be a corollary to the militia clause.” But since the men are now too old for service they have lost that connection and thus have no reason or purpose to “Keep Arms”. So, by the corollary, they must have been disarmed to maintain the requirement that there be a connection between RKBA and militia service. Yet the men were not: according to you they simply were no longer required to serve in the militia.

Or in your post of 115- ”if something hinges upon another law or rule, it is dependent upon that law or rule as a basis, so if you concede that Rawle is correct, there MUST be a dependent link to the militia for rkba to hold fast”. Since you hold that Rawle is correct there has to be a linkage between the militia for RKBA to hold fast. Yet you then say there were Americans not in the militia that owned guns?

I particularly liked your statement that the militiamen were not given any individual RKBA by the 2ndA. Yet by your own words, on retirement, the militiamen get that individual right simply because they were not disarmed as they left the collective entity that was the militia.

Comment by James N. Gibson — April 17, 2008 @ 1:40 am
gibson: your Post 100: “there MUST be a connection regarding the people with the militia for rkba to be a corollary to the militia clause.” But since the men are now too old for service they have lost that connection and thus have no reason or purpose to “Keep Arms”.

.. retired militiamen may have lost connection with the active militia, but the ‘people’ as used in 2A & by rawle have NOT lost connection with the militia; rawle can’t compensate for something which wasn’t intended to be accounted for in 2ndA to begin with - definition of what a militia was (including getting senile, mentally infirmed, violent, etc).
.. If a 25 yr old white male ‘people’ became mentally incompetent in 1792, would you argue he could still bear loaded arms in militia?, or even safely defend himself with rkba & a firearm? He’s still a people, but not really a militiaman entitled to bear firearms to defend the state.
.. 2 year olds similarly had no rkba granted them or revoked them by 2ndA. (tho surely many americans >45 fought in militia on a voluntary basis).

gibson:.. [retired militiamen] must have been disarmed to maintain the requirement that there be a connection between RKBA and militia service. Yet the men were not: according to you they simply were no longer required to serve in the militia.

.. gong, one outgrew the militia, not the ABILITY to own a firearm; & one outgrew the obligation to belong to a militia which could not be infringed upon by congress, that is all… a restraint on congress forbidding disarming the collective militia, which by consequent/corollary, granted rkba to americans to serve in their WR militia.

.. A band of 1792 americans >45 with legal muskets but not attached to a well reg’d state’s militia, standing armed alongside a road, could indeed be infringed upon by the state (see also presser).
.. there was no congressional involvement in disarming non militia members from owning firearms, there was never the fear of that, states would handle it. The fear was that of a majority of congress overpowering minority states if a group of states bonded unfairly & assumed majority control & tried to disarm minority states of firearms, 2ndA prevented that.

.. you use tortured logic fallacy to make an argument which was never there to begin with.

Comment by AJ Libby — April 17, 2008 @ 3:04 pm
Actually I am enjoying your tortured logic trying to maintain that RKBA is a collective right while recognizing the problem your logic creates when the issue of retirees, or disabled veterans, is taken into account.

The truth is, under the logic you have put forward, the government would have had no choice, or impediment, to the disarming of the retired or disabled militiamen. Regardless of the fact no disarmament power is written in the 2nd, by your logic the protection only applies to the men “IN” the militia. Congress has the authority to regulate the militia under the terms of Article 1 Sect 8 Clause 16 (and did so with the 1792 militia act). Under this act, a disarmament provision towards men over 45 could have been imposed just as there was a requirement that all men acquire an arm with 6 months of turning 18.

The 2nd did not override the Congressional authority to define or regulate the militia. As you view it, the 2nd simply insured that Congress couldn’t disarm the militia. Thus, a regulation disarming the retired or disabled militiamen would not be prevented by the 2nd, under your logic, since disarming these men would not constitute disarming the militia. As you have noted, the men in question were no longer required to serve and thus no longer were even maintained on the local militia roles.

In addition, under your earlier statements that gun ownership was limited, how could the government allow the arms these men owned to leave service? You have, unfortunately for you, stated that guns were rare in those days. You have even questioned the production rate for arms at Springfield Armory. If these points were true, then why would the government allow these men to leave service with a weapon that was needed by the remaining militiamen? You like, as do most gun controlists, to note the fact the Militia returns do not show enough arms to equip the whole militia. So why would the government allow these men to leave with these “rare” arms.

Thus, by your facts, the government was neither prevented from disarming the retired militiamen and had a valid defense reason to acquire these men’s arms to equip the remaining militia. And again, by your corollary argument, such a disarmament would be in-line with the needed linkage of RKBA to militia service.

Yet the old and disabled men were not disarmed, though they were relieved of their militia duties as you put it. In the end the retirees- and their arms- were dropped from the militia returns, which in turn undermines your claim the militia return is a complete gun census. These men then became people who owned arms while not being connected to the militia (which sounds like the question the Supreme Court asked in Heller).

Comment by James N. Gibson — April 18, 2008 @ 2:55 am
gibson: You have even questioned the production rate for arms at Springfield Armory.

.. have I really? questioned firearm production rate at Springfield Armory? Nah, it’s only you misquoting me again:

1) what gib said, post 127: .. 1795 to 1811 Springfield Armory produced 74,400 muskets. Spread over the whole 16 years that’s about 4,600 a year..
2) what I then said: .. SF production of course was far weaker than that average the first 5 years, & the first year what’d it make, 1,000?

.. so what I actually contended was that for the first 5 years SprFld production was just ‘weaker’ than gibson’s 4,600 avg production rate, & bellesiles table8 shows the avg Sprfld production rate from 1795-1800 at 2,102 avg per year (prove him wrong, post a link, but I trust him).
.. so actually I was right to correct gibson, since readers might think 23,000 firearms produced at SF armory from 1795-1800 rather than the actual 10,500. That was my point - that was not ‘questioning’ SF production, it was clarifying what you wrote.

gibson: .. why would the govt allow these men to leave service with a weapon that was needed by the remaining militiamen?

.. if the firearm was provided by the militiaman then it was his, but if it was provided by a national armory or otherwise paid for by fed or state, I presume it could be retained by the state, or under favorable circumstances, given to the militia member for honorable service rendered.
.. 2ndA was not intended to deprive anyone of firearms.

Comment by AJ Libby — April 18, 2008 @ 4:23 pm
You asked, I supply.
http://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=017/llsp017.db&recNum=543

Mr. B’s table should match this one exactly since this is the one that he should have quoted from. It is the official record according to the Library of Congress.

As for your number how was it calculated. Check the table- if you are counting only the first five years of production, 1795 to end of year 1799, the total number is 7,550. If your run through the end of year 1800 the total number made is 12,419. If you choose to delete the 1795 year, since it was only a half year of production, and only count the first five full years of production it only brings the number down to 12,174. After the year 1798 production at Springfield was never below 2,000 a year (regularly over 3,000) and the year the low production occurred (1806) corresponds with a major facilities upgrade. The first year after the upgrade production exceeded 5,500 a year and climbed to 12,000 the year before the war of 1812 began. Production was curtailed during the war and for a few years after as work was split between building new guns and repairing ones damaged inservice.

Comment by James N. Gibson — April 18, 2008 @ 10:39 pm
Since the last post I found where you made a small error. The period 1795-1800 Mr. B has on his table 8 is a six year period not a five. This is why your number is 2,000 muskets lower then mine.

After that, remember I was stating the average yearly production from 1795 to 1811 at 4,600. According to Mr. Bs table, which you believe in, for the ten year period from 1801 to 1810 the yearly production rate is 5,099, which is higher then the number I computed for the longer period which you disputed. As for the rate from 1811 to 1820, Mr B puts that at 10,473 per year.

Do the math: from 1795-1800 = 12,600 muskets
from 1801-1810 = 50,990 muskets
one year production 1811= 10,473 muskets
total= 74,063 (from Mr. Bs own table data)

I stated originally 74,400 that was based on a direct addition of every year of production from the Federal table in the Library of Congress. Both numbers, when divided by the number of years passed, produce an average yearly production rate of 4,300 (my error was using 16 years when in truth its 17).

In the end both your source and mine are roughly the same and my computation for number of arms produced from 1795 to 1811 is in cinc with your source. But where I am pointing out by 1811 we could produce 12,000 muskets a year at one facility, you want everyone to note that the first five years of production was weak. What you didn’t know until now was the first year was only 245 (start-up), growing in rapid stages until in the fifth year Springfield reached a production rate of 4,500 arms per year (1799) which is twice the yearly rate you quoted from Mr. Bs table.

By the way, from Mr. Bs table I can also compute that by 1811 Harpers Ferry had produced 35,218 arms to add to the 74,000 we have already computed from Springfield. By going directly to Mr. Bs source (see his footnote) I count just over 50,000 arms made at Harpers over that same time frame. That makes from 110,000 to 125,000 firearms made by 1811 from just the two Federal arsenals.

Comment by James N. Gibson — April 19, 2008 @ 5:32 pm

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