regard@ttidcc.UUCP (Adrienne Regard) (06/27/85)
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As I promised, now that finals are over, I have dug out my articles on
the history and contemporary writings of the people who drafted the
2nd amendment.
I know that there are many out there who will not be pleased to have this
discussion start up _all over again_. Please "break" now, and move on.
Others who are interested may have an overwhelming desire to post. I can't
help that. Please use a clear, consistant heading so that other people can
"n" past if not interested. I'd be happy to handle any questions/comments
I can through mail to spare the net as a whole. Any flames for my grammar,
syntax, spelling, interpretation, etc., obviously should be mailed person-
ally, unless you like being "re-fried" publicly. Most of this text _isn't_
my comment, nor necessarily my opinion. I include _no_ emphasis of my own.
I haven't included the investigation into the history of English Common
Laws, and specific acts prior to the Constitution which also support the
Subcommittee's conclusions. You can order the Subcommittee's report if you
want that. Some elipses (...) are mine for condensation, some are the
report's or the magazine's. Most quotes are from the Subcommittee's report,
unless specifically credited to other people.
Copies of the actual US Senate Subcommittee report can be had by writing
the Government Printing Office, Washington D.C. 20402. Request stock
number 052-070-05686-0, and enclose a $5 check. OBVIOUSLY, I have not
included the entire text of the Subcommittee report or the magazine
articles.
From here, we can certainly discuss the appropriate-ness of the 2nd Amend-
ment to the Constitution, but this should help clear up the arguments
about the _meaning_ of same. Here we go.
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The US Senate subcommittee was headed up by Senator Orrin Hatch (R-Utah).
Their charter was "interpreting the Constitution [of the United States] for
the Senate". The nearly 200 page document states "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 half-century 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."
Senator Hatch in the foreward "...I sponsored the report which follows as
an effort to study, rather than ignore, the history of the controversy over
the right to keep and bear arms. Utilizing the reseach capabilities of the
Subcommittee on the Constitution, the resources of the Library of Congress,
and the assistance of constitutional scholars...the subcommittee has managed
to uncover information on the right to keep and bear arms which documents
quite clearly its status as a major individual right of the American
citizens." He continues "We did not guess...We did not make suppositions...
We did not speculate...We examined colonial newspapers...we examined James
Madison's drafts...we located the Journals of the House of Commons..."
"The subcommittee noted that when the Constitution was being debated, in the
press and in the state ratifying conventions, that: (1) the opponents of the
Constitution, who also pressed for a Bill of Rights guaranteeing certain
fundamental liberties, stressed the need to protect individual armament;
(2) supporters of the Constitution argued that ownership of firearms by
citizens would protect against any tyranny under the Constitution; and (3)
neither group trusted nor wanted to protect 'select militia' units which
received special goverment training and weapons." (David T. Hardy)
Prior to ratification of the Constitution:
Patrick Henry argued to the Virginia convention, "the great object is that
every man be armed." and "everyone who is able may have a gun". Richard
Henry Lee, "to preserve liberty, it is essential that the whole body of
the people always possess arms and be taught alike, especially when young,
how to use them." Noah Webster argued for the Constitution in a pamphlet,
"Before a standing army can rule, the people must be disarmed, as they are
in almost every kingdom in Europe. The supreme power in America cannot
enforce unjust laws by the sword, because the whole body of the people
are armed..." A (unnamed) Massachusetts delegate asked how any army "could
subdue a Nation of freemen, who know how to prize liberty and have arms
in their hands?". James Mason in Federalist Paper #46 (he drafted
the work that became the Bill of Rights) said Americans had "the advantage of
being armed,"and were thereby able to form the militia when needed as a
"barrier against the enterprises of despotic ambition." Alexander Hamilton,
Federalist Paper #29 said "the people at large {were} properly armed" in
order to serve as fundamental checks and balances against the standing
army. Sam Adams (Massachusetts) sought a guarantee that the Constitution
would never be used "to prevent the people of the United States who are
peacable citizens from keeping their own arms." New Hampshire's convention
demanded "Congress shall never disarm any citizen unless such as are or
have been in actual rebellion."
Interpretation after Ratification:
"George Tucker...noted that the American right was intended to be broader
than the British 1688 Declaration*...close personal friend of Jefferson,
knew and corresponded with Madison...had a brother in the first House and
his closest friend in the first Senate...spoke from personal knowledge,
not just historical research." (David T. Hardy)
*"In 1688...Parliament attempted ot guarantee against future
infringements on the rights of Englishmen by requiring William
and Mary...to agree to a 'Declaration of Rights'..." which
stated "The subjects which are Protestant may have arms for their
defense suitable to their conditions and as allowed by law."
The 1 - 2% of Catholics, viewed with suspicion in 17th century
England, were excluded. Protestant "independents" such as
Quakers, who were denied most other civil rights, were still
permitted gun ownership. (ibid. and the 1688 Declaration.)
William Rawle, Philadelphia attorney, friend of Washington, offered the
post of Attorney General, "No clause in the Constitution could by any rule of
construction be conceived to give to Congress a power to disarm the people"
Title 10, Section 311 of the US Code states, "The militia of the United
States consists of all able-bodied males at least 17 years of age..."
Specific responses (from the subcommittee) to arguments:
Argument - the definition of "militia" as used in the Constitution:
"When the framers referred to the equivalent of our National Guard,
they uniformly used the term 'select militia' and distinguished
this from 'militia'. Indeed, the debates over the Constitution
constantly referred to organized militia units as a threat to
freedom...and stressed that such organized units did not constitute,
and indeed were philosophically opposed to, the concept of militia."
Agrument - the Supreme Court supports the notion of Organized militia,
not individual militia:
In the DRED SCOTT decision, the Court said that to allow blacks to
be considered citizens would "give them full liberty of speech...
to hold public meetings...and to keep and carry arms wherever
they went."
In US VS. MILLER, the only case according to the subcommittee that
the Supreme Court has actually dealt with the meaning of the Second
Amendment (as opposed to the interpretation of Federal vs. State
jurisdictions, etc.), "The Supreme Court reversed on procedural
grounds...The court's statement that all constitutional sources,
{quoting from the court, now - AR} 'show plainly enough that the
militial comprised all males physically capable of acting in concert
for the common defense...these men were expected to appear bearing
arms supplied by themselves and of the kind in common use at the
time,' suggests that at the very least private ownership by a
person capable of self-defense and using an ordinary privately
owned firearm must be protected by the Second Amendment...The
hearing was to be on the nature of the firearm, not on the nature
of its use; nor is there a single suggestion that National Guard
status is relevant to the case."
The subcommittee cites 21 state cases in the appendix which uphold
the individual right to keep and bear arms.
There is an additional argument re Federal vs State rights and limitations,
but I couldn't figure out how to condense it. Send your address, and I'll
xerox you a copy.
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There it is. I DO NOT maintain that this negates any and all arguments
about gun-control. I ONLY post this to help interested people understand
the historical framework under which the Second Amendment was written, and
to counter some of the specious interpretation posted to the net so far.
Adrienne Regard