Learned is an understatement as we will not see the like of these folk ever again. The simple convergence of so much talent in so small a place in such a short time is such an historical rarity that even hardcore atheists should give Provedence a second look

But, as with anything else, one has to evaluate something in proper context. Given the time, place and circumstance the phrase "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." is a work of art.... item/explanation...in virtual poetry.


Happy Thanksgiving

The Second Amendment to the U.S. Constitution protects an individual right to keep and bear arms, stated U.S. Attorney General John Ashcroft in a letter to NRA-ILA Executive Director James Jay Baker dated May 17, 2001. Faced with that reality, the Violence Policy Center (VPC), a small gun-ban lobby, has discharged a superficial attack notable only for its flawed historical interpretation.

Despite the fact that the Attorney General did not comment on the case, the VPC launched an attack on the opinion by Judge Sam Cummings in United States v. Emerson, which is now on appeal in the Fifth Circuit. The court held the Second Amendment to invalidate a federal law prohibiting firearm possession by a person against whom a domestic violence restraining order has been entered without benefit of a hearing and with no factual finding of danger by the court.

Judge Cummings' opinion is unequaled in its scholarship and analysis of federal jurisprudence concerning the Second Amendment, and VPC offers up federal decisions stating the Second Amendment only protects a "collective" state power to maintain militias. It fails to mention that such statements are typically dicta in cases upholding convictions against felons in possession of firearms. No federal court has ever upheld a general prohibition by law-abiding citizens of firearms.

VPC also cites some district courts that have rejected Emerson, but the fact remains that Emerson is the only decision squarely to face the music-the text of the Second Amendment, the Framers' intent and the relevant U.S. Supreme Court decisions.

Attorney General Ashcroft states that "the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms." VPC claims that this contradicts United States v. Miller. But Miller held only that absent evidence in the trial court that a sawed-off shotgun "at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." The test was not whether the person in possession of the arm was a member of a formal militia unit, but whether the arm "at this time" is "ordinary military equipment" or its use "could" potentially assist in the common defense.

Referring to the Constitution's militia clause, Miller stated that "to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made." Also, members of the militia "were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." Contrary to VPC, the Second Amendment's two clauses complement each other; guaranteeing the right of the people to keep and bear arms ensures that a wellregulated militia will be available.

VPC claims its "collective" right theory is supported by certain "eminent scholars." But not a single one of these "eminent scholars" has published a book on the Second Amendment, and the Standard Model among scholars is the individual right interpretation.

No scholar or court has argued seriously that the Second Amendment guarantees a "right" to join or bear arms in the National Guard or a state militia-such organizations make their own recruitment and employment decisions. This argument, contrived in the 20th century to emasculate the Second Amendment, has never been taken seriously on the merits. On the other hand, the Standard Model is buttressed by two books and scores of scholarly articles.

The Attorney General states that the individual right "view of the text comports with the all but unanimous understanding of the Founding Fathers." He cites one reference in the Revolutionary period and three in 1788, the period of the Constitution's ratification. VPC can only complain that the references were not from 1791, the year the Second Amendment was finally ratified. Yet the Bill of Rights is explained by the rights colonists claimed during the Revolution, by the explanations of the Constitution's proponents, and by the demands for a bill of rights during its ratification period, particularly in 1788. The Bill of Rights was proposed and debated in Congress in 1789.

Ashcroft quotes George Mason at the Virginia ratification convention in 1788: "I ask, sir, what is the militia? It is the whole people ... To disarm the people is the best and most effectual way to enslave them." VPC claims Mason is 11 misquoted" because the two statements were made two days apart, but both quotations are authentic and relate to the same subject. Mason recalled:

"Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia."

It is clear that Mason was concerned-as is the Second Amendment-both with encouraging a popular militia and guaranteeing the personal right to possess arms. Mason asked:

"Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table [the Constitution] gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor. ... "

For Mason, promoting a militia of the whole people would be met in part by guaranteeing the individual right of all people to keep and bear arms. Accordingly, he and others persuaded the Virginia convention to demand a federal bill of rights asserting "the essential and unalienable rights of the people" including: "That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state. ..."

Incredibly, VPC asserts that "Mason took the position that a national government should have the power to disarm the people," and that "he understood the general pol ulation will be unarmed." VPC has completely turned upside down the Framers' explanations and objectives. VPC cannot cite a single one of the Founding Fathers who asserted its argument, for not one did so.

Ashcroft states: "In early decisions, the United States Supreme Court routinely indicated that the right protected by the Second Amendment applied to individuals." Four cases-United States a Cruikshank (1876), Logan v. United States (1892), Miller v. Texas (1893) and Robertson v. Baldwin (1897)-are cited, each one of which presupposed a personal right and none of which stated that the right exists only during active militia service. In that last case, the Court stated:

"The law is perfectly well settled that the first ten Amendments to the constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guarantees and immunities which we had inherited from our English ancestors ....."

Does VPC suggest that the power of states to maintain militias is a guarantee which we "inherited from our English ancestors," given that England did not even have states" Once again, the Supreme Court's clear language precludes VPC's spin.

The Ashcroft letter continues: "As recently as 1986, the United States Congress and President Ronald Reagan explicitly adopted this view in the Firearms Owners' Protection Act." The act states, "The Congress finds that the rights of citizens to keep and bear arms under the second amendment to the United States Constitution ... require additional legislation to correct existing firearms statutes and enforcement policies." This finding was amply supported by The Right to Keep and Bear Arms, a 1982 report of the Senate Judiciary Committee's Subcommittee on the Constitution. It found:

"The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first halfcentury after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner."

VPC writes as if Congress' 1986 declaration was an anomaly, but in fact Congress has passed similar declarations in pursuit of its duty to interpret the Constitution when it passes legislation. Following the Civil War, slave codes were reenacted which made it illegal for blacks to exercise basic civil rights, including the possession of firearms. Congress responded by passing the Freedmen's Bureau Act of 1866, which provided:

"the right . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color or previous condition of slavery." (Emphasis added)

This was approved by the same votes of over two-thirds of members of Congress who voted in favor of the 14th Amendment. Sen. Jacob Howard, when introducing the Amendment, explained that its purpose was to protect "personal rights" such as "the right to keep and bear arms" from state infringement.

In 1941, just before Pearl Harbor, Congress authorized the President to requisition property from the private sector on payment of fair compensation. The Property Requisition Act prohibited any construction "(1) to authorize the requisitioning or require the registration of any firearms possessed by any individual for his personal protection or sport (and the possession of which is not prohibited or the registration of which is not required by existing law), [or] (2) to impair or infringe in any manner the right of any individual to keep and bear arms...."

Committee Rept. No. 1120 [to accompany S. 1579], House Committee on Military Affairs, 77th Cong., 1 st Sess., at 2 (Aug. 4, 1941) explained: "In view of the fact that certain totalitarian and dictatorial nations are now engaged in the willful and wholesale destruction of personal rights and liberties, our committee deem it appropriate for the Congress to expressly state that the proposed legislation shall not be construed to impair or infringe the constitutional right of the people to bear arms ... . There is no disposition on the part of this Government to depart from the concepts and principles of personal rights and liberties expressed in our Constitution."

In short, as a co-equal branch of government, the Congress has enacted declarations making clear that the Second Amendment protects a fundamental civil right. Presidents Franklin Roosevelt and Ronald Reagan respectively signed two of these enactments. VPC's implication that such declarations are unprecedented and of no weight simply ignores Congress' historic and constitutional duty to interpret the Constitution in the first instance.

Ashcroft writes: "Significantly, the individual rights view is embraced by the preponderance of legal scholarship on the subject, which, I note, includes articles by academics on both ends of the political spectrum." He cites law review articles by Professors Van Alstyne, Amar, Cottrol & Diamond, Levinson and Kates. VPC tries but cannot refute what is accepted as the Standard Model of the Second Amendment as an individual right. Hardly any of the professors cited by VPC who lent their names to the amicus brief in Emerson have published anything on the Second Amendment.

VPC concludes its attack by grumbling that several of Ashcroft's quotes were the same as presented by the district court in Emerson. Of course they are-- these are significant statements in the history of the Second Amendment. The VPC can't stand this recognition of historical reality. And it can't stand an Attorney General who honors his oath to uphold the Constitution, not re-write it.

# Stephen P. Halbrook ; "The Jurisprudence of the Second and Fourteenth Amendments." George Mason University Law Review 4 (1981): xvi-69.
# Stephen P. Halbrook ; "To Keep and Bear Their Private Arms: The Adoption of the Second Amendment, 1787-1791." Northern Kentucky Law Review 10 (1982): 13-39.
# Stephen P. Halbrook ; "Tort Liability for the Manufacture, Sale, and Ownership of Handguns." Hamline Law Review 6 (1983): 351-82.
# Stephen P. Halbrook ; That Every Man be Armed : The Evolution of a Constitutional Right. Oakland, Calif.: Independent Instiute, 1994. Reprinted from original edition, Albuquerque: University of New Mexico Press, 1984.
# Stephen P. Halbrook ; "The Second Amendment as a Phenomenon of Classical Political Philosophy." In Firearms and Violence: Issues of Public Policy, edited by Don B. Kates, Jr. San Francisco, Calif.: Pacific Institute for Public Policy Research; and Cambridge, Mass.: Ballinger, 1984.
# Stephen P. Halbrook ; "The Right to Bear Arms in the First State Bills of Rights: Pennsylvania, North Carolina, Vermont, and Massachusetts." Vermont Law Review 10 (1985): 255-320.
# Stephen P. Halbrook ; "What the Framers Intended: A Linguistic Analysis of the Right to 'Bear Arms'." Law and Contemporary Problems 49, no. 1 (winter 1986): 151-62.
Abstract
# Stephen P. Halbrook ; "The Right to Bear Arms in Texas: The Intent of the Framers of the Bills of Rights." Baylor Law Review 41, no. 4 (fall 1989.): 629-88.
# Stephen P. Halbrook ; "Encroachments of the Crown on the Liberty of the Subject: Pre- Revolutionary Origins of the Second Amendment." University of Dayton Law Review 15, no. 1 (fall 1989): 91-124.
# Stephen P. Halbrook ; A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees. New York: Greenwood Press, 1989.
# Stephen P. Halbrook ; "The Original Understanding of the Second Amendment." In The Bill of Rights: Original Meaning and Current Understanding, edited by Eugene W. Hickok, Jr., 117-29. Charlottesville: University Press of Virginia, 1991.
# Stephen P. Halbrook ; "Victims and Arms in Classical Legal Philosophy." In To Be a Victim: Encounters with Crime and Injustice, edited by Diane Sank and David I. Caplan, 359-70. New York: Plenum Press, 1991.
# Stephen P. Halbrook ; “The Right to Keep and Bear Arms under the Second and Fourteenth Amendments.” Journal on Firearms and Public Policy 5 (fall 1993): 7-28.
# Stephen P. Halbrook ; "The Right To Bear Arms." The Champion 17 (January-February 1993): 14-20.
# Stephen P. Halbrook ; "Rationing Firearms Purchases and the Right to Keep Arms: Reflections on the Bills of Rights of Virginia, West Virginia, and the United States." West Virginia Law Review 96, no. 1 (fall 1993): 1-83.
# Stephen P. Halbrook ; "The Fourteenth Amendment and The Right To Keep and Bear Arms: The Intent of the Framers." In Gun Control and the Constitution: Sources and Explorations on the Second Amendment , edited by Robert J. Cottrol, 360-74. New York : Garland Pub., 1994.
# Stephen P. Halbrook , Richard E. Gardiner ; "NRA and Law Enforcement Opposition to the Brady Act: From Congress to the District Courts." St. John's Journal of Legal Commentary 10, no. 1 (fall 1994): 13-41.
# Stephen P. Halbrook ; "Second-Class Citizenship and the Second Amendment in the District of Columbia." George Mason University Civil Rights Law Journal 5, no. 1-2 (winter 1994): 105-78.
# Stephen P. Halbrook ; “The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment.” Valparaiso University Law Review 26 (fall 1991): 131-207. Abridgement printed in Journal on Firearms and Public Policy 6 (fall 1994): 69-163.
# Stephen P. Halbrook ; "Congress Interprets the Second Amendment: Declarations by a Co-Equal Branch on the Individual Right to Keep and Bear Arms." Tennessee Law Review 62, no. 3 (spring 1995): 597-641.
# Stephen P. Halbrook ; Freedmen, the Fourteenth Amendment, and the right to bear arms, 1866-1876. Westport, Conn.: Praeger, 1998.
# Stephen P. Halbrook , David Kopel ; "Tench Coxe and the Right to Keep and Bear Arms, 1787-1823." William & Mary Bill of Rights Journal 7, no. 2 (February 1999): 347-99.
# Stephen P. Halbrook ; "The Right of Workers to Assemble and to Bear Arms: Presser v. Illinois, One of the Last Holdouts against Application of the Bill of Rights to the States." University of Detroit Mercy Law Review 76, no. 4 (summer 1999): 943-89.
# Stephen P. Halbrook ; "Nazi Firearms Law and the Disarming of the German Jews." Arizona Journal of International and Comparative Law 17, no. 3 (2000) : 483-532.
# Stephen P. Halbrook , Joyce Lee Malcolm ,&nbspRonald Riccio; David Yassky; Jonathan E. Lowy ; "Symposium: The Second Amendment." Seton Hall Constitutional Law Journal 10, no. 3 (summer 2000): 815-47.
# Stephen P. Halbrook , Cynthia Leonardatos , David Kopel ; "Miller versus Texas: Police Violence, Race Relations, Capital Punishment, and Gun-Toting in Texas in the Nineteenth Century--and Today." Journal of Law and Policy 9, no. 3 (2001): 737-66.
# Stephen P. Halbrook ; "The Freedmen's Bureau Act and the Conundrum over whether the Fourteenth Amendment Incorporates the Second Amendment." Northern Kentucky Law Review 29, no. 4 (2002): 683-703.
# Stephen P. Halbrook , David Kopel ,&nbspStephen P. Halbrook; Alan Korwin ; Supreme Court Gun Cases: Two Centuries of Gun Rights Revealed. Phoenix: Bloomfield Press, 2004. Abstract
# Stephen P. Halbrook ; "The Second Amendment in the Supreme Court: Where it's Been and Where it's Going" 29 Hamline Law Review (Summer 2006), 449-459 Abstract
# Stephen P. Halbrook ; "Nazism, the Second Amendment, and the NRA: A Reply to Professor Harcourt" 11 Texas Review of Law and Politics (Fall 2006), 113-131. Abstract

At this point, I am willing to have somebody make a case as to what that darn peculiar construction ACTUALLY means.

For all their wisdom and glory and everything else, I don't think the 2nd Amendment was their finest hour. At least syntax wise.

But, as with anything else, one has to evaluate something in proper context. Given the time, place and circumstance the phrase "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." is a work of art.... item/explanation...in virtual poetry.

Why just critique the second amendment?


No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I think their punctuation might just be worse than mine.

I think their punctuation might just be worse than mine.

I swear half that olde English writing is almost incomprehensible. Ever read any letters of the time?

Probably. Cant really mention any by name. Why yes! I've read the Smythe translations of the Verona Papers as a matter of fact.

I actually like hearing some of those letters/corespondence that one might see on the History Channel or something. The people involved can be talking about a duel or a situation of equal gravity, be speaking to a mortal enemy of sorts, and they still cling to this noble civility or something. They really took the time back then. The language is very heady and lofty.

I guess it is for the same reason that I like authors lie Poe and Lovecraft. Diaries/Journals from the time are very interesting to me. It seemed as though folks wrote for an audience/posterity more than they did a quick note that was going to be tossed in the fire after one perusing.

It was mostly copied. They were smart enough, but hardly superhuman.

With pen, paper and ink at a premium a letter was probably a lot bigger deal. Not like a spam email you get 50 of every day and delete without even looking. If you like Poe you're probably better at discerning the meaning of revolutionary era writing. Closer to Shakespeare than today.

Copied is a bit strong...practical is more like it...but supermen nonetheless.

Well I always imagine the time and effort expended. How many of those people had a dictionary handy? And did such a thing as a thesarus exist back then? Even if such a thing existed how many people were fortunate enough to actually own one? I personally think I have a pretty good vocabulary because I read a lot. I figure back then that educated people read everything that they could get their hands on, but how much of it could they add to their archives? So, to me, that meant that these people wrote the things that they did moreso reliant on their own experience and recollection and education than any of us pampered ponces do these days. Of course, as now, everyone is limited or enhanced by the resources of the time.

I would figure most of these folks sat around over a glass of spirits talking with their buddies about it and then they all spent the whole night drinking and discussing it and then collectively composing or responding or proclaiming/declaring. Many of the things that I have read or heard of had an awfully official aire about them. Sure, people spoke differently back then, but like I said, I think much of it was written knowing it was going to eventually be published.

It's absolutely free Bart. You're the only one who has to pay, on account o' the fact that you only take a bath once a year, and spend the rest of your time rolling in pig slop.

I am sure they have. Probably, in part, for polemical reasons. I enjoy exegesis. I would like to have all the possible interpretations and supporting evidence. Hopefully, I can come up with my own satisfactory understanding after I have done all that.

The SENTENCE, itself, as written, does NOT make sense to ME.

Of course it doesn't, it's in plain, unadulterated (ανόθευτος) English; not mingled or diluted with extraneous matter which seems to be your trademark!

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.

Let him think I am more man than I am and I will be so.

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.

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.

I wonder if they had our modern rules for comma usage back in those days. I tend to like to use commas wherever I might pause for emphasis were I speaking. Maybe they did too.

http://blog.thehumanist.com/index.php/2007...-armed-america/

The Comma That Armed America

Just why some argued against even having a BOR.

http://en.wikipedia.org/wiki/United_States_Bill_of_Rights

Arguments against the Bill of Rights


The idea of adding a bill of rights to the Constitution was originally controversial. Alexander Hamilton, in Federalist No. 84, argued against a "Bill of Rights," asserting that ratification of the Constitution did not mean the American people were surrendering their rights, and therefore that protections were unnecessary: "Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations." As critics of the Constitution referred to earlier political documents that had protected specific rights, Hamilton argued that the Constitution was inherently different. Unlike previous political arrangements between sovereigns and subjects, in the United States there would be no agent empowered to abridge the people's rights:

Bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was "Magna Charta", obtained by the Barons, sword in hand, from King John.[2]

Finally, Hamilton expressed the fear that protecting specific rights might imply that any unmentioned rights would not be protected:

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?[3]

Essentially, Hamilton and other Federalists believed in the British system of common law which did not define or quantify natural rights. They believed that adding a Bill of Rights to the Constitution would limit their rights to those listed in the Constitution. This is the primary reason the Ninth Amendment was included.

I'm glad Hamilton's argument lost out, given the complaints we hear from the strict constructionists about judges "finding" rights in the Constitution that the founders didn't intend or spell out.

Rights for who, the people or the Federal government? Seems to me the original document was meant to seriously rein in the Fed's power.

Rights for the peeps, of course.

I see a lot of people proclaiming rights to healthcare, jobs, retirement, unemployment etc. At what point is something a right? We've gone far afield from what the founders considered a right.

Most of the newer "rights" are founded in legislation. Age and gender discrimination and the like. The classic right that the strict constructionists seem to object to is the right to privacy, which is not spelled out in the constitution.

The second amendment is written well enough for anyone to see what it means. Some may try to twist it and spin it, but that's all on account of politics. Why anyone would be so concerned about a comma, when all that's been hashed over a zillion times, is beyond me.

Now, why do you have to impute negative or surreptitious motives to all people who do not find the II Amendment terribly self-explanatory?

I hope you're kidding about the 'been hashed over a million times' part. Do you know how often I feel the same way about all the peculiar doctrines and opinions I see expanded on here about political theory, rights, religion and science and the rest of it?

Because those are the kinds of people that try to do that poop. That's obvious.

Right. It's obvious. That's called a tautology.

http://www.saf.org/Constitutions.html#WithOut

States Without Specific Constitutional Provisions:

Only six states fail to enumerate a Right to Keep and Bear Arms Clause. Of these states, Iowa and New Jersey have a general "defending life and liberty" clause for self-protection.


California: Nothing.

However, the California Constitution provides for "inalienable rights" including "defending life and liberty ... and protecting property..." Article I, Section 1 reads:

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

Good for California.

Now, why do you have to impute negative or surreptitious motives to all people who do not find the II Amendment terribly self-explanatory?

I hope you're kidding about the 'been hashed over a million times' part. Do you know how often I feel the same way about all the peculiar doctrines and opinions I see expanded on here about political theory, rights, religion and science and the rest of it?

Many folks do not have your reservations, but simpy believe that we have the right to keep and bear arms in order to maintain security as part of a well regulated militia.
Would you be kind enough to give us/me your honest evaluation of what might be an alternative interpretation, and the process of that interpretation?

"Bear Arms" is not merely a right, but an OBLIGATION.

Just keep throwing commas in sentences, and posterity will love you.

The Greco-Roman (pre-Empire) ideal of the citizen-hoplite (citizen also implied full access to one's "share" in the city's land, and thus an independent means of procuring one's livelihood).

"Bear Arms" is not merely a right, but an OBLIGATION.

Just keep throwing commas in sentences, and posterity will love you.