Just what is this 'Right to bear arms?' - Page 3

Just what is this 'Right to bear arms?'

This is a discussion on Just what is this 'Right to bear arms?' within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; The right to keep and bear arms (often referred as the right to bear arms or to have arms) is the assertion that people have ...

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Thread: Just what is this 'Right to bear arms?'

  1. #31
    Member Array rdpG19's Avatar
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    The right to keep and bear arms (often referred as the right to bear arms or to have arms) is the assertion that people have a personal right to firearms for individual use, or a collective right to bear arms in a militia, or both.

    The phrase "right of the people to keep and bear Arms" was first used in the text of the United States Bill of Rights (coming into law as the Second Amendment to the Constitution of the United States). Beyond the United States of America, the general concept of a right to bear arms varies widely by country, state or jurisdiction.
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  2. #32
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    I think the 2nd Amendment was a backup insurance policy that gave citizens the ability to uphold the 1st Amendment if necessary.
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  3. #33
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    Thanks for the thought provoking question!

    The language they used is probably the byproduct of consensus. Half of the Amendment requires interpretation and half of it does not. I think the answers lie more in what is NOT said than in what is.

    "A well regulated Militia being necessary to the security of a free state..." Well, that sounds like they wanted the States to be able to defend themselves against a central government. It also seems to try and protect State government by not defining what a "A well regulated Militia" is or is not. What is NOT said is something along the lines of "Hunting to provide food is necessary for a fed people..." or "A standing army being necessary to the security of a free nation...". The answer to what the first part means is, I believe, in historical context.

    In those days, there was some equality of force. If enough people got together, they had the means (arms) to effect the changes they thought were necessary (see: The Civil War). Before The Civil War, we were ALL the militia. That's how we gained our independence, by being 'ready at a minute's notice' to defend our families and property....scholars and blacksmiths and farm-hands alike.

    Herein lies 'the rub'. Starting with WW1, our federal military outstripped the average citizen as far as arms and technology go to be competitive in a world-wide arena. Take that to today and my 2 pistols and 1k rounds are no match for a SWAT team, let alone a squad of soldiers with air-support and armor. The bottom of that slippery-slope is a situation where whoever has "The Football" could nuke a whole city and then broadcast to every citizen in the Country, saying "Really? Y'all still want to revolt?" (See: Hiroshima and Nagasaki). The only revolt we're capable of now is an ideological one. We need more citizens to stand up for what they believe (or have beliefs at all...I know...thinking is hard. It's so much easier to let someone else do it for you). We need more Tienanmen Square and Occupy...but I digress... Needless to say, I think the first part of the 2nd Amendment is (somewhat) obsolete and shouldn't even factor into the debate. (See: the part about the census that values black men as 3/5 of a man and black women as nothing)

    What isn't, however, obsolete is the 2nd part. They couldn't have made it any simpler or easier to understand. "the right of the people to keep and bear arms shall not be infringed". Once again, the answer is more in what was NOT said.

    It does not say "The privilege..."

    It does not say "the right of the militia" or "the right of the state"

    It does not say "hunt with"

    And it does not say "may be granted conditionally"

    That said, I believe in the rule of law. I believe in adapting to changing times and circumstances. If it hadn't been for the Federal Government, many men and women would have been deprived of their right to life, liberty and the pursuit (not the attainment, kids, just the pursuit) of happiness. I think there is a place in "shall not be infringed" to find laws that keep the bearing of arms from infringing upon any of the other rights. I don't believe the mentally-ill and convicted felons should legally have guns. I do believe that safety requirements are a good idea (See: Seat belts). I do believe that some sort of proficiency should be shown.

    At the end of the day, I would give up my firearms only if every firearm vanished from the face of the Earth....until then...anyone have a nice 3913 for cheap?
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    I think I should be able to claim my guns as dependents on my taxes. I have to clothe them, feed them, clean them when they get dirty, keep them safe from bad people...

  4. #34
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    Sorry guys, but you all--especially K-- misconstrue the "well regulated militia" part. You need to go back and read about the Shay Rebellion and how MA had to throw together a private militia to put that rebellion down to understand that section.

    It simply means that the states have a right to have a well regulated militia; which they do.
    Usually, its called the National Guard these days.

    The separate right of the people to keep and bear arms should be standing alone. But to what purpose?

    The obvious answer is to the purpose of sport and personal self-defense (and back then hunting for food).

    Any notion that any of this has a thing to do with standing up to a tyrannical US Government is silly on multiple fronts. 1) As pointed out it is highly impractical and wouldn't work today; 2) We are still electing everyone. 3) Our courts are still functioning everyday.

    The Shay's in pre-constitutional America thought they were standing up to a tyrannical MA government, and they lost. They were thought a threat to the Constitution of 1789 too. That is why we have the clause in 2A giving the states the right to maintain a well regulated militia.

    Keep the rebellion stuff in perspective, because every time that is mentioned the rest of us who really are patriots who believe in the ballot and the legislative and judicial processes (however flawed) end up looking like we are in the company of fools. Most folks do not want to hear that our right to keep arms is for the purpose of revolution and revolt. That is a very off-putting and scary notion, as it should be. And it is misinterpretation based on historical facts both under the Articles of Confederation and The Constitution. As I've mentioned before, under the Constitution Uncle quickly moved to put down the Whiskey rebellion. There isn't a drop of historical evidence that the founders approved of rebellion against what they had created.

    From Wik regarding Shays--- "The rebellion started on August 21, 1786, over financial difficulties and by January 1787, over one thousand Shaysites had been arrested. A militia that had been raised as a private army defeated an attack on the federal Springfield Armory by the main Shaysite force on February 3, 1787, and five rebels were killed in the action."

    Note, MA did not have the militia needed to put the rebellion down. That is the origin of the antecedent clause in 2A. It was necessary to authorize the states to maintain "well regulated militias." It has nothing to do with allowing for rebellion against the US or against a state, or protecting against tyranny. The framers were well aware of the what the Shayites did, and the carnage, and were not going to allow that to happen again.
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  5. #35
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    Quote Originally Posted by rljohns View Post
    To bear arms is to carry them with you anywhere you go. Shall not be infringed means they can not be limited. It's the only right in the constitution that has the word infringed. Lots of liberals (actually today's liberals are actually socialist) argue that they can set limits such as restrict arms from Post Offices. Even some conservatives will even sign on to limit them. Only libertarians sign up for shall not be infringed. At the time of the writing of the US Constitution they cansidered arms to be 'Military Grade' arms that in today's standards would include fully auto and many more. So if hold the literal standard we would all be flying F-16s (assuming we could afford one) and have batteries of SAMs. I'm not arguing for or against F-16s for everyone I just interpolating to today's standards.
    Of course your interpretation has been totally rejected by the courts and the legislatures; over and over and over again. So repeating it often, doesn't make it true.
    If the Union is once severed, the line of separation will grow wider and wider, and the controversies which are now debated and settled in the halls of legislation will then be tried in fields of battle and determined by the sword.
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  6. #36
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    Quote Originally Posted by DaveWorkman View Post
    We talk about it, we do it.
    But what does it really mean?

    Based on feedback here and elsewhere, I'll probably do a follow-up in a few days. So gather your thoughts, keep them pithy and on-topic.



    Just what is this ‘right to bear arms’ and what does it cover?

    Washington State’s own Tri-City Herald today published an editorial that speaks about the Second Amendment and how many liberals cling to the notion that it is the illegitimate son in the Bill of Rights...

    Just what is this
    There are libraries that offer treatises on the meaning of language in the amendment. Probably the answer that is the most relevant is the Supreme Court Helller opinion from 2 or 3 years ago, so you could look at the Opinion for the Majority (Scalia's) and see if he dealt specifically with that phrase. Very likely he did. The overall decision was in favor of a petitioner in a case where a Washington DC law did not allow a functioning gun to be in the home ( I believe it had to be field stripped and was a rifle - but can't state that for sure).

    The Court's decision was that there was such a thing as Basic Right in the 2nd Amendment that allowed a rifle in the home - or perhaps a handgun - again, bit foggy on that part. At the same time, it was specifically stated that the ruling did not outlaw other restrictions on guns.

  7. #37
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    To me, 2A protects my ability to protect myself and my family and maintain separation from government dependency. FREEDOM

    Scope of protection, Should that be a robber or attacker while at home or out and about during the course of our daily lives, all the way up to banding together with my neighbors to fend off a larger threat. I don't believe the 2A was meant to be the ultimate failsafe against a tyrannical government. As others have said, our modern military would steam roll any band of citizens. Whether the US Armed Forces would accept that order to disarm and take control of this country is for another discussion and strays off topic.

    As for the arms protected by the 2A, I believe the description of a Militia member and his requirements of supplies to be kept readily available and supplied by each member from his own means. The list of weapons and supplies was based off of the Infantry soldier of the time. Modern musket, spare flints, a specified amount of powder and lead. It made no mention of artillery of other larger weapons. IMO, this should automatically protect our ability to own AR / AK style weapons with high capacity magazines, and handguns as sidearms. But stop short of Rockets, bombs, armed aircraft and armored vehicles and tanks.

    Individual Independence, Rifles (other than AR) and shotguns are used less frequently than by the "typical" infantry soldier, but their cross over to hunting and "providing" for ones self and family would include them under the blanket of 2A protection.

    Just my $.02

    Mike
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  8. #38
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    I do believe that the 2nd was an attempt to ensure that a reset switch on the system remained in the hands of the people. I don't believe that they intended for home defense or sport. Nor do I believe they expected the govt to be absolute and never challenged or replaced. In their time, the people were the army, times and technology in the last 100 years changed that.

  9. #39
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    Hop - you might want to do a root cause analysts on the rebellion led by Daniel Shay. I will be back with more this evening.
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  10. #40
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    Quote Originally Posted by 4my son View Post
    To me, 2A protects my ability to protect myself and my family and maintain separation from government dependency. FREEDOM
    Mike
    Where do you get the idea that you are not part of the government and need to be separate or independent from it? You are part of WE THE PEOPLE, whether you like it or not, or whether some of the rest of us like your participation or not--till you commit a crime of course.

    You are part of the government when you are summoned for jury duty. When you are subjected to conscription or register with Selective Service; still a requirement, btw.

    You are partaking of government when you vote? You support the government with every tax that you pay? You are not an independent actor on this continental stage. You are a one tiny part of a large nation, subject to the rules of society. Independent of it, no way.
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    If the Union is once severed, the line of separation will grow wider and wider, and the controversies which are now debated and settled in the halls of legislation will then be tried in fields of battle and determined by the sword.
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  11. #41
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    Quote Originally Posted by ksholder View Post
    Hop - you might want to do a root cause analysts on the rebellion led by Daniel Shay. I will be back with more this evening.
    I look forward to your reply. Would also enjoy discussing by pm so as to not bother others with our peculiar obsession with these things.

    At the moment I don't see what the cause of the Shay rebellion has to do with anything, but am looking forward to your response.
    If the Union is once severed, the line of separation will grow wider and wider, and the controversies which are now debated and settled in the halls of legislation will then be tried in fields of battle and determined by the sword.
    Andrew Jackson

  12. #42
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    Quote Originally Posted by ksholder View Post
    shall not be infringed - The 2A is a limitation on government, not the people. Shall not be infringed means that the government cannot put any infringements on the rights enumerated in the 2A. This is the part that the Feds violate more than the rest. Your right to bear arms on almost any federal property (except parks) has been eliminated, removed - infringed. Prohibitions for carry at federal courts, office buildings, schools, etc. - all are infringements on the 2A.

    So, in a nutshell, the 2A acknowledges the natural right of citizens and legal aliens to buy, store, maintain, transport, wear and deploy arms in defense of self and/or country. This right comes from our Creator and is simply affirmed, not created by the Constitution. The government, federal, state or local, cannot make laws that keep citizens or legal aliens from exercising these rights.
    This is the important part to me. Nowhere in the Second Amendment does it proclaim a new right. It only says the Government cannot infringe on the right. This must lead one to assume the right predated the Constitution and the Bill of Rights.
    The Amendment does not give the people anything. It is just a reminder to the Federal Government not to touch what the people already possess.

    Michael
    Last edited by mlr1m; November 29th, 2011 at 02:15 PM. Reason: I made an oopsie

  13. #43
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    Our founding fathers were using deadly force to over throw a tyrannical government. They could have never foreseen the technological advances in military arms and weaponry. Today's armed citizen's facing a repressive, determined and controlled military would stand no chance. The trouble is, the Holocost occurred because too much power was invested in too few people and the victims were unarmed. Would they have had a chance against Hitlers legion's if they had access to guns of the period? Probably not.
    The only hope we have of realistically controlling our government is through the ballot box. It is voter apathy, lack of knowledge, unrestrained wealth with an agenda and a run-a-way liberal media that we have to fear. Armed rebellion is not an option unless the government loses the support of the military.
    Personal defense is another matter entirely. Drugs, immigration, the economy, gangs and many other factors have reduced the ability of law enforcement to make us feel safe at all times and in every place. The reality of this should be reason enough for law abiding citizens to arm themselves. It is neither politically correct nor expedient for our law makers to admit the fact that criminals do not obey laws and that law abiding citizens must have the legal right to defend themselves so the advantage is weighted on the side of the bad-guys.
    The same technology that turned the muzzle loading rifle into a weapon of mass destruction could very well be the answer. A non-lethal defense mechanism might do for the future what Sam Colt did for the defenseless since modern-day anti's are convinced that national, unrestricted concealed carry will bring us back to the thrilling days of yesteryear. If there was an easy answer, even a politician would have thought of it.

  14. #44
    Ex Member Array walleye's Avatar
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    Here Is the SUPREME COURT'S opinion and Scalia's words on the phrase: everything you ever wanted to know about "keep and bear arms"

    (It is LONG: if you want to skip all the research and other opinion of the phrase and cut to the quick, scroll to the last paragraph.)

    ----------------------------------------------------------------------------------------------------------------------------------------
    SUPREME COURT OF THE UNITED STATES

    DISTRICT OF COLUMBIA, et al., PETITIONERS v.
    DICK ANTHONY HELLER
    on writ of certiorari to the united states court ofappeals for the district of columbia circuit
    [June 26, 2008]

    Justice Scalia delivered the opinion of the Court. ...........

    -----------
    a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment ’s Assembly-and-Petition Clause and in the Fourth Amendment ’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.5
    Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.6
    What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990) :
    “ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution… . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment , and by the First and Second Amendment s, and to whom rights and powers are reserved in the Ninth and Tenth Amendment s, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”
    This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”
    We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.
    b. “Keep and bear Arms.” We move now from the holder of the right—“the people”—to the substance of the right: “to keep and bear Arms.”
    Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).
    The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6, p. 104, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke, 42Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language37 (1794) (emphasis added).
    Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
    We turn to the phrases “keep arms” and “bear arms.” Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” Johnson 1095. Webster defined it as “[t]o hold; to retain in one’s power or possession.” No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.”
    The phrase “keep arms” was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to “keep Arms” as an individual right unconnected with militia service. William Blackstone, for example, wrote that Catholics convicted of not attending service in the Church of England suffered certain penalties, one of which was that they were not permitted to “keep arms in their houses.” 4 Commentaries on the Laws of England 55 (1769) (hereinafter Blackstone); see also 1 W. & M., c. 15, §4, in 3 Eng. Stat. at Large 422 (1689) (“[N]o Papist … shall or may have or keep in his House … any Arms … ”); 1 Hawkins, Treatise on the Pleas of the Crown 26 (1771) (similar). Petitioners point to militia laws of the founding period that required militia members to “keep” arms in connection with militia service, and they conclude from this that the phrase “keep Arms” has a militia-related connotation. See Brief for Petitioners 16–17 (citing laws of Delaware, New Jersey, and Virginia). This is rather like saying that, since there are many statutes that authorize aggrieved employees to “file complaints” with federal agencies, the phrase “file complaints” has an employment-related connotation. “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.7
    At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998) , in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.
    From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment : Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.” 8 It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit. Justice James Wilson interpreted the Pennsylvania Constitution’s arms-bearing right, for example, as a recognition of the natural right of defense “of one’s person or house”—what he called the law of “self preservation.” 2 Collected Works of James Wilson 1142, and n. x (K. Hall & M. Hall eds. 2007) (citing Pa. Const., Art. IX, §21 (1790)); see also T. Walker, Introduction to American Law 198 (1837) (“Thus the right of self-defence [is] guaranteed by the [Ohio] constitution”); see also id., at 157 (equating Second Amendment with that provision of the Ohio Constitution). That was also the interpretation of those state constitutional provisions adopted by pre-Civil War state courts.9 These provisions demonstrate—again, in the most analogous linguistic context—that “bear arms” was not limited to the carrying of arms in a militia.
    The phrase “bear Arms” also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: “to serve as a soldier, do military service, fight” or “to wage war.” See Linguists’ Brief 18; post, at 11 (Stevens, J., dissenting). But it unequivocally bore that idiomatic meaning only when followed by the preposition “against,” which was in turn followed by the target of the hostilities. See 2 Oxford 21. (That is how, for example, our Declaration of Independence ¶28, used the phrase: “He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country … .”) Every example given by petitioners’ amici for the idiomatic meaning of “bear arms” from the founding period either includes the preposition “against” or is not clearly idiomatic. See Linguists’ Brief 18–23. Without the preposition, “bear arms” normally meant (as it continues to mean today) what Justice Ginsburg’s opinion in Muscarello said.
    In any event, the meaning of “bear arms” that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.
    Petitioners justify their limitation of “bear arms” to the military context by pointing out the unremarkable fact that it was often used in that context—the same mistake they made with respect to “keep arms.” It is especially unremarkable that the phrase was often used in a military context in the federal legal sources (such as records of congressional debate) that have been the focus of petitioners’ inquiry. Those sources would have had little occasion to use it except in discussions about the standing army and the militia. And the phrases used primarily in those military discussions include not only “bear arms” but also “carry arms,” “possess arms,” and “have arms”—though no one thinks that those other phrases also had special military meanings. See Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83 Tex. L. Rev. 237, 261 (2004). The common references to those “fit to bear arms” in congressional discussions about the militia are matched by use of the same phrase in the few nonmilitary federal contexts where the concept would be relevant. See, e.g., 30 Journals of Continental Congress 349–351 (J. Fitzpatrick ed. 1934). Other legal sources frequently used “bear arms” in nonmilitary contexts.10 Cunningham’s legal dictionary, cited above, gave as an example of its usage a sentence unrelated to military affairs (“Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms”). And if one looks beyond legal sources, “bear arms” was frequently used in nonmilitary contexts. See Cramer & Olson, What Did “Bear Arms” Mean in the Second Amendment ?, 6 Georgetown J. L. & Pub. Pol’y (forthcoming Sept. 2008), online at What Did "Bear Arms" Mean in the Second Amendment? by Clayton Cramer, Joseph Olson :: SSRN (as visited June 24, 2008, and available in Clerk of Court’s case file) (identifying numerous nonmilitary uses of “bear arms” from the founding period).
    Justice Stevens points to a study by amici supposedly showing that the phrase “bear arms” was most frequently used in the military context. See post, at 12–13, n. 9; Linguists’ Brief 24. Of course, as we have said, the fact that the phrase was commonly used in a particular context does not show that it is limited to that context, and, in any event, we have given many sources where the phrase was used in nonmilitary contexts. Moreover, the study’s collection appears to include (who knows how many times) the idiomatic phrase “bear arms against,” which is irrelevant. The amici also dismiss examples such as “ ‘bear arms … for the purpose of killing game’ ” because those uses are “expressly qualified.” Linguists’ Brief 24. (Justice Stevens uses the same excuse for dismissing the state constitutional provisions analogous to the Second Amendment that identify private-use purposes for which the individual right can be asserted. See post, at 12.) That analysis is faulty. A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter. Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.11
    Justice Stevens places great weight on James Madison’s inclusion of a conscientious-objector clause in his original draft of the Second Amendment : “but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” Creating the Bill of Rights 12 (H. Veit, K. Bowling, & C. Bickford eds. 1991) (hereinafter Veit). He argues that this clause establishes that the drafters of the Second Amendment intended “bear Arms” to refer only to military service. See post, at 26. It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process.12 In any case, what Justice Stevens would conclude from the deleted provision does not follow. It was not meant to exempt from military service those who objected to going to war but had no scruples about personal gunfights. Quakers opposed the use of arms not just for militia service, but for any violent purpose whatsoever—so much so that Quaker frontiersmen were forbidden to use arms to defend their families, even though “[i]n such circumstances the temptation to seize a hunting rifle or knife in self-defense … must sometimes have been almost overwhelming.” P. Brock, Pacifism in the United States 359 (1968); see M. Hirst, The Quakers in Peace and War 336–339 (1923); 3 T. Clarkson, Portraiture of Quakerism 103–104 (3d ed. 1807). The Pennsylvania Militia Act of 1757 exempted from service those “scrupling the use of arms”—a phrase that no one contends had an idiomatic meaning. See 5 Stat. at Large of Pa. 613 (J. Mitchell & H. Flanders eds. 1898) (emphasis added). Thus, the most natural interpretation of Madison’s deleted text is that those opposed to carrying weapons for potential violent confrontation would not be “compelled to render military service,” in which such carrying would be required.13
    Finally, Justice Stevens suggests that “keep and bear Arms” was some sort of term of art, presumably akin to “hue and cry” or “cease and desist.” (This suggestion usefully evades the problem that there is no evidence whatsoever to support a military reading of “keep arms.”) Justice Stevens believes that the unitary meaning of “keep and bear Arms” is established by the Second Amendment ’s calling it a “right” (singular) rather than “rights” (plural). See post, at 16. There is nothing to this. State constitutions of the founding period routinely grouped multiple (related) guarantees under a singular “right,” and the First Amendment protects the “right [singular] of the people peaceably to assemble, and to petition the Government for a redress of grievances.” See, e.g., Pa. Declaration of Rights §§IX, XII, XVI, in 5 Thorpe 3083–3084; Ohio Const., Arts. VIII, §§11, 19 (1802), in id., at 2910–2911.14 And even if “keep and bear Arms” were a unitary phrase, we find no evidence that it bore a military meaning. Although the phrase was not at all common (which would be unusual for a term of art), we have found instances of its use with a clearly nonmilitary connotation. In a 1780 debate in the House of Lords, for example, Lord Richmond described an order to disarm private citizens (not militia members) as “a violation of the constitutional right of Protestant subjects to keep and bear arms for their own defense.” 49 The London Magazine or Gentleman’s Monthly Intelligencer 467 (1780). In response, another member of Parliament referred to “the right of bearing arms for personal defence,” making clear that no special military meaning for “keep and bear arms” was intended in the discussion. Id., at 467–468.15
    c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment . We look to this because it has always been widely understood that the Second Amendment , like the First and Fourth Amendment s, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876) , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .”16
    Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 31–53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103–106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” 1 W. & M., c. 2, §7, in 3 Eng. Stat. at Large 441 (1689). This right has long been understood to be the predecessor to our Second Amendment . See E. Dumbauld, The Bill of Rights and What It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle). It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament. See Schwoerer, To Hold and Bear Arms: The English Perspective, in Bogus 207, 218; but see 3 J. Story, Commentaries on the Constitution of the United States §1858 (1833) (hereinafter Story) (contending that the “right to bear arms” is a “limitatio[n] upon the power of parliament” as well). But it was secured to them as individuals, according to “libertarian political principles,” not as members of a fighting force. Schwoerer, Declaration of Rights, at 283; see also id., at 78; G. Jellinek, The Declaration of the Rights of Man and of Citizens 49, and n. 7 (1901) (reprinted 1979).
    By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999) , cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.
    And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1968). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145–146, n. 42 (1803) (hereinafter Tucker’s Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833).

    There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment ’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause. ..........

  15. #45
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    Quote Originally Posted by Hopyard View Post
    Where do you get the idea that you are not part of the government and need to be separate or independent from it? You are part of WE THE PEOPLE, whether you like it or not, or whether some of the rest of us like your participation or not--till you commit a crime of course.
    I never said I was not part of the government, I said to remain non dependent on the government. To keep the government from taking all you have or all you are, you must keep your Independence and freedom as a citizen, provide for yourself. Don't come looking for the government to fix everything. If we depend on the government to provide for us, then they have the control. We the People are only free if we keep the spirit of Freedom and Independence alive.

    I have served on a jury, and I signed up for Selective Service when I turned 18. I vote all the time, my main man there to the left hasn't missed an election since he was born. I agree that the government would not exist without us, but we can not let the government become our masters. It's supposed to be our assistant.
    "fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen." [Warren v. District of Columbia,(D.C. Ct. of Ap., 1981)]
    If I have to explain it, you wouldn't understand

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