Conservative Cir. Judges Against RTKBA

[M_Jagger]

More evidence that the men in the militia were not expected to provide their own arms.

An act providing arms for the militia throughout the United States. (Approved July 6, 1798)

SEC. 1. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, that there shall be provided, at the charge and expense of the government of the United States, thirty thousand stand of arms, which shall be deposited, by order of the President of the United States, at suitable places, for the purpose of being sold to the governments of the respective states, or the militia thereof, under such regulations, and at such prices, as the President of the United States shall prescribe.​

The State militias obtained their arms from the state governments who purchased the arms from the United States.

 

[M_Jagger]

Madison explains, that rule is invoked only if the purpose is absolutely frustrated by the means provided.

You need to learn how to read.

 

[legaleagle_45]

More evidence that the men in the militia were not expected to provide their own arms.

Since, and as Madison explains in Federalist 46, the militia of the USA would consist of 500,000 men. You have accounted for 30,000, how do you make up the remaining 470,000?

It is real interesting to read the debates in congress over this particular act. The arms were purchased, of course to fill in the gaps when some militia men did not own their own arms, or could not afford to take the household gun from the household due to it being needed for subsistence purposes and self defense by the persons remaining in the home. There was a very strong argument made that, upon completion of militia duties, the arms should be presented to the militia man as his individual property.

Your argument is totally disingenous and deceptive. The fact is that the militia relied PRIMARILY upon individually owned weapons. That shortfalls had to be made up by governmental purchase is not a contradiction of this historical fact.

That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service

Deal with it... it was the primary mode of arming the militias during the colonial era and well into the early history of our republic... and thats a fact, jack.

 

[legaleagle_45]

You need to learn how to read.

Hmmm, no argument, only insult? Is that what you have lowered yourself to?

I expected better, M_Jagger. I had hoped you would try to explain some adverse conflict in the right to keep and bear arms to the maintenance of a well regulated militia... but alas, you failed. And properly so, since no real argument can be made. The existence of an armed populace (not just militia) insures the availability of arms for the militia, whether those arms are owned by Joe Militiaman, borrowed by Joe Militiaman from him Grandma Betty, contributed by local patriots or merely purchased at the time of enrollment. It provides an unassailable armory for the militia protected from the whims of politics by the 2nd Amend. They can not be disarmed, so there will always be a SOURCE of militia weapons, regardless of what the government does or does not do with respect to arming the militia... whether it be through malicious design, or benign neglect.

Madison knew this all to well:

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

Wanna try again?

 

[M_Jagger]

Even more evidence that the men in the militia were not expect to furnish their own arms.

An act making provision for arming and equipping the whole body of the militia of the United States. (Approved April 3, 1808)

SEC. 1. Be it enacted by tlw. Senate and House of Representatives of the United States of America, in Congress assembled, That the annual sum of two hundred thousand dollars be, and the same hereby is, appropriated for the purpose of providing militia arms and military equipments for the whole body of the militia of the United States, either by purchase or manufacture, by and on account of the United States. ​

Notice that Congress provided arms for the whole body of the militia.

 

[legaleagle_45]

Even more evidence that the men in the militia were not expect to furnish their own arms.

Not evidence at all, M_Jagger. Let's start with some information for you. I have access to the entire congressional record... the records of all debates and bills and resolutions from the Continental Congress through the Civil War, so please stop playing games.

Notice that Congress provided arms for the whole body of the militia.

Notice that the bill does NOT say for the purpose of providing all the militia arms and all military equipments for the whole body of the militia.

The reference to to the whole body of the militia, as is clear from the debates in Congress, is in contradistinction to the various portions of the militia. For example, the same Congress passed a law (almost simultaneously with the one you reference) for providing additional arms and artillery to the militia of Ohio. This provision passed in March of 1808 and provides for the transfer of 7,000 arms "for the purpose of arming, in part the militia of that state." It also provides for the transfer of 20 artillery pieces to Ohio.

Now, if you go back to the debates on the bill you reference (HR 90- 10th Congress), you will see that the annual appropriation of $200,000.00 would only fully equip 1,000 militia members... The plan was to provide such a sum annually to alleviate the shortfalls in equipment experienced because not all of the militia members supplied their own arms. Sheesh, you are going backwards, M_Jagger, now you only have to account for the remaining 499,000 members of the WHOLE BODY OF THE MILITIA.

Wanna try again?

 

[M_Jagger]

Loan Eagle:

Since, and as Madison explains in Federalist 46, the militia of the USA would consist of 500,000 men. You have accounted for 30,000, how do you make up the remaining 470,000?

It is real interesting to read the debates in congress over this particular act. The arms were purchased, of course to fill in the gaps when some militia men did not own their own arms, or could not afford to take the household gun from the household due to it being needed for subsistence purposes and self defense by the persons remaining in the home. There was a very strong argument made that, upon completion of militia duties, the arms should be presented to the militia man as his individual property.

Your argument is totally disingenous and deceptive. The fact is that the militia relied PRIMARILY upon individually owned weapons. That shortfalls had to be made up by governmental purchase is not a contradiction of this historical fact.

 

[legaleagle_45]

M_Jagger

No substantive reply again? Too bad..

Try this. According to the 1806 congressional committee report on the readiness of the militia:

“From the best estimates which the committee has been able to form, there is upwards of 250,000 fire arms and rifles in the hands of the militia, which have, a few instances excepted, been provided by, and are the property of, the individuals who hold them.” American State Papers: Military Affairs, 1:198.

Hmmm that takes care of 50% of the arms neccesary for the 500,000 man militia... and those are arms which are the property of the individuals who hold them

Wanna try again?

 

[mbt2001]

Edited:

I took out all the quotes, as one of them (GW was bogus, or so it seems)

 

[M_Jagger]

The right of the people to keep and bear arms was understood to mean that the people had a right to keep and to bear arms for the common defense, not for personal defense. (See the Massachusetts Constitution of 1780.)

Art. XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.​

--Massachusetts Constitution of 1780​

If you're not in the militia or the arms in question are not being used for the common defense, you have no right to keep them under the Second Amendment.

 

[legaleagle_45]

The right of the people to keep and bear arms was understood to mean that the people had a right to keep and to bear arms for the common defense, not for personal defense. (See the Massachusetts Constitution of 1780.)

The Massachusetts declaration of rights is not worded in the same manner as the 2nd Amend. In fact, there was a proposal to add the verbiage "for the common defence" to the 2nd, and such proposal was soundly defeated. Additionally, the language "keep" seems to be a legal term of art of the time which implicated the individual right of self defense. See eg, Rex v. Gardner, 87 Eng. Rep. 1240, 1241 (K.B. 1739); Mallock v. Eastley, 87 Eng. Rep. 1370, 1374 (K.B. 1744); Wingfield v. Stratford, 96 Eng. Rep. 787 (K.B. 1752); accord, The King v. Thompson, 100 Eng. Rep. 10, 12 (K.B. 1787); Rex v. Hartley, II Chitty 1178, 1183 (1782) .

Further, and also on point, is that the right to arms as an Englishman involved both the right of self preservation and the right of resistance to tyranny. William Blackstone, Commentaries on the Laws of England (1765). This, of course, is known as the 5th Auxiliary Right which Blackstone describes in his Chapter titled "The Absolute Right of Individuals".

Finally, Massachusetts was not the sole colony to have an analog 2nd. Pennsylvania and Vermont had provisions also which no one disputes as implicating the individual right to arms for self defense.

Wanna try again?

 

[M_Jagger]

There is little evidence that the framers of the Second Amendment were concerned with recognizing an individual right to keep arms...the framers of the amendment were concerned primarily with the constitutional organization of political violence rather than individual rights.​

--Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment; ROBERT H. CHURCHILL​

http://www.historycooperative.org/journals/lhr/25.1/churchill.html#REF14

 

[legaleagle_45]

From your own link:

The language of "keeping arms," then, had a colloquial meaning that applied to individuals outside of the context of militia service. North Carolina's 1741 slave code, for example, ordered that "no slave shall go armed with gun, sword, club, or other weapon, or shall keep any such weapon."

Evidence from the Revolutionary period indicates that Americans had come to view the right to keep arms as one of the rights of citizenship. In the Revolution-era Test Acts one can discern a consistent association between the right to keep arms and other basic civil rights: the right to vote, the right to hold office, the right to sit on a jury, the right of access to the civil courts, the right to practice licensed professions, and the right to buy or sell property.

Nevertheless, the evidence presented here is sufficient to support three historical conclusions: An interpretation of the Second Amendment as securing in part an individual right to keep arms was contemporaneous with the amendment's framing. That interpretation was recognized as authoritative early in the nineteenth century. Finally, the early American proponents of that interpretation transcended region, partisan affiliation, and any reasonable measure of plebeian consciousness. Lawyers, backwoodsmen, Federalists, and Democrats, they believed, like Mrs. Barrett's militiaman, that they had a right to keep arms.

Quotes from the founding fathers surrounding the framing of the Constitution:

[

The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms. ---James Madison,The Federalist Papers, No. 46.

Roger Sherman:

[C]onceived it to be 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.

Other commentaries:

Saint George Tucker
"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.

Wanna try again?

 

[M_Jagger]

The Pennsylvania Constitution in effect at the time the Second Amendment was made didn't acknowledge an individual right to keep arms, which is proof that the people of the State didn't believe it was wise to strip the government of all power to regulate arms.

http://avalon.law.yale.edu/18th_century/pa08.asp

 

[legaleagle_45]

The Pennsylvania Constitution in effect at the time the Second Amendment was made didn't acknowledge an individual right to keep arms, which is proof that the people of the State didn't believe it was wise to strip the government of all power to regulate arms.

BZZZT wrong. The Pennsylvania Constitution provided specifically for a right to have arms in defense of themselves as well as the state:

XIII. That the people have a right to bear arms for the defence of themselves and the state

This was amended in one detail in 1790 to substitute "citizen" for people and further indicating that this right shall not be questioned.

James Wilson, president of the convention which adopted that provision, a leading Federalist, and later Supreme Court Justice, explained it in a discussion of homicide:

"...it is the great natural law of self preservation, which, as we have seen, cannot be repealed, or superseded, or suspended by any human institution. This law, however, is expressly recognised in the constitution of Pennsylvania. "The right of the citizens to bear arms in the defence of themselves shall not be questioned." This is one of our many renewals of the Saxon regulations. "They were bound," says Mr. Selden, "to keep arms for the preservation of the kingdom, and of their own persons."

2 Collected Works of James
Wilson 1142, and n. x (K. Hall & M. Hall eds. 2007) (citing
Pa. Const., Art. IX, §21

Wanna try again?

 

[OMDP]

The Pennsylvania Constitution provided specifically for a right to have arms in defense of themselves as well as the state:

I have always wondered how they debated this in the Pennsylvanian legislature, depending on your view of "the people" it can mean two things.
If the people is the collective of individuals, then the right of the people to defend themselves could easily be from the state, and from external forces. Ie, the group can take up arms, form a militia and defend the people from outside forces.
It could also mean self defence. And the fact that pennsylvania changed their reading of this a few years later (1790) to "Article 9 Sec. 21. That the right of citizens to bear arms, in defence of themselves and the State, shall not be questioned." suggests that they may have come to realise that the way they wrote what they wrote may not have been the best way.

But then again, the debates in the legislature would be kind of helpful. YOu would have thought that the right of citizens to bear arms in defence of themselves is clearer about the position that it was for self defence.

he one thing i have found is that, espcially in the emerson case, they took the term "bear arms" from the 2A to mean, not only being in the militia, but also self defence and probably carry and conceal, though the supreme court made clear that this was not so for the latter case.
I would say that pennsylvania in 1790 made it clear and the context is clear that self defence was a part of this, the 2A has never done this, and i personally don't believe the 2A protects the right to self defence, i think this comes from elsewhere in the constitution.

 

[OMDP]

M Jagger

Even more evidence that the men in the militia were not expect to furnish their own arms.

The men in the militia were NOT expected to furnish their own arms through the 2A. The 1792 militia act makes this clear because they forced people by law, rather than through the constitution. However it is ridiculous to claim as you seem to be, that this then jumps to the premise that people can only have guns if they are in the militia.

The 2A existed to protect the militia from the federal government. If you took arms away from the people, then the militia would not have weapons in a situation where it is needed. The supreme court is right that the right to keep arms is not dependent upon the "A well regulated militia" part, however it is part of the context of the right to keep arms, in that the militia needs people to keep arms.

Using your logic, then the right to bear arms, ie, the right to be in the militia, is only valid if someone is in the militia. So, the US govt could ban all people being in the militia, they are not in the militia, and therefore have no right to be in the militia. What would the point of that be?

Notice that Congress provided arms for the whole body of the militia.

And the logic being, they can disarm the whole body of the militia. They did not have to provide these arms though, and in the case of bad govt, which the militia is a check and balance on, it would all fall apart because the bad govt would take away all the arms from the militia.

The right of the people to keep and bear arms was understood to mean that the people had a right to keep and to bear arms for the common defense, not for personal defense. (See the Massachusetts Constitution of 1780.)

Art. XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.

--Massachusetts Constitution of 1780
If you're not in the militia or the arms in question are not being used for the common defense, you have no right to keep them under the Second Amendment.

As i have said, i am a little confused as to how you make this leap from one thing to another. SO you don't have the right to self defence from the 2A, that does not mean you do not have the right to have a weapon at home. The self defence aspect comes from elsewhere in my opinion. But still exists. But you could use so many things for self defence, a TV for example, does that mean that you have a right to a TV from the 2A? No.

 

[M_Jagger]

XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

--Pennsylvania Constitution of 1776.​

The Pennsylvania Constitution of 1776 didn't provide for a right to keep arms. The right was only to "bear arms", which was nothing more than a right to form a body to use force to defend themselves and the state.

 

[M_Jagger]

The founding fathers apparently did believe in gun control.

On 6 April 1776 the Continental Congress debated legislation dealing with "non-associators." The speakers distinguished between those who had refused to bear arms on account of their religious beliefs and those who had simply refused to associate with the new nation. Congress voted to disarm all non-associators other than religious dissenters. "Resolved, that it be earnestly recommended by this House to all well affected Non-Associators who are possessed of arms, to deliver them to Collectors . . . as they regard the freedom, safety and prosperity of their country."​

 

[everallm]

JAGS babes,

With regard to your last point, you do appear to have a little difficulty grasping the difference between regulation, restriction, control and prohibition.

In general,

Whilst your premises, inaccurate and fallacious as they, regarding "weapons is only for da militia" are entertaining they fail on a simple ground.

Even assuming your views bore any relationship to reality, you continually harp on about "the militia" without further qualification.

Where pray tell does the "unorganized militia" fall within your view?

That being everyone not in the military or "organized militia" to whit, thee, me and 60+% of the populace?

 

[Phil Lee]

M_Jagger says

The founding fathers apparently did believe in gun control.

As support you reference a 1776 wartime act of the rebel Continental Congress to disarm those opposed (unwilling to associate) to the the rebel government. Really, is this the best you can do?

Anyway, this act was prior to the adoption of the Constitution and Bill of Rights.

Next thing, I suppose, you'll be quoting Gen. Howe's disarming of the people of Boston to prove the government in North America supported gun control.

 

[legaleagle_45]

The right was only to "bear arms", which was nothing more than a right to form a body to use force to defend themselves and the state.

Incorrect. According to James Wilson, former US Supreme Court Justice and president of the Pennsylvania convention which adopted similar language in the 1790
Pennsylvania Constitution, the right protected, included the right to "keep arms", thus his statement:

"...it is the great natural law of self preservation, which, as we have seen, cannot be repealed, or superseded, or suspended by any human institution. This law, however, is expressly recognised in the constitution of Pennsylvania. "The right of the citizens to bear arms in the defence of themselves shall not be questioned." This is one of our many renewals of the Saxon regulations. "They were bound," says Mr. Selden, "to keep arms for the preservation of the kingdom, and of their own persons."

Now who to believe? A former US Supreme Court Justice who was actually involved in adopting the language in question or some anon internet poster on a message board???

No contest!

The right was only to "bear arms", which was nothing more than a right to form a body to use force to defend themselves and the state.

So you disagree with Thomas Jefferson and James Madison too? A bill authored by Thomas Jefferson and introduced by James Madison to the Virginia Legislature prohibited the hunting of deer under certain circumstances, and concluded by commanding:

. . . and if, within twelve months after the date of the recognizance he shall bear a gun out of his inclosed ground, unless whilst performing military duty, it shall be deemed a breach of the recognizance, and be good cause to bind him anew, and every such bearing of a gun shall be a breach of the new recognizance and cause him to be bound again.

2 The Papers of Thomas Jefferson 443, 444 (Julian P. Boyd ed. 1950).

Then, of course, we have this from the Pennsylvania Minority Proposal:

That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game;

So unless you believe that Thomas Jefferson was concerned about a military expedition as against deer, or those folks in Pennsylvania were concerned about a tribe of bunny rabbits attacking their community, your conclusion is clearly in error.

Wanna try again?

 

[M_Jagger]

Under the Second Amendment only the people in the militia have a right to keep and bear arms.

The Second Amendment was obviously intended to be ambiguous and we could play Sherlock Holmes and speculate from now until the sun burns out about what the lawmakers were thinking. Fortunately however, we don't have to do that.

There existed in 1789, a system of "rules of construction", or "rules of legal interpretation", which had been established to ascertain the meaning of ambiguous language in a constitution. All we have to do is take the words of the Second Amendment, set aside our personal views, apply the rules and accept the results.

In 1789, the rule of legal interpretation applicable to the case where the parts of a legal expression didn't coincide was that, "the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means."

The end being sought by the Second Amendment is "the security of a free state." The means to that end is "a well regulated militia." "The right of the people to keep and bear arms" functions in a subordinate capacity as merely an auxiliary means to the end of "the security of a free state."

The applicable rule of construction dictates that we sacrifice the meaning of the word "people" to the end of "the security of a free state." Thus, we are compelled to construe the word "people" to mean "well regulated militia", and understand the second clause of the Amendment to mean, the right of the well regulated militia to keep and bear arms shall not be infringed.

I don't like those results. But I accept it.

 

[M_Jagger]

M_Jagger
The founding fathers apparently did believe in gun control.

Respondent
As support you reference a 1776 wartime act of the rebel Continental Congress to disarm those opposed (unwilling to associate) to the the rebel government.

No kidding? What does "disarm" mean to you?

If the founders had believed in an God given individual right to keep and use arms for individual defense, they wouldn't have violated it. Duh!

 

[legaleagle_45]

The founding fathers apparently did believe in gun control.

The same argument could be made concerning the 5th amendment and that it does not protect life, liberty or property without due process of law by virtue of the concentration camps established for those of Japanese descent during WWII, or the suspension of the writ of habeas corpus during the Civil War.

I do not think you wish to make that argument...

Wanna try again?