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Quoted from prior posts of mine.
The militia act of 1792 http://www.constitution.org/mil/mil_act_1792.htm required some militiamen to provide themselves with not one, but a pair of pistols.
So much for the "no handgun" civic right argument.
See Section IV.
:wink:
Section I gives six months to those enrolled (between 18 and 45) to obtain a "musket" or "good rifle." I wonder how common rifled barrels were in 1792?
What did constitutional commentators closer to the ratification of the Second Amendment have to say about it? Read, and pay attention to whether there is a "personal use" element:
Saint George Tucker (1752-1828). The following information is borrowed from guncite.com.
1803 - Tucker published Blackstone's Commentaries on the Laws of England.
Blackstone had written a list of rights, among which was the:
"fifth and last auxiliary right of the subject ... that of having arms ... suitable to their condition and degree, and such as are allowed by law."
Tucker in a footnote added:
"The right of the people to keep and bear arms shall not be infringed." He cited the second amendment, noting that it is "without any qualification as to their condition or degree, as is the case in the British government." He added: "Whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England."
Civic right? The forests and game laws? Personal use in mind?
Continuing on about the Second Amendment, Tucker wrote:
"This may be considered as the true palladium of liberty .... The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorize the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty."
More Tucker:
In an appendix he went on to praise our separation of powers, which would allow the courts to stop a legislative act that had the effect of infringing a right, and he cites as an example the game laws in England that seem unimportant but have been converted into a means of disarming the people.
" . . . nor will the constitution permit any prohibition of arms to the people."
"If, for example, a law be passed by congress, prohibiting the free exercise of religion, according to the dictates, or persuasions of a man's own conscience or abridging the freedom of speech, or of the press; or the right of the people to assemble peaceably, or to keep and bear arms; it would, in any of these cases, be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused from any penalty which might be annexed to the breach of such unconstitutional act."
William Rawles made similar observations as to the laws that would disarm people based on usage, added state legislatures to the restraint imposed by the Second Amendment, and observed, "The prohibition is general." His entire quote is available over at guncite.
Thomas Cooley is a little more removed from the Founders, but he had an interesting observation nonetheless. In summary, he argues that the right protected by the Second Amendment cannot be limited to the militia or militia duties, because the law may limit who is the militia, and therefore defeat the right altogether. Accordingly, it must be a right of the people generally, who can privately use their arms and so be familiar with them.
" . . . But the law may make provision for the enrollment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision, undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose . . ."
More is contained here: http://www.guncite.com/gc2ndcom.html
To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws. ---John Adams, A Defence of the Constitutions of the United States 475 (1787-1788)
THIS ONE was misquoted intentionally by the Ninth Circuit to remove the right of self defense language in the Silveira Lockyer case.
Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American...[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.
---Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.
Hmmmm . . .
No state government collective/civic militia duty protecting-the-state-from-the-federal-government interpretation there! Mr. Coxe's article was widely published, but I am aware of not one criticism ever being published against it.
Imagine if such an article were published today. Do you think there might be people publishing negative critiques? Whom do you think had a better understanding of this amendment - people in the twentieth century or people in 1788?
[W]hereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.
---Richard Henry Lee, The Pennsylvania Gazette, Feb. 20, 1788.
Roger Sherman, during House consideration of a militia bill (1790):
the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack upon his liberty or property, by whomsoever made. The particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded.
14 Debates in the House of Representatives, ed. Linda Grand De Pauw. (Balt., Johns Hopkins Univ. Press, 1972), 92-3.
What? You mean the states and the citizens could be armed? And citizens could use their arms to protect their liberty and property? Who were these people - some kind of right wing gun nuts?
The militia act of 1792 http://www.constitution.org/mil/mil_act_1792.htm required some militiamen to provide themselves with not one, but a pair of pistols.
So much for the "no handgun" civic right argument.
See Section IV.
:wink:
Section I gives six months to those enrolled (between 18 and 45) to obtain a "musket" or "good rifle." I wonder how common rifled barrels were in 1792?
What did constitutional commentators closer to the ratification of the Second Amendment have to say about it? Read, and pay attention to whether there is a "personal use" element:
Saint George Tucker (1752-1828). The following information is borrowed from guncite.com.
1803 - Tucker published Blackstone's Commentaries on the Laws of England.
Blackstone had written a list of rights, among which was the:
"fifth and last auxiliary right of the subject ... that of having arms ... suitable to their condition and degree, and such as are allowed by law."
Tucker in a footnote added:
"The right of the people to keep and bear arms shall not be infringed." He cited the second amendment, noting that it is "without any qualification as to their condition or degree, as is the case in the British government." He added: "Whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England."
Civic right? The forests and game laws? Personal use in mind?
Continuing on about the Second Amendment, Tucker wrote:
"This may be considered as the true palladium of liberty .... The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorize the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty."
More Tucker:
In an appendix he went on to praise our separation of powers, which would allow the courts to stop a legislative act that had the effect of infringing a right, and he cites as an example the game laws in England that seem unimportant but have been converted into a means of disarming the people.
" . . . nor will the constitution permit any prohibition of arms to the people."
"If, for example, a law be passed by congress, prohibiting the free exercise of religion, according to the dictates, or persuasions of a man's own conscience or abridging the freedom of speech, or of the press; or the right of the people to assemble peaceably, or to keep and bear arms; it would, in any of these cases, be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused from any penalty which might be annexed to the breach of such unconstitutional act."
William Rawles made similar observations as to the laws that would disarm people based on usage, added state legislatures to the restraint imposed by the Second Amendment, and observed, "The prohibition is general." His entire quote is available over at guncite.
Thomas Cooley is a little more removed from the Founders, but he had an interesting observation nonetheless. In summary, he argues that the right protected by the Second Amendment cannot be limited to the militia or militia duties, because the law may limit who is the militia, and therefore defeat the right altogether. Accordingly, it must be a right of the people generally, who can privately use their arms and so be familiar with them.
" . . . But the law may make provision for the enrollment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision, undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose . . ."
More is contained here: http://www.guncite.com/gc2ndcom.html
To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws. ---John Adams, A Defence of the Constitutions of the United States 475 (1787-1788)
THIS ONE was misquoted intentionally by the Ninth Circuit to remove the right of self defense language in the Silveira Lockyer case.
Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American...[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.
---Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.
Hmmmm . . .
No state government collective/civic militia duty protecting-the-state-from-the-federal-government interpretation there! Mr. Coxe's article was widely published, but I am aware of not one criticism ever being published against it.
Imagine if such an article were published today. Do you think there might be people publishing negative critiques? Whom do you think had a better understanding of this amendment - people in the twentieth century or people in 1788?
[W]hereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.
---Richard Henry Lee, The Pennsylvania Gazette, Feb. 20, 1788.
Roger Sherman, during House consideration of a militia bill (1790):
the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack upon his liberty or property, by whomsoever made. The particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded.
14 Debates in the House of Representatives, ed. Linda Grand De Pauw. (Balt., Johns Hopkins Univ. Press, 1972), 92-3.
What? You mean the states and the citizens could be armed? And citizens could use their arms to protect their liberty and property? Who were these people - some kind of right wing gun nuts?
