My Way:
Second amendment sloganeering and bumper stickers. This is dead simple a) The 2nd amendment is not unambiguous, plus there remains controversy over the precise grammar that impacts its intentions, b) the Constitution by definition changes every time the Supreme Court makes a ruling, and there have been such rulings and most importantly c) if any action taken by the Government is unconstitutional—then that is why we have the Supreme Court in the first place—so what the hell are they worried about. Like all things Stupidparty—it is simplistic sloganeering to rile up an uninformed fearful base.
Brian’s Way:
By Brian E. Frydenborg LinkedIn, Facebook, and Twitter (you can follow me there at @bfry1981)
The individual right to keep and bear arms as part of the state militia is guaranteed by the Second Amendment. What does that have to do with today’s citizenry? Nothing.
Perhaps the most depressing thing about the gun-control debate in the United States, apart from the continuous stream of deaths that still have yet to merit not even a modestly serious policy response, is that for as many times as the Second Amendment to the U.S. Constitution—part of what is termed the Bill of Rights—is invoked, nearly as many times there is a total lack of historical context of that very amendment presented alongside. Into this vacuum all sorts of creative reasoning has flooded, to such a degree that the highest law courts and judges of the land, too, have fallen to such erroneous thinking that ignores the history and tradition from which the Second Amendment emerged.
J. G. A. Pocock correctly notes that “[i]t is notorious that American culture is haunted by myths, many of which arise out of the attempt to escape history and then regenerate it,” and the Second Amendment is a textbook example of this phenomenon.
J. G. A. Pocock correctly notes that “[i]t is notorious that American culture is haunted by myths, many of which arise out of the attempt to escape history and then regenerate it,” and the Second Amendment is a textbook example of this phenomenon. The roots of this amendment go back to Saxon culture in the era of the Roman Empire. When Rome decided to withdraw from its provinces in the British Isles early in the fifth-century to consolidate its withering power in the rest of the West, the Saxons, Angles, (from which England got its name) and other Germanic tribes eventually filled the power vacuum the Romans left. The most visible presence of Roman governmental authority had been the army, the professional, standing Roman legions that had been stationed in Britain. Security after their withdrawal became nonexistent, but the Saxons, after a bloody conquest, imported a tradition of theirs from mainland Europe with them: that of the fyrd, as the U.S. Army’s official history explains. In this system, all adult males had to engage in military training, and, in times of war, would be expected to fight. This tradition continued throughout English history. The English freemen, like the Saxons before him, were given the right to bear arms as part of a contract in which their responsibility was to train in their local militia and defend the realm when necessary. This part is important: there is no tradition in English history of the local peasants having an institutionalized right to keep and bear arms without the responsibility of being part of an organized militia which would act to defend the land when needed; the right to bear arms does not exist without the militia, and the militia does not exist without the peasants being trained for and participating in a militia.
There is no tradition in English history of the local peasants having an institutionalized right to keep and bear arms without the responsibility of being part of an organized militia which would act to defend the land when needed; the right to bear arms does not exist without the militia, and the militia does not exist without the peasants being trained for and participating in a militia.
Fast forward centuries later to the establishment of English colonies in the New World, in particular the colonies that would form the United States of America’s original Thirteen. Most of these colonies were founded by the English, and those that were not came under English rule long before the American Revolution. The state militias were merely the continuance of the colonial militias after America broke off from Britain by declaration in 1776, by treaty in 1783. One has to think of the massive technological changes that occurred between 1791, when the Second Amendment was added to the Constitution, and today, and then it should be obvious that the same system is not in place. For one thing, back then almost the whole population lived in the countryside, not cities, where there were lots of dangerous animals and pesky French, Spanish, and British troops prowling around, plus many Native Americans tribes that did not like their land being taken from them. This militia system made perfect sense in such a physical environment for almost all Americans except for a tiny minority in coastal cities lived in rural areas and on the frontier. It also made sense especially when one considers that many of the founders had a philosophical opposition to a large standing army, keeping in mind the warlords of republican Rome and the more recent example of Oliver Cromwell’s New Model Army which had not helped the brief experiment of England with republicanism in the mid-seventeenth-century. Theoretically, an army composed of state militias, tied to their localities, would be harder for a tyrant manipulate. Yes, some units of the Massachusetts colonial militia have survived in some form as they morphed, along with other units, into the U.S. National Guard, the direct descendant of the state militia system referenced in the Second Amendment. Yes, all adult males do register for the draft via the Selective Service. But registration is generally all that is required for adult males except for a few drastic eras in U.S. history. And the average men today do not regularly train, and are not expected to keep and bear arms of their own. Even those in the military, Guard or otherwise, do not own the weapons they will use in combat and cannot keep them in their homes. Even just by 1865, the state militia system, which evolved dramatically during the course of the four years of the Civil War, bore little resemblance to the system referenced in the Constitution, and after the first two decades of the twentieth-century, only a few vestiges of that system nominally existed. From WWI forward through the Vietnam War, the federal government brought in, trained, and equipped the vast majority of troops that fought, not the National Guard, which today is only a small part of the overall U.S. Military. The average adult man is not the only one, then, in the U.S. that has nothing to do with the National Guard; the average U.S. man in a military uniform has nothing to do with the Guard either and is part of a force structure that is only supplemented by the Guard. That should not, of course to discount the brave service of Guard units that served in Afghanistan and Iraq, or those that helped after Hurricanes Katrina and Sandy. But the U.S. Military today is overwhelmingly a professional, fully federalized, standing army. Even the Guard itself is composed of units structured in such a way that they bear virtually no resemblance in practice (even if they may in spirit) to the state militias referenced in the Second Amendment when it was written in 1789 and adopted in 1791.
As far as the arms that need to be “kept” and “borne,” if you’re in the Guard today you cannot bring a personal firearm you keep and own as an individual to bear while on active Guard duty. No, the weapons that will be borne into battle are owned by the U.S. Government, are kept on base, and not taken home or owned by the Guardsmen. Effectively, modern Guard practice destroys the traditional relationship between keeping and bearing arms and wholly separates those acts from service in the militia. In the end, all three major components of the Second Amendment—keeping, bearing, and serving in the militia—are transformed by modern Guard practice into relics from a past era that do not function or work together at all in the way they did in the late 1700s. Both its rights and the duties might still exist on paper, but they do not exist at all in practice and they apply to no one since no one keeps their own arms to bear in the capital M “Militia.”
The year after the Second Amendment was adopted as part of the Bill of Rights, Congress passed a law requiring all fit adult males to enroll in the militias, with each man required to provide his own basic equipment…Within months of its adoption by the states, the right to keep and bear arms as part of the militia allowed by the Second Amendment was coupled with the individual’s responsibility to enroll in the militia and to provide his own basic equipment, including his weapon, for his training and service in the militia.
The year after the Second Amendment was adopted as part of the Bill of Rights,Congress passed a law requiring all fit adult males to enroll in the militias, with each man required to provide his own basic equipment. Though enforcement of this law would prove very problematic, it is very important to realize how important the passage of this law is to understanding Congress’s conceptualization of the Second Amendment as Congress passed at the time it was passed: within months of its adoption by the states, the right to keep and bear arms as part of the militia allowed by the Second Amendment was coupled with the individual’s responsibility to enroll in the militia and to provide his own basic equipment, including his weapon, for his training and service in the militia. The point is this: the right does not exist without the responsibility. This goes back to the Saxons and early English, where this tradition began. This is not merely conjecture: the entire concept of citizenship in the late eighteenth-century minds of the Founding Fathers, almost universally educated in the Greek and Roman classics, was the same of republican Rome, Founding Fathers’ inspirationfor a republican government of checks and balances and divided government from which they created the American government and U.S. Constitution. In the ancient Roman republic, the Roman concepts of a right and citizenship are counterbalanced by the concepts of responsibility and duty: a right as a citizen is enjoyed because the responsibility of duty is accepted. And in today’s system, the responsibility to keep and bear arms in order to be of service to the militia is not a responsibility for all fit adult makes; in fact, it’s the responsibility of virtually no one.
Today, the Second Amendment is still on the books. It 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.” It is a clear reference to an existing right, longstanding in English tradition going back to fyrd and the individual’s roles, responsibilities, and rights in reference to the militia. Does that mean that there is not a right to bear arms for an individual person, who today is almost certainly not in a capital M “Militia?” That is an interesting question and an interesting debate. The Second Amendment clearly references an absolute right, one that is part of a clear and explicit pre-existing tradition going back to Late Antiquity. The mainly English colonists-turned Americans would have generally understood this and the reading of the Second Amendment to them would have been clear, especially to the educated Founding Fathers, many of them lawyers who would have had to have known about English law, the legalities of this tradition of militia service, and the rights and responsibilities this service entailed. They would also have been familiar with Lord William Blackstone‘s landmark Commentaries on the Laws of England, one of the great legal treatises in the history of the English-speaking world; published in four volumes from 1765-1769 in decade before the American Revolution, it was well known in its day and was the main source of knowledge on English law on the American continent both in the years before and for many decades after the American Revolution (one American printing of the fourth volume was pre-ordered by sixteen of the fifty-six future signers of the Declaration of Independence, including John Adams, and by the father of John Marshall, one of the great Supreme Court justices of early United States history. In the very first part of this massive work, Lord Blackstone made clear that there were two types of rights for Englishmen in English common law: absolute rights and auxiliary rights, the latter subject to limits and regulation, and the individual right to bear arms in self-defense was explained as one of the key auxiliary rights of Englishmen:
THE fifth and laft auxiliary right of the fubject, that I fhall at prefent mention, is that of having arms for their defence, fuitable to their condition and degree, and fuch as are allowed by law. Which is alfo declared by the fame ftatute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due reftrictions, of the natural right of refiftance and felf-prefervation, when the fanctions of fociety and laws are found infufficient to reftrain the violence of oppreffion.
And, again, this is not some new concept imposed upon English law by Blackstone; it is simply him putting into writing what had already been understood for generations after generation. Thus, whether on one side of the Atlantic or the other, Englishmen in the era of Blackstone—the same era as the American Revolution and the drafting of the Constitution, Bill of Rights, and the Second Amendment—would have understood that there were two sets of rights related to the keeping and bearing of arms: an absolute right as part of the ancient English militia tradition and coupled with the responsibility of militia service, and a second auxiliary personal right to bear arms for self-defense but subject to various conditions and regulations. But in the context of today’s society, the debate about an individual right to bear arms is one about which the Second Amendment, and the Constitution, is silent, as they only discuss the absolute militia right, not the auxiliary personal right. Ironically, those “militia” groups which are such religious believers in their concept of the Second Amendment are not even referenced in it since they are not the actual “well regulated Militia” referenced in it. Sure, groups like the NRA and the Republican Party are among the uninformed, and the Supreme Court has recently ruled in favor of a very different interpretation of this. But this is the same body that ruled free African-American men were not U.S. citizens just before the Civil War. Legal does not have to mean something is right in the sense of being correct (just think about slavery), and the rulings of ideologically driven justices may be law but are hardly accurate when they wholly ignore the history and tradition described above. It’s time to leave the Second Amendment out of the current policy debate as it is, clearly, irrelevant, despite modern distortions and inventions.
Which Russian leader said that America could never be taken by an outside force not because of its military but because the invaders would find a gun behind every blade of grass.Most American men have been taught gun safety and how to use them when needed. Look to Montana where most of their citizens practice concealed carry. One of the lowest crime rates. Take guns away from law abiding citizens then your giving the criminals the upper hand. I once saw a cartoon showing a con sitting in his cell writing his congress person, pleading for gun control because he wouldn’t be where he was today if they had gun control.. Criminals think twice about targeting a armed person. Who would the choose to mug and rob a unarmed person or someone with a 357 on his hip.
You say times have changed. That there are no more Indians. British, French. Spanish trying to run our lived. Your right but they have been replaced by the crypts and bloods and the many other street gangs running amuck in our cities..
Would it be possible to reply to the actual blog? And yes which Russian leader would have been that stupid to say that? The Czar? Any one can invent an imaginary blog and then respond to it using your own pet infantile themes – but if your intellect were to journey just 100 yards forward you would find yourself falling off your stunningly short intellectual horizon. But if you are interested in statistics -which surely you are not -I will be kind enough to provide them. More Guns = less safe. That is a fact as I will now prove: https://stupidpartyland.com/1/post/2015/05/attacking-the-heart-of-gundamentalism-its-rock-star-pseudo-mathmatician.html
and https://stupidpartyland.com/1/post/2015/03/give-me-liberty-or-give-me-death-from-stupidparty-circular-logic-and-baseless-dogma.html Now we will await the impossible -a response that has substance and is indicative of intellect.
You would get destroyed by Alex Jones. It was a Japanese Commander who stated, “a ground invasion of America would never be successful due to the fact that there would be a gun behind every blade of grass.”
You sound intelligent with your writing but unfortunately you’ve missed the big picture. The problem with the violence in the US is the fact that over 30% of the citizens are prescribed psychotropic drugs that say right on the bottle “may cause extreme violence.” No other way around it, you can compare us to England all you want but we are not England! Our founding fathers would be turning in their graves if they heard your false interpretation and comments regarding an ammendment to a constitution that designed to be the last protection of the people. Yes, the world has changed, but that doesn’t mean we should continue down the path of neoconservatism and let ourselves be ruled by the police state. The moment our second amendment is taken, that will leave the first amendment un protected. I’d imagine you were brainwashed by the same elitist propaganda in which Adolf Hitler and the Nazi party convinced their people that taking their way to protect themselves (firearms) against any sorts of tyranny was a positive move.
The United States has military bases in over 700 countries. Our government, media, schools, universities, and medical systems have been hijacked from the American people. Hijacked by the same idealist military industrial complex who empowered and enabled world war II.
History has proven to us that whenever a population loses the right of the citizens to protect themselves, governments cant resist “population control.” Is that what you want? It seems that you’ve become feminized entirely, so feminized to the point of you not being able to see and understand why your fellow countrymen would fight and die to defend a constitution which was designed to enable us to defend ourselves from tyranny!!
I’m positive your fancy language and charisma would be effective as a tool against your masters who’ve got your mind enslaved by your emotions. Rise above and your consciousness will show you the truth. Put your energy into fighting against the tyranny vs. championing tyranny. Point out real issues like the psychotropic drug violence problem. If you take guns, they’ll use knives, take knives they’ll use cars, take cars they’ll use rocks/stones like in countries where there are no guns.
You have said nothing to address the issues in the blog -it sounds like you just read the headline -which sort of explains your shallow comprehension. You have said nothing that justifies America’s infantile gun culture -in fact if you actually thought about your rant -you would realize that you have undercut your own case for anarchy. The US would indeed be quite clever to have “military bases in 700 countries.” In the midst of your rant you accidentally make some interesting points about the military industrial complex -but your world view is so confused that you are unable to really figure out who is pulling the strings. You know something is wrong, but do not understand what. That is why I am here. The funny thing is that your strategy would to lead us Mogadishu -which is not smart -while I have a strategy that you would also agree with -the only difference being that my strategy is not stupid and not based on ignorance. Please read on: https://stupidpartyland.com/support-the-smartparty-agenda
As I already pointed out, this was a misattribution to Admiral Yamamoto. And Alex Jones’ extreme paranoia, hyperbole, and theatrics do not destroy anyone/anything in a reasonable discussion, except himself and his own credibility. Alex Jones has no academic background to make his opinion even worth considering on such an issue.
I couldnt agree more? Perfect…..
And that goof ball who wrote all that B.S. was gonna keep.it sinple?? What a confused person that Is.?? Those types scare me that there out there actually believing what they say?
I think idiots with guns are scarier -and I can prove that the more guns society has, the less safe we all are. That is not to say that Guns should be taken away and are not a legitimate hobby and in some parts of the Country might serve a practical purpose – the biggest danger being to the gun owners -since 60% of Gun deaths are suicides -many such suicides (that tend to be spontaneous) could be avoided by having a waiting period. What I do say however is that the NRA is an odious organisation, it is a bigoted organisation, it is not a democratic organisation and its members ought to be ashamed, need to be shamed -by having the facts pointed out to them.
Actually sir, the “blade of grass” quote is a misquote attributed to Japan’s Admiral Yamamoto and has never been associated with a Russian. It likely came from the files of U.S. Army historian Gordon W. Prange. https://www.linkedin.com/today/posts/brianfrydenborg
That’s what the Police are supposed to be doing,stopping Gang violence. Maybe if they tried stopping gun related crime instead of creating it themselves, we might not have the problems we have today.
In my considered judgment and opinion, The Stupid Party blog is the product of stupid and ignorant mind(s). The author(s) and nearly all commentators here do not know the law!
Americans, with few exceptions, do not know that 1) they are now, 17-45 years of age, male and female, or 2) will become, or 3) have been, members of the Federal Militia and their state Militia! See 10 U.S.Code 311. State militias may be indexed in state statutes under “National Guard”.
The Organized Militia is the National and state Guards. The Unorganized Militia is nearly all of the rest of us. The exceptions are the Active Military, the Organized Militia, Governors, Judges, Harbor Pilots, the insane and other disabled persons, some others, and felons. Military Reservists not on active duty are members of the Militia.
The members of the Unorganized Militia are authorized to acquire, keep, and bear arms, at their own expense.
The primary purpose of the Militia is to defend the citizens against tyranny by our government. WHAT! Remember Lexington and Concord. Remember King George III!
The militias may be utilized for other purposes, such as repelling invaders, maintaining order, putting down civil disorder, preventing, minimizing and cleaning up after natural disasters. And supporting and reinforcing our active military, as in Kuwait, the First Gulf War, and subsequent armed conflicts.
I expect they will be involved, if and when, as I expect, the long-existing “sleeper cells” of jihadists in the U..S. receive orders to activate and attack.
I expect the great majority of Muslims in America are loyal, and will assist us in defeating the jihadists.
I am especially concerned about the Sunni Salafists, like those who attacked us on 9/11/2001. I estimate that only about 5% of the mosques have dangerous members, and only about a dozen or so are Salafist Mosques with Salafist Imams. I am not an expert.
I do consider Ismaili Muslims and Ahmadiyya Community Muslims to be wholly “American”, and with few exceptions, they look and act like the rest of us. The Ismaili are unique, in having a recognized leader. The leader is a descendant of the Prophet, the Harvard-educated, Aga Khan.
(Note, I use “state” to include districts (D.C.), territories, commonwealths, and possessions. I believe all except possessions have militias.)
All persons have the natural right of self defense (and defense of others such as family members.) And the right to use weapons. (For women, firearms are equalizers.)
I expect I may have erred on some facts. Corrections will be appreciated.
You think you are so brilliant -more brilliant than any and every commentator -when all you have done is state the obvious -something a five year could do. First you create a false flag -an imagined opponent and then try and presume brilliance my knocking that imagined enemy down. No one is suggesting that Guns in general should be taken away. No one is saying the Constitution is unconstitutional. The Constitution is a per the latest supreme court adjustments and clarifications.
But of course you are over simplyfying as you chose the ignore the following Militia law
1903 Militia Code:
“332.USE OF MILITIA AND ARMED FORCES TO ENFORCE FEDERAL AUTHORITY
Whenever the President considers that unlawful obstructions,
combinations, or assemblages, or rebellion against the authority
of the United States make it impracticable to enforce the laws
of the United States in any State or Territory by the ordinary
course of judicial proceedings, he may call into Federal
service such of the militia of any State, and use such of the
armed forces, as he considers necessary to enforce those laws
or to suppress the insurrection.”
Thus the legal facts suggest to me that we have gun rights because we are all involuntary reserve government security officers under the law. We report to the Commander-in-Chief if he calls us. We just haven’t been “activated” since we were established in the 1903 Militia Act. We are a “sleeping” security force. Now might be the time to wake us up and test a militia system designed for the problems of 21st century of America, not the 17th century and 19th century America.
All militia groups who have risen up to challenge authority have either been declared illegal or folded into the state guards and those who were particularly obnoxious were put down (i.e. Waco Texas 1993).
1903 Militia Code:
“333.INTERFERENCE WITH STATE AND FEDERAL LAW
The President, by using the militia or the armed forces, or
both, or by any other means, shall take such measures as he
considers necessary to suppress, in a State, any insurrection,
domestic violence, unlawful combination, or conspiracy, if it–
a) so hinders the execution of the laws of that State, and
of the United States within the State, that any part or
class of its people is deprived of a right, privilege,
immunity, or protection named in the Constitution and
secured by law, and the constituted authorities of the
State are unable, fail, or refuse to protect that right,
privilege, immunity, or to give that protection; or
b) opposed or obstructs the execution of the laws of the
United States or impedes the course of justice under
these laws”
So perhaps the President should trigger this law –look at the benefits. All members of the militia will immediately gain access to the federal employee health care and retirement pool, or similar state run programs whichever is better for them. The Federal and State governments will pay as much as 2/3 of the premium for these benefits as compensation for their service, depending on how involved they are. There can also be paid opportunities. Not to mention gun safety, gun storage, showing up for musters and drills –the dream lives on.
Perhaps I am wrong about this (but it is all so silly) You state that every one (17-45) has the right to defend them selves (but ironically that would exclude the bulk of the Stupidparty base and myself, so that would be a notion that I will personally simply ignore any way) -and yes they can legally be called militia. But they can really only act in any serious scenario’s under the authority of officials on the spot who would out rank them. I am not sure that many Countries when subjected to invasion, civil disorder etc would have significantly different notions. But you are the master mind.
In spite of your unearned intellectual superiority – I do appreciate your insightful comments regarding the Muslim community—but you must also recognize that your standard Tea party bigoted militia -would not have the same views -and the only thing between armed bigots and anarchy is the fact that they must bow to the law as officiated by every one in the law enforcement community, including the army, the organised militia – who act on the authority of the Fed, State and local Government.
I can’t help but laugh at the irony of the 17-45 age group definition -and the fact that you can use that with a straight face. I simply asked myself- WTF, I can not lend a hand? What the hell were the founding fathers thinking. Then (because I am actually a thinker and not an arrogant “bot” like you) the likely answer dawned on me. Back when these civil right concepts were formed the life expectancy was 35. Today life expectancy is double that. So using the logic of the founding fathers, we should be able to defend ourselves by calling ourselves militia, until we are 90. So this rather amusingly shows a) how the constitution needs to evolve and b) it shows how stupid the Stupidparty base is in not demanding that the constitution evolve -because right now it seems that the base must stay at home. So on reflection perhaps the founding fathers were way smarter than any one has ever given them credit for.
So in the light of the above -I think you have have a clue as to what you should do with your “considered opinion.”
At the end I noted I may have erred and corrections will be appreciated. Thank you for your response.
Your courtesy, consideration and comity are appreciated.
I suggest you reread my comment carefully. It appears to me that you may have misread and/or misunderstood much of what I wrote.
I cited 10 U.S. Code 311. You set out 10 U.S. Code 313 and 314. I surmise you did not read 10 U.S. Code 311 (or 312). Here they are:
10 U.S. Code 311 Militia: composition and classes
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
10 U.S.Code 312 Militia duty: exemptions
(a) The following persons are exempt from militia duty:
(1) The Vice President.
(2) The judicial and executive officers of the United States, the several States, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
(3) Members of the armed forces, except members who are not on active duty.
(4) Customhouse clerks.
(5) Persons employed by the United States in the transmission of mail.
(6) Workmen employed in armories, arsenals, and naval shipyards of the United States.
(7) Pilots on navigable waters.
(8) Mariners in the sea service of a citizen of, or a merchant in, the United States.
(b) A person who claims exemption because of religious belief is exempt from militia duty in a combatant capacity, if the conscientious holding of that belief is established under such regulations as the President may prescribe. However, such a person is not exempt from militia duty that the President determines to be noncombatant.
Respectfully submitted, Barry Wendell Jackson, Esq.
Engineer of Political Economy
Major, USMCR(Retired)
Actually I do not normally do legalese, I am bored by the subject -that was why I put in my first option in the original blog. That first simple paragraph -is all that is important to me. You original post was arrogant -forcing me to delve into matters that I try to avoid (leave to others) plus you have not responded to my content, so really I am not going to waste my personal time in responding. I had my response vetted by a constitutional expert and I am not going to get drawn into a circular debate. The Militia argument is a fundamentally silly argument. You had your chance and you blew it. To be honest I could not give shit about 1760 – I am far more concerned about where we will be in 2060 -far more concerned about the fact that America has the most infantile Gun culture on the planet, all the arguments about possessing guns (other than it is a fun hobby, or living off the grid etc) are just silly and provably incorrect (i.e.personal security -or good guys with Guns is utter garbage) , support for the NRA is contemptible. As I said you made some really interesting and intelligent comments about Islam – but again the irony is sort of stunning -only about 1% of Stupidparty disciples would have a clue as to what you are referring to -and that is the Militia that can go to hell -as far as I am personally concerned. The rise of Radical Islam -is due to infantile attitudes, infantile foreign policy and infantile notions of both Christianity and Islam.One God can not beat another God in debate and one idiot with a gun is made more dangerous when confronted with another idiot with a gun.
Nonsense Jack. I have spent a lifetime in the States and have never been threatened by anyone with a gun. A thief doesn’t want people around when they steal. They want to take your stereo and your computer when the house is empty. You do not want to kill some kid to protect your stuff. Use your gun money to buy some library books, some school or STEM supplies and help America.
The Constitution. What does that have to do with today’s citizenry? Nothing.
Is this a response to the content of the blog -or just the random thoughts of a blithering idiot?
Brian,
The preface (A well-regulated militia, being necessary to the security of a free state) doesn’t carry the weight you and Justice Stevens wish it to. The framers were not illiterate, had they wanted to qualify the right of the people to keep and bear arms they certainly could have. Instead they combined two independent clauses of Madison’s original draft into the final version of the amendment by rewriting the “well-regulated militia…” language as an absolute proving a rationale for the non-infringement of the right of the people to keep and bear arms.
Moreover, during the congressional debates on the Militia Act, which you point out in your OP followed shortly after ratification of the Bill of Rights, including the second amendment, Roger Sherman was quoted as follows:
Representative Sherman questioned if Congress could give an exemption to pacifists since “the state governments had (not) given out of their hands the command of the militia, or the right of declaring who should bear arms?”91 He went on to argue that it was the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack made 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. A militia existed in the United States, before the formation of the present constitution: and all that the people have granted to the general government, is the power of organizing such militia. The reason of this grant was evident; it was in order to collect the whole force of the union to a point, the better to repel foreign invasion, and the more successfully to defend themselves. (End Quote)
While Roger Sherman is just one voice, it should be noted that he sat on the committee to bring the house and senate versions of the Bill of Rights into agreement, so he ought to know what was understood by the right to bear arms.
Should one assume that the right to keep and bear arms of the second amendment had a different meaning than that right expressed elsewhere by the people of that time unless the text expressly states that it has same meaning as elsewhere? Logic tells us that the right would mean the same unless expressly limited
The early state court interpretations are no where near as narrow as you and Justice Stevens claim the right to keep and bear arms was originally understood. Ky vs. Bliss (1820) found for an extremely broad individual right. Even Aymette vs. TN, the most narrow of the early state court decisions, does not limit the right to keep and bear arms only to those in the state militia. Also, the Aymeete decision was sandwiched between two TN supreme court decisions which interpreted the right to keep and bear arms more broadly.
It is pointless to blame the NRA, the Heller majority, or anyone else around today for the broad individual right interpretation as that interpretation existed from the start. And while more narrow interpretations also existed (such as the political right interpretation in Aymette) it would be odd if we interpreted any part of the Bill of Rights by the most narrow interpretation known, and odder still if we interpreted a part of the Bill of Rights by an even more narrow interpretation than given to it at the start. .
Lastly James Wilson (founding father, early supreme court justice) had a slightly different take on the right to bear arms and its Saxon roots. He argued that the right to bear arms of the PA constitution included defense of one’s self as well as defense of the state,
“With regard to the first, 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 recognized in the constitution of Pennsylvania. “The right of the citizens to bear arms in the defense 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.”
The selective history offered of late by Brian and other deniers of the broad individual right to keep and bear arms is in direct conflict with false history offered earlier by the 9th circuit in Silveira. That court held that the right to keep and bear arms of the second amendment was purely a collective right and there was no individual right at all. The Silveira court rejected out of hand the limited individual right embraced by the Heller minority.
The Silveira decision itself was an attempt to put a fig leaf on an earlier decision (Hickman) of the 9th circuit in which that court held the right of the people to keep and bear arms was a state right. Hickman was so poorly reasoned, and so plainly at odds with the text and history of the amendment, that the 9th circuit revised that earlier decision in Silveira without an en banc rehearing.
In the last two decades the deniers have variously insisted that the right to keep and bear arms was a State’s Right, a Collective Right of the people, and most recently a right of individuals but only when in service of a state militia. That these claims contradict each other apparently poses no issue for the sophisticated class. Moreover, on each occasion we were assured by “academics” that each decision adhered to the one true interpretation of the right to keep and bear arms
Brains response: As the author, I would say that the Second Amendment matters more in terms of what was intended by when it was ratified and written than what later Supreme Courts did to alter its clear original meaning. The Supreme Court has often, though not always, shown itself to be just as political body as Congress, though its justices get to dress up their politics and partisanship in the decorum of black robes and the impression of impartiality. In reality, the Supreme Court has gotten many things wrong for much of its history, especially on matters of race and guns. Frankly, I don’t think that Supreme Court case history is particularly valid to understanding the proper meaning of the Second Amendment; as I demonstrated in my piece, the militia tradition going back to the Saxon and post-Roman Anglo-Saxon fyrd–and this coming from the U.S. Army’s official history–was always understood as the right of keeping and bearing arms tied to the responsibility of serving in the local militia; this was the case all throughout English history, up to and through the founding of the English colonies and their break with the redefined United Kingdon, dominated by England and English Common Law. Nothing changed to make this an absolute right of an individual divorced from this responsibility of serving in the militia. Whether the disgrace of the U.S. v Cruikshank ruling in 1875 or any of Scalia’s & Co’s more fanciful recent rulings, none of this judicial case history erases or alters these very basic facts about the Second Amendment and the preexisting tradition it clearly references. Sorry to burst your fictional bubble of alternative history from an alternative universe but those are the facts. Whether or not any individual right to keep and bear arms apart from militia participation exists has nothing to do with the Second Amendment, period, whatever modern reinventions have occurred.
Brian,
Your claims do not match the facts. Your reading of the right to keep and bear arms is much narrower than the right o bear arms as understood and spoken of by Roger Sherman in Congress and of James Wilson commenting on the PA constitution right to bear arms, which were within a few years of the ratification of the federal Bill of Rights. The Bliss vs KY decision was just 30 years after, and Aymette some 50 years after, but there was not a state supreme court decision that held your view until the early 1900s.
While the Bill of Rights was still being debated in Congress, Tenche Coxe described what became the second amendment: “Whereas civil-rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as 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 by the article in their right to keep and bear their private arms.”
Coxe apparently did not get your memo, as he did not read “bear arms” in the phrase “the right of the people to keep and bear arms” as an idiom. He read the right as an individual right, though with the public purpose of allowing the people (collective noun, plural sense) to keep and bear their private arms so as to be able to resist tyranny in government.
If there was a change from “only in service of state militia” ,to a broader right, when do you suppose that change occurred? Before the Bill of Rights was proposed in Congress, the PA Minority called for an “unambiguous” (SIlveira) individual right, during the debates in Congress Coxe’s comments were published, and shortly after we have Roger Sherman and James Wilson commenting on what they perceived the right to bear arms to mean. So it is undeniable that the broad individual right view existed and was publically voiced when the Bill of Rights was conceived and ratified.
If the “only in service of the state militia” were the predominant view in 1789/1790, one should expect that most, or at least a few, of the early state court decisions would support that view. How do you explain that the timeline is exactly reversed?
Mika- you can pick individuals’ quote that are selective and hardly representative, you can cite state supreme court decisions which are irrelevant, but that does not change the overwhelming body of knowledge and the historical consensus among academics and historians on this issue. As I already mentioned, later inventions of the court that distorted the meaning are irrelevant to the intended meaning at the time, and I can promise you that the Congress when they adopted the Bill of Rights was not looking to dramatically redefine a specifically references preesxisting tradition that has been in place since Late Antiquity. A second individual right to bear arms that is not absolute and formally codifies is not mutually exclusive but it is not at all the subject of the Second Amendment, despite your lack of knowledge and history on the subject. We can find many examples of courts engaging in intellectual gymnastics and I give you credit that you were able to find the ones supportive of your misconceptions but that does not make their mistakes or your misconceptions any more valid than Dredd Scott or Citizens United. We do, unfortunately, have this cabal on the Supreme Court that have created this situation where now that opinion is given legal weight, which is why presidential elections and the Supreme Court appointments are so important.
Brian,
I would be happy to read any and all quotes from the founders, early commentators, or early court cases voicing your “only in service of the state militia”.version of the second amendment But they are apparently far harder to find than quotes supporting the broad individual right.
You cannot blame me for not finding these quotes as the Heller dissent could not find them either,
“I would say that the Second Amendment matters more in terms of what was intended by when it was ratified and written than what later Supreme Courts did to alter its clear original meaning.”
Um. Isn’t that typically a highly conservative view? The idea that the constitution is a dead document, rather than one where the meaning can evolve and change, is what the court conservatives use to justify their refusal to adapt. If the constitution means only exactly what it says, and nothing more, then we’d undo 60 years of progress.
Excellent point but you are responding to a comment made by Brian (not me) and it looks like his comment was focused on one particular ruling. I am sure he will respond in his own time-but in the meantime I guess he might say that if a ruling creates ambiguity or confusion, then one needs to go back to source and try and get back into the heads of such source, to figure out the intent.
Mike-
Just to be clear, the Second 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.”
So, to be clear, the first thing raised is the “well regulated Militia;” there is a reason this is in the same amendment that deals with the right to bear arms, because, as I pointed out, it’s based on a clear English tradition going back to the post-Roman era in the British Isles. This tradition was understood universally on both sides of the Atlantic by all Englishmen in 1775, and nothing changed dramatically in the culture as far as this fyrd-based militia from the post-Roman era through the era of the writing and adoption of our Constitution and the Bill of Rights (including the Second Amendment) in the late 1780s and early 1790s. There was absolutely no confusion about this tradition and the rights of keeping and bearing arms being linked to the responsibility of serving in the militia. This was a constant over the well over a millennium this tradition in place from Late Antiquity through the entirety of the eighteenth century, the end of which we are discussing, and beyond for some time. This is why the language of the Second Amendment was phrased to say “the right of the people to keep and bear Arms;” it was not a new right that was being enumerated, it was a specific preexisting right–THE RIGHT–and the reason it made total sense to include it in the same breath as the discussion of “the Militia,” together forming the Second Amendment in its totality,” is because everyone at the time understood this context and there was absolutely no confusion about this at the time, as nearly every adult male–the entirety of the voting class at the time–served in the colonial/early American militia system. To quote from my own article: “within months of [the Bill of Rights] adoption by the states, the right to keep and bear arms as part of the militia allowed by the Second Amendment was coupled with the individual’s responsibility to enroll in the militia and to provide his own basic equipment, including his weapon, for his training and service in the militia. The point is this: the right does not exist without the responsibility.”
Whatever subsequent judicial activists on the Supreme Court ruled for or against does not change this basic, undisputed, clear history or the context in which the Second Amendment was written, passed, and adopted. State courts could be a huge mess, as well, and their rulings have no legal authority or effect on the federal Constitution.
As for Mr. Sherman’s quote, there are a few things to be clear about here: I do not dispute an individual’s right to keep or bear arms in self-defense, but if you read Sherman, he is talking about several rights: a common-sense individual right to keep and bear arms, and a collective and state right to organize a militia comprised of the people. The Second Amendment is clearly talking about the militia and the right of “the people” in their collective capacity to serve in and organize a militia and keep/bear arms in this context. There are other rights in the Bill of Rights that are discussed as individual rights, and others discussed in the context of being more of a collective right. Sherman does not make the claim that the the Second Amendment itself details any individual right not subject further regulation or abridgement. There is nothing in his quote in which anyone can claim he is saying the Second Amendment speaks specifically to an individual rights, and there are plenty of rights that people would discuss at the time (to get married, to travel, to open a business) that would not have needed a specific amendment or clause in the Constitution but would still be understood to be informally codified yet very present rights. Thus, Sherman is both discussing the Second Amendment codified rights not subject to further regulation and a non-codified individual right to bear arms that not exempt from regulation, just as marriage and opening a business is subject to regulation.
It is only in the modern era with the gymnastic contortions of Scalia and others that there is now an on-the-books understanding of the Second Amendment as preserving an individual right divorced from the militia, quite a feat of judicial activism indeed and with no historical or contextual basis in the era from which the Second Amendment sprang..
Brian,
You said “if you read Sherman, he is talking about several rights: a common-sense individual right to keep and bear arms, and a collective and state right to organize a militia comprised of the people. The Second Amendment is clearly talking about the militia and the right of “the people” in their collective capacity to serve in and organize a militia and keep/bear arms in this context”
Yes, Sherman is talking about what we call today the broad individual right to bear arms and was making an argument regarding the rights the state still possess (vis-à-vis the federal government) by way of analogy to that broad individual right to defend self, property and one’s state. Since Sherman sat on the committee to hammer out differences between the Senate and House versions of the proposed amendments, he ought to have had a good idea what was the general consensus on the meaning of the right of the people to keep and bear arms. .
Again, should one assume that the right to keep and bear arms of the second amendment had a different meaning than that right expressed elsewhere by the people of that time unless the text expressly states that it has same meaning as elsewhere? Logic tells us that the right would mean the same unless expressly limited.
Lastly, you have not supported your assertions about what the second amendment is clearly talking about. Tenche Coxe’s commentary describes a right that is not so limited, does not treat “bear arms” as an idiom, and he is speaking directly to what became the second amendment. Others in that time frame spoke of the right to be bear arms in much broader language than your interpretation, moreover there is no qualifier on the right of the people to keep and bear arms in the actual text. The “when is service of the state militia” is an assumption not supported by the text.
We must remember we are talking about a provision of the Bill of Rights, and to read it more narrowly than the text supports defeats the stated purpose of the Bill of Rights.
Just because Sherman sat on the Committee does not mean he was conflating and equating two very separate though related things. Absolutely nothing has been presented by that specifically has Sherman stating that the individual right to bear arms and the Second Amendment rights and responsibilities are the same thing. He is making a comparison and talking about their relationship, but he in no way claims they are on in the same. The distinctions are subtle, but those trying to claim he is saying that he is making a clear case that these rights are on in the same have no evidence in the quote or from these traditions’ long history that say otherwise. This very same distinction–between a sacred and absolute right to keep and bear arms as part of a militia and a less formal, subject-to-limits-and-regulation-right for individuals to keep and bear arms, was made just before the American Revolution by Lord Blackstone in his landmark widely read and cited commentaries on English law (one of the great commentaries on law in all of the English-speaking world’s history) http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp His interpretation would very much have been in the minds of the Founders as many were lawyers who would have been required to be familiar with his work. Sorry if this does not conform to our preexisting notion but it’s the truth.
However Sherman, as well as James Wilson, did not see them as separate but related rights. They saw the right to defend one’s self as one facet of the right to bear arms, which also included the right to defend the state.
Boring
Mike, as I made the point, yes,they are related rights, but still distinct and not operating under the same constraints. I don’t understand how this is so difficult to understand. OF COURSE they are related. Freedom of religious worship and where Churches can be zoned are also related, but distinct issues, for example…
Brian,
Please, “separate” and “distinct” mean the same thing.
Both Sherman and Wilson viewed self defense and defense of the state as facets of the same right -not separate or distinct rights.
You are showing a distinct lack of knowledge of the English language and this is what separates your from Brian.
Well researched. You should however leave out the part about the living constitution in the beginning if you are then to insult the justices that upheld the personal aspect of the text toward the end. It changes the character of the article and makes it seem lazy. Otherwise great argument, except I will not be persuaded. You are correct that times have changed but you leave out the other side of the coin where Mao and others begin the cleansing by first removing the weapons, and also where the Supreme Court ruled that the police are not obligated to protect an individual. Not to mention all the politicians fighting for gun control have armed security. I for one am glad they put the text in as they did and that the modern court upheld it because when you need help in seconds a firearm can be right there to help (hopefully never needed) but the police are likely to be minutes away. And yes, an armed society is a polite society. Crooks aren’t dumb. They like soft targets. They want to go home to their families too you know. Please don’t bother replying with expectations that I might respond. Good day.
I have no time for people who bring up Mao or Hitler to support American Gun culture. Mao and Hitler would never have been slowed down by a bunch of “freedom loving” gundamentalists. They succeeded by turning society against it self -by one group spying on the other – and this is actually what the Oligarchs, the fascists in waiting are beginning to achieve in the USA.The world you imagine of private citizens defending them selves from the oppression that they voted for, will simply result in militia’s -America becoming Mogadishu. This is a moronic vision, a moronic rationalization for an infantile Gun culture. Before revising 20th Century history with your own fantasies why don’t you secure the backing of any Jewish Groups -who feel that the holocaust could have been avoided, if they just had some guns in the basement, or find any Chinese group who lived through the Mao era and ask them if owning guns would have helped achieve anything other than the occasional massacres -to teach every gun owner a lesson. Learning the wrong lessons from History—Deadly.
We may not have Mao or Hitler, but we have Obama! So what the hell is the difference! We know what his position is on these issues, we know he continues to deny a working relationship with Congress and he wants to take away our freedoms one of which is the right to bear arms! Obama aka Barry Satero is a Muslim who gave Iran nuclear weapons! As long as America is armed the Obama regime will eventually fall away! The next “terrorist we have to worry about is Hillary! “Hillary Lied, Four Americans Died!
Here we have a real live Stupidparty Fox loving idiotic bigot. It is because of people like Bob Militello that critical thinkers need to get on the case, reach out to this persons tribe and arrange an intervention. We can sit passively by and allow the Bob Militello’s of this would to spread the bile and stupidity or we can all reveal to the world who they truly are. So let us shine the spotlight on Bob Militello. Now I will illustrate a) who his peer group is and b) explain why he is so ignorant. and C) illustrate bigotry: A) https://stupidpartyland.com/the-67 B) https://stupidpartyland.com/1/post/2015/07/why-is-the-least-trusted-news-media-the-least-trusted-news-media.html c) https://stupidpartyland.com/spigorty
As the author, I would say that the Second Amendment matters more in terms of what was intended by when it was ratified and written than what later Supreme Courts did to alter its clear original meaning. The Supreme Court has often, though not always, shown itself to be just as political body as Congress, though its justices get to dress up their politics and partisanship in the decorum of black robes and the impression of impartiality. In reality, the Supreme Court has gotten many things wrong for much of its history, especially on matters of race and guns. Frankly, I don’t think that Supreme Court case history is particularly valid to understanding the proper meaning of the Second Amendment; as I demonstrated in my piece, the militia tradition going back to the Saxon and post-Roman Anglo-Saxon fyrd–and this coming from the U.S. Army’s official history–was always understood as the right of keeping and bearing arms tied to the responsibility of serving in the local militia; this was the case all throughout English history, up to and through the founding of the English colonies and their break with the redefined United Kingdon, dominated by England and English Common Law. Nothing changed to make this an absolute right of an individual divorced from this responsibility of serving in the militia. Whether the disgrace of the U.S. v Cruikshank ruling in 1875 or any of Scalia’s & Co’s more fanciful recent rulings, none of this judicial case history erases or alters these very basic facts about the Second Amendment and the preexisting tradition it clearly references. Sorry to burst your fictional bubble of alternative history from an alternative universe but those are the facts. Whether or not any individual right to keep and bear arms apart from militia participation exists has nothing to do with the Second Amendment, period, whatever modern reinventions have occurred.
Well, yes, this blog post proves itself much smarter (but equally condescending) to bumper stickers. However, it does not address any of the valid arguments against gun control. Most importantly, when, in American law and history, has a prohibition worked? Alcohol Prohibition being the most obvious failure, followed by the War on Drugs, another abject failure. You gun control advocates should stop hoping the law can possibly eradicate gun culture. Stop fear mongering. BTW, I am an American, a legal gun owner and a liberal thinker. I just want to posit the idea that your fear based argument is wrong.
Please do not put words into my mouth -that is just dishonest, I dislike dishonesty about as much/more than stupidity. When have I ever promoted prohibition. So rather than wantonly mis reading my message, why don’t you take some time out of your unproductive day-by getting better acquainted with the facts. This article does not address gun control – but having said that, and putting aside the distracting 2nd Amendment red herrings, there simply are no arguments against some forms of Gun control. The reason is that every argument against gun control is a total myth concocted by fake Math, e.g John Lott etc, concocted by the fearful conservative brain incapable of critical thinking and the misinformation and political corruption of the Gun manufacturers. Add this to the simple fact that any politician who accepts money from the NRA is a slime-ball, because the NRA leadership are an utterly odious group who have long since hi jacked the NRA, All these statements are proven by various blogs that I have written that add flesh to the irrefutable arguments that I had made in my book. I am not trying to take peoples Guns away, it is a perfectly acceptable sport/hobby. But in the vast majority of cases -if you think it increases your personal safety – or will protect from ISIS or an invasion, the Jews from Hitler etc -you are simply delusional- being played for a fool. America has the most infantile gun culture on the planet -in the history of mankind. Never before have so many been so massively fooled by so few. You can start your research here: https://stupidpartyland.com/1/post/2015/05/attacking-the-heart-of-gundamentalism-its-rock-star-pseudo-mathmatician.html or you could down load my book for free at openbooks.com
Alcohol is today a CONTROLLED substance, not prohibited sir. You are equating the gun control with gun prohibition. This is obviously problematic as one does not equal the other.
We agree that what matters is what the second amendment meant at the time it was ratified.
But If there had been a change from “only in service of state militia” to a broader individual right, when do you suppose that change occurred?
Before the first Congress met, the PA Minority called for an “unambiguous” (see Silveira v. Lockyear, 9th circuit ) individual right. During the debates on the Bill of Rights in the first Congress Tench Coxe’s comments were published. And shortly ratification of the Bill of Rights we have Roger Sherman and James Wilson commenting on what they perceived the right to bear arms to mean. So it is undeniable that the broad individual right view existed and was voiced during the time frame when the federal Bill of Rights was proposed, debated, later ratified.
If the “only in service of the state militia” were the predominant view in 1789/1790, one should expect that most, or at least a few, of the early state court decisions would support that view. How do you explain that there was not a state supreme court decision that held your view until the early 1900s?
The states were a mess at the time the Constitution was created, that’s WHY the Constitution was created. That the state courts would automatically have a relationship or bearing to the proper understanding of the Constitution at the time is the very definition of non-sequitur
Again, are we to assume the right of the people to keep and bear arms of the second amendment is a different animal than that right expressed elsewhere by the people of that time, including in the various state constitutions? Your answer is apparently, yes.
But the early state court judges did not think so. Nor did the unanimous US supreme court in US vs Miller (citing Aymette vs TN for meaning of “Arms”). While the Miller court thought there would likely be some differences in the scope of the right guaranteed among the various state provisions, they did not think the right to keep and bear arms of the second amendment to be a different right than expressed in the state constitutions.
On one hand you are assuming the right to keep and bear arms of the second amendment is exactly the same as you read the rights of Englishmen, while on the other hand you are assuming that it does not mean the same as the right to bear arms as was actually expressed in this country at that time. That doesn’t make logical sense.
You take away the publics guns ,, or the ability to own a gun…. AND YOU GREATLY WEAKEN THE PUBLIC IN GENERAL, THE INDiVIDUAL,,, AND the country itself as a whole ,,,,, please we must never let the government get the upper hand,,,,, AFTER ALL WE ELECTED THEM ??? THATS IT JUST ELECTED THEM FOR A TERM OR SO???? LEAVE US ALONE AS A NATION OF STATE AND TOWNS ,,,,, just leave us alone!!!!!
Perhaps if you had just a tiny bit more intelligence you might actually be able to read and respond to the blog. Your observations are irrelevant.
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