2nd Amendment: Founder's Intent

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    Exclamation 2nd Amendment: Founder's Intent

    Our Second Amendment: The Founders’ Intent

    The Independent Institute ^ | December 6, 2007 | Stephen P. Halbrook

    Soon the U.S. Supreme Court will consider whether the District of Columbia’s bans on possession of handguns, even in the home, and on having long guns functional for self defense violate the Constitution. As the Court sees it in D.C. v. Heller, the issue is whether those bans “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 federal appeals court for D.C. held that it did.

    After ignoring the Amendment since its ambiguous U.S. v. Miller decision in 1939, the Court will decide whether the phrase “the right of the people” in the Second Amendment refers to the same “people” as in the First and Fourth Amendments, or only to government-selected militiamen. It will also consider whether a “right” in the Bill of Rights refers to a real liberty or is only rhetoric. Is the right to keep and bear arms on a par with the rights peaceably to assemble or against unreasonable search and seizure? Or is it void where prohibited by law?

    For America’s Founders, the answer was obvious. In 1768, when Redcoats landed to occupy the town, the Boston Gazette warned of British plans “more grievous” than anything before: “the Inhabitants of this Province are to be disarmed”; martial law would be declared; and patriots would be “seized and sent to Great-Britain.” Through the periods of the Boston Massacre and the Tea Party the screws were tightened, until finally British attempts to seize colonists’ arms at Lexington and Concord in 1775 led to the shot heard ‘round the world.

    Just after the American victory, General Gage, commander of the King’s troops, ordered the inhabitants of Boston to surrender their firearms, supposedly for temporary safekeeping. It is recorded that Gage confiscated “1,778 fire-arms [long guns], 634 pistols, 973 bayonets, and 38 blunderbusses.” The Continental Congress cited this act of perfidy in its Declaration of Causes of Taking Up Arms.

    After Independence was won, delegates from the states in 1787 framed our Constitution. Antifederalists protested that it included no declaration of rights and would allow deprivation of rights like free speech and keeping arms. James Madison responded in The Federalist that a declaration was unnecessary, in part because of “the advantage of being armed, which the Americans possess over the people of almost every other nation,” in contrast with the European monarchies, where “the governments are afraid to trust the people with arms.”

    A great compromise was reached: the Constitution would be ratified and then a bill of rights would be debated. When the first Congress met in 1789, Madison proposed what became the Bill of Rights. Federalist writer Tench Coxe explained the Second Amendment thus: “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed...in their right to keep and bear their private arms.”

    The Amendment reads: “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.” For almost two centuries, the understanding was that law-abiding individuals had a right to possess rifles, pistols, and shotguns. This would promote a militia of all able-bodied citizens, which, unlike a standing army, was seen as securing a free country.

    The agenda to pass firearms prohibitions led to the invention of the “collective rights” view by the 1960s. Under this view, the Amendment protects only the power of states to have militias. A variation asserts that it guarantees a right to bear arms in the militia, nothing more. These attempts to deconstruct ignore that “the people” means you and me, not the states, and that no “right” exists to do anything in a military force—a militiaman does what is commanded.

    In 1976, the District of Columbia banned pistols. It also required registered rifles and shotguns to be rendered non-functional when kept at home (but not at a business). D.C. residents were thereby rendered into second-class citizens—they had no Second Amendment rights and were not trusted to defend themselves in their own homes. The crime rate only continued to rise in what became the Murder Capital of the U.S.

    The validity of the D.C. ban is now before the Supreme Court. Besides arguing that no one has any rights under the Second Amendment, D.C. alternatively contends that it can ban handguns as long as it does not ban all rifles and shotguns. One can imagine what the Bostonians who surrendered all of their firearms to the Crown in 1775 would have thought of such an argument. Hopefully the Justices will be mindful of the Founders’ intent and will recognize that the Second Amendment is every bit a part of the Bill of Rights as is the First.

    Stephen P. Halbrook, Ph.D., an attorney in Fairfax, Virginia and a research fellow at The Independent Institute in Oakland, CA, is author of That Every Man Be Armed (Independent Institute), and Freedmen, the Fourteenth Amendment, and the Right to Bear Arms (Praeger).
    Former Army Infantry Captain; 25 yrs as an NRA Certified Instructor; Avid practitioner of the martial art: KLIK-PAO.

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    VIP Member Array ccw9mm's Avatar
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    Am reading Halbrook's That Every Man Be Armed, right now. Excellent and exhaustive coverage of exactly this question.
    Your best weapon is your brain. Don't leave home without it.
    Thoughts: Justifiable self defense (A.O.J.).
    Explain: How does disarming victims reduce the number of victims?
    Reason over Force: The Gun is Civilization (Marko Kloos).
    NRA, SAF, GOA, OFF, ACLDN.

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    In my opinion the problem now is that there are lawyers doing the arguing, and it's historians that have the proper interpretation. That is what causes the problems!
    Rick

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    I guess there is only one opinion that matters on this one...I can't wait to see how the Court's opinion goes.
    Training means learning the rules. Experience means learning the exceptions.

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    The intent was to have an armed people, to guard against crimes against the people, whether by overt or covert criminals, foreign or domestic, elected or not, at the request of those temporary elected governors or not. The statement of the 2A is reasonably clear. The base intent of the other Amendments support the traditional reading of the 2A, as well.

    In the end, the people were intended to forever be armed and able to defend themselves against crime, tyranny, kings and those who would be king.

    The only way, IMO, that the Supremes can fail in their duty is to claim that the 2A is inferior to every other Amendment in the Constitution with respect to the intended limits placed on temporary elected governors of the people, and that the 2A says something other than what it actually says. Nobody can claim that and be truthful. The Supremes cannot agree with that unless they're allowing political tyranny and expediency to rule the day.
    Your best weapon is your brain. Don't leave home without it.
    Thoughts: Justifiable self defense (A.O.J.).
    Explain: How does disarming victims reduce the number of victims?
    Reason over Force: The Gun is Civilization (Marko Kloos).
    NRA, SAF, GOA, OFF, ACLDN.

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    I hope so, I really do hope so.



    I'm not so sure that the American people are in such a state as to be willing to resist the de-armament of themselves by a governmental body to the extent that would nullify any beurocratic (or otherwise) attempt at controlling a then oppressed populace.

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