The Second Amendment as an Individual Right to Keep and Bear Arms for our Defense

[SPM]

The Second Amendment as an Individual Right to Keep and Bear Arms for our defense – a new and novel interpretation, or a return to the original intent as written by James Madison and the first Congress under the Constitution of the United States?

Stephen P. McKee

-----------------------------------------------------------------------------------------------------------------------------

So the renewed push for gun control - from the usual crowd, but also from within our own community in the wake of the shooting in Las Vegas has convinced me of the need to post this again. I posted this at the last place - it has since been cleansed to ensure there will be no profit of it made in Canada. But I present it here to focus your mind on the why, the intention behind the Second Amendment - and why it must not only be preserved and defended, but restored if Men and Women are to remain Free in these United States.

Should the Mods deem it worthy, it can be Stickied.


-----------------------------------------------------------------------------------------------------------------------------

We all have heard it, the anti-Rights side demanding that we have a "conversation," that in the context of national dialogue they will explain to us why further compromise of our Rights is necessary. They intend to have it with or without us, therefore we must meet them head on, and it's best to go into a fight with a solid background to not only know our position is right, but to make that case when it comes to the arguments ahead. Those calling for this “national dialogue” about guns and the American Republic don’t realize this conversation was had, and settled, in 1789-1791.

This may be an uncomfortable truth or unacceptable for some, but our Rights are not dependent on a vote, nor are they subject to the whims or emotions of the People at large.

Many have decided they will no longer engage in any debate with authoritarians, that it always devolves into an emotional diatribe, name-calling, insults, and hardly-veiled threats. While it’s true many a debate is derailed down this road, we aren't having this discussion to convince the rabidly anti-Rights person who has made up his or her mind; we do it to convince the undecided, the fence sitter, the voter who may not "have a dog in the fight," whose mind is more open. We do that by burying emotional nonsense with fact, logic, and reason. My attempt here - to provide historical and present day proof that our position is the only reasonable position on the Right of the People to keep and bear Arms.

This is long, but thorough, and I beg your patience as I try and make the case for the Second Amendment.

It may take many posts, as I'm unsure of the character limit, as it is 19 pages long and is in need of an update, especially with the Supreme Court's refusal to hear cases of bans on particular types of Arms. I will make that happen in the coming weeks and post the updates here.

This is a work born out of an argument with a lawyer who quit after erroneously citing a source as proof of her position of a governmental monopoly on force, when that source actually supported the opposite conclusion.

If we are to pass on the Posterity a fuller measure of Liberty than that which we currently cling to, all of us must understand the Second Amendment thoroughly, we must know it’s pedigree and the supporting arguments for it. An appeal to authority (in her case, her law degree) is often used to support an interpretation that is not supported by the Constitution, statute law, or legal precedent and is easily toppled with the proper application of fact.

So, without further introduction, I present to you a solid, foundational primer on the Second Amendment of the Constitution of the United States.

 

[SPM]

The Militia Then – Constitutional Convention through the Bill Rights

Writing for the Pennsylvania Gazette in in February of 1788 while the Constitution was being debated, Tench Coxe (an outspoken Antifederalist) said the following:

“The power of the sword, say the minority..., is in the hands of Congress. My friends and countrymen, it is not so, for The powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress has no power to disarm the militia. Their swords and every terrible implement of the soldier are the birthright of Americans.2”

and

The unlimited power of the sword is not in the hands of either the federal or state governments but where, I trust in God, it will always remain, in the hands of the people.2”

Patrick Henry agrees:

“Under every government the [last] resort of the people, is an appeal to the sword; whether to defend themselves against the open attacks of a foreign enemy, or to check the insidious encroachments of domestic foes. Whenever a people ... entrust the defence of their country to a regular, standing army, composed of mercenaries, the power of that country will remain under the direction of the most wealthy citizens.3”

Even Sam Adams weighed in:

“And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless necessary for the defense of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances; or to subject the people to unreasonable searches and seizures of their persons, papers or possessions.4”

Another relevant source in determining who the militia were in the minds of the men who wrote and adopted the Second Amendment can be found in the Militia Act of 1792, passed 1 year after the ratification of the Bill of Rights.

Militia Act of 1792:

Sec. 1. Be it enacted . . . That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia . . . . 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 powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder. . . .5

Sec. 2. [Exempting the Vice President, federal judicial and executive officers, congressmen and congressional officers, custom-house officers and clerks, post-officers and postal stage drivers, ferrymen on post roads, export inspectors, pilots, merchant mariners, and people exempted under the laws of their states.]5
[/QUOTE]

So that’s who the militia were then, which provides a background for original intent. Who is the militia now?

The Militia Now – The 21st Century

According to 10 U.S. Code § 311,the militia is defined thusly:

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 6

So even if one accepts that militia is the operative word of the Amendment, then it still means all able-bodied males 17 to 45 have a Right to Arms that cannot be infringed. This is further extended to women by way of the 14th Amendment, which also binds the States to the same protections. So Heller finally got it right, for the most part.

 

[SPM]

Now, the anti-Rights crowd likes to argue that the 2nd as a check against a tyrannical government is some new, radical interpretation of the NRA and "gun nuts." That arms or ammunition must have a “sporting purpose,” or should be useful only in the taking of game. But as demonstrated by James Madison in Federalist No. 46, the actual
meaning and intent behind it's being codified in the Bill of Rights was, in no uncertain terms, to grant the People the ability to throw off the army of the federal government should the people decide to do so.

Madison explicitly states in Federalist No. 46:

“The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. 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.7”

Therein Madison, the principle author of the Constitution, many of the Federalist Papers, and the Bill of Rights presents the case of a federal government raising a standing army and turning it against the States and the People, respectively, and the rightful remedy of both being a contest of Arms with that federal army. He even goes so far as to argue that the armed population of America cannot be conquered as easily or quietly as the peoples of Europe.

This is the definitive case for the individual Right to Arms, which can be exercised collectively by the People as a check against tyranny.

I won't deny that the Founders desired we work things out through the electoral process, but I would argue that they safeguarded the Right of the people to solve it by other means if it became necessary. The clear and unambiguous protections provided to the Right to private Arms ensured the Citizenry has sufficient means as the final check against domestic armies beholden to the State intent on subjugation - and is the only true function of the Second Amendment.

"Standing armies in times of peace" are dangerous to the Rights and Liberties of the People, throughout history and in our own times. The Second Amendment was envisioned to protect the populace from the domestic dangers these armies represent, while also providing a means of resisting a foreign invader.

It is the clear reasoning upon which it was enumerated, as evidenced by how the same Right is protected in the several State constitutions of the same period.

1776 North Carolina: That the people have a right to bear arms, for the defence of the State; and, as standing armies, in 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.8

1776 Pennsylvania: 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.9

1777 Vermont: That the people have a right to bear arms for the defence of themselves and the State -- and as standing armies in 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.10

1780 Massachusetts: 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.11

1790 Pennsylvania: The right of the citizens to bear arms in defence of themselves and the State shall not be questioned.12

1792 Kentucky: That the right of the citizens to bear arms in defense of themselves and the State shall not be questioned.13

1796 Tennessee: That the freemen of this State have a right to keep and to bear arms for their common defence.14

Note which word is missing in every State constitution that addresses the Right to private arms?

Militia.

It can be found nowhere in any of the State constitutions that were the contemporaries of the federal constitution, and the inspiration behind inclusion of protection of this Right from federal infringement.

So, reading the State constitutions and the Second Amendment to the federal Constitution - in light of the “collective right” argument - begs the simple question:

Who has the Right?

The People have the Right.

Some States say “the citizens,” some “the people,” and another “freemen.” As to the purpose of protecting the Right, these examples cite defense “for themselves," some "for the State," and some "for themselves and the State," other still "for the common defense."

But nowhere is this Right confined to solely "the militia."

However, there is plenty of mention of standing armies and the danger inherent in governments who keep them in times of peace.

This was no mistake, as the Right to Keep and Bear Arms is a safeguard domestically that may also be employed against an outside threat, though the Founding generation certainly intended this tertiary function (To repel invasion), to be mostly unnecessary through their intended foreign policy.

 

[SPM]

Indeed the foreign policy of early America was strictly noninterventionist, as evidenced by Washington's Farewell Address in 1796:

"The great rule of conduct for us, in regard to foreign nations, is in extending our commercial relations, to have with them as little political connection as possible. Europe has a set of primary interests, which to us have none, or a very remote relation. Hence she must be engaged in frequent controversies the causes of which are essentially foreign to our concerns. Hence, therefore, it must be unwise in us to implicate ourselves, by artificial ties, in the ordinary vicissitudes of her politics, or the ordinary combinations and collisions of her friendships or enmities.15"

as it remained in Jefferson's Inaugural of 1801:

"About to enter, fellow citizens, on the exercise of duties which comprehend every thing dear and valuable to you, it is proper you should understand what I deem the essential principles of our government, and consequently those which ought to shape its administration. I will compress them within the narrowest compass they will bear, stating the general principle, but not all its limitations.—Equal and exact justice to all men, of whatever state or persuasion, religious or political:—peace, commerce, and honest friendship with all nations, entangling alliances with none:16"

So in the same time frame in which the Second Amendment was proposed, written, debated, changed, debated again, passed and adopted, the United States intended friendship with the world, and no alliances that would embroil us in wars in which the Republic had no real interests or stake.

Logically, given the foreign affairs policy of early America, how does the Amendment protect only the Right to Keep and Bear Arms in defense against a foreign invader alone?

Under what pretext does that make sense if the express foreign policy of the United States that codified it meant peace, commerce, and honest friendship with the world at large?

Simply stated, there is no reasonable argument that the Second is an antiquated military system meant to solely protect us from foreign invasion.

This understood intent of an armed populous is older than the Republic itself, both in English tradition that influenced the birth of these United States. This understanding continued until the rise of progressivism in the late 19th and early 20th centuries, when revisionist attitudes emerged along with the argument that Constitution itself must be a living document to be reinterpreted to hold whatever meaning was convenient to the times in which a people live. This is where the truly “radical interpretation” of the Second Amendment was born, 100 years after it was adopted. Only now, in the 21st Century have we returned to the original intent for its inclusion in the Bill of Rights.

For proof, let us look to the legal treatises, commentaries, and legal precedence from before the Founding to the present day – from Blackstone's Commentaries on the Laws of England to District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. 742 (2010), and Caetano v. Massachusetts 577 U. S. ____ (2016) to judge whether the intent of the Second Amendment was to protect an individual Right to Arms as a check against overbearing governmental authority or, as some gun control advocates claim, for hunting, target shooting, and other “sporting purposes.”

Before we get to Blackstone (this will come into play after Blackstone, with Tucker’s Annotated version) it is worth noting that the first attempt at the wholesale banning of private arms in England occurred in 1671, when Parliament enacted a statute on the taking of game that steeply raised the property qualifications on the right to hunt.

The act raised the property qualification necessary to hunt from forty pounds to one hundred pounds annual income from land, a figure so high that only the nobility, gentry, and a very few yeomen could qualify, whereas all those whose wealth came from a source other than land--such as lawyers and merchants--were forbidden to hunt. This extraordinarily high qualification divided the rural population into two very unequal groups – the vast majority of the population vs the wealthy few. Using hunting as an requisite for limiting private arms is nothing new, and only intends to concentrate arms in the hands of the powerful and well-connected few for the purpose of controlling the population at large.

Many critics would later express astonishment that:

"the legislature of a mighty empire should require one hundred [pounds] a year to shoot a poor partridge, and only forty shillings to vote for a senator!"17

The qualification to hunt was fifty times that required to vote.

Of more importance, this game law stated that all persons unqualified to hunt, at least ninety-five percent of the
population, were not qualified to keep or bear arms. In the language of the statute:

"[A]ll and every person and persons, not having Lands and Tenements of the clear yearly value of One hundred pounds ... are ... not allowed to have or keep for themselves, or any other person or persons, any Guns, Bowes, ... or other Engines."18

It was no longer necessary to prove illegal use or intent; the mere possession of a firearm by nearly all Englishmen was illegal. The new act also empowered owners of forests and parks to appoint gamekeepers who, by warrant, could search the homes of persons suspected of harboring weapons, and confiscate any arms they found.

It is truly astonishing how closely English present comports with English past, and how old the use of hunting as a restriction on the Right to keep and bear arms truly is.

This statute was partially remedied for Protestant subjects by the English Bill of Rights adopted on 16 December, 1689, with Parliament declaring that with the abdication of James II:

“7. That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law.”19

This, however, still restricted the natural Right to defend one’s life to a select portion of the population – a hallmark of gun control that remains to this day.

So, with that in mind, let’s get to the defense of our natural and inalienable Right to Keep and Bear Arms, starting with Blackstone's Commentaries. It and English common law are the basis of the law here in these United States, and was the bedrock of the education of people like James Otis, John Adams, Patrick Henry and Thomas Jefferson.

 

[SPM]

William Blackstone, Commentaries on the Laws of England (1765)

"In the three preceding articles we have taken a short view of the principal absolute rights [personal security, personal liberty, private property] which appertain to every Englishman. But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as outworks or barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.17"

The constitution, powers, and privileges of parliament . . . .
The limitation of the king's prerogative . . . .
. . . . [A]pplying to the courts of justice for redress of injuries.
. . . . [T]he right of petitioning the king, or either house of parliament, for the redress of grievances.
The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute . . . and is indeed a public allowance, under due restrictions, of the natural right of resistance and self- preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.17"

" . . . [T]o vindicate [the three primary rights], when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances; and, lastly, to the right of having and using arms for self-preservation and defense20"

Now, as you can see.....Blackstone's refers not to Citizens of equal station in society, but as subjects of the Crown and Parliament, which can have certain restrictions placed on their Rights as desired by King and country. Even with those restrictions, Blackstone acknowledges the People have the Right to keep and bear Arms for the purpose of resisting tyranny and oppression, long before the Declaration of Independence, the Constitution, or the Bill of Rights. James Otis, Thomas Jefferson, Patrick Henry and John Adams were all very familiar with Blackstone and used his Commentaries extensively in litigation and case preparation. It formed the basis of American legal thought, and would drive American jurisprudence going forward through the next century into the early 1900s.

In 1803, St George Tucker, a professor of law at the College of William and Mary as well as a jurist in the Virginia General Court, annotated versions (or American versions) of Blackstone's Commentaries and expanded upon those writings, taking into account the social and political realities in England as well as America, and how the law was interpreted and enforced:

St. George Tucker, Blackstone's Commentaries (1803)

[Annotation to Blackstone's discussion of the right to have arms as the fifth and last auxiliary right:]

"The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence suitable to their condition and degree, and such as are allowed by law."(Blackstone)21

"The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government.21"

"Whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England.21"

Tucker further informs us,

"that the prevention of popular insurrections and resistence to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws.18"

Here, Tucker highlights something quite interesting given the modern arguments over the Right of the People to Arms: the "you don't need that for hunting" argument. Even in 18th Century England, game laws regulating hunting were used as a scheme to control the Right of the people to procure and keep arms for the defense of themselves, their families, their homes and property. Tucker's annotations directly refute such law, citing they violate the unalienable and natural Rights of the People.

[A separate discussion in an Appendix of Tucker's Annotations, specifically about the Second Amendment.]

"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.21"

"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. Wherever standing armies are kept up, and the right of the people to keep and bear arms, is under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.21"

"In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.21"

This again proves the intent of the Right to Arms, as protected by the Second Amendment, is not about hunting, target shooting or collecting, but is considered an ultimate measure of consent by the People in how we are governed. This interpretation of the 2nd Amendment would continue as the legal precedent from the adoption of the Constitution and Bill of Rights until the War Between the States in the mid 1800s.

 

[SPM]

Joseph Story, Commentaries on the Constitution of the United States (1833)

Thirty years after Tucker’s work, Joseph Story, perhaps the most influential jurist on Constitutional theory and how it should be interpreted in American history, echoes these earlier treatises. His Commentaries on the Constitution of the United States (1833) is the gold standard used by judges and attorneys when arguing the constitutionality of laws, though as a Federalist, he argued heavily for the "implied powers" doctrine, that the central government could lean heavily upon the “necessary and proper clause” to invent new powers outside those specifically enumerated in the Constitution.

He was by no means a staunch proponent of limited government, which makes it quite interesting that he, like his predecessors, affirms that it is an individual Right to Arms, and that the purpose of the Right is defense against invasion, insurrection, and ultimately domestic tyranny (in fact, the majority of his explanation of the Right clearly demonstrates the primacy of domestic usurpation of power as its object and reason for inclusion in the Bill of Rights).




Volume II of the 2nd Edition of his Commentaries, published in 1853, contains the following in regards to the Second Amendment:

§ 1896. The next amendment is: "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."22

§ 1897. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.22

§ 1898. A similar provision in favour of protestants (for to them it is confined) is to be found in the bill of rights of 1688, it being declared, "that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law." But under various pretences the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege.22

His entire section explaining the rationale behind the 2nd Amendment stands for itself, both in clarity and substance. He even takes to task those who would obfuscate the plain meaning of the words, even predicting how the shifting attitudes of a population that had been born into a free condition would slowly become indifferent to their absolute Right to protect their Liberty through Arms.

The last line in § 1897 is so prophetic of the times in which we now live that if no copies of his work survived, some would argue it was completely made up.

He follows it in § 1898 explaining how in England this natural Right, as early as 1688 had been eroded, and by 1833 was relegated to a law in words only, one seldom observed as anything more than a privilege of the few. The fact that England has continued down this road, even after the point of needing private arms from America to protect against invasion by Nazi Germany,21 to a near total ban on defensive gun use, to now calling to take even knives from the subjects that live there - proves theirs is a long history of supplication to the whims of their rulers, one which demonstrates precisely why we must jealously defend our Rights, all our Rights, against those who would take them under whatever pretense.

 

[SPM]

Thomas Cooley, General Principles of Constitutional Law (1880)

About 50 years after the 1st Edition of Joseph Story's Commentaries, we find another very influential writer on Constitutional thought, interpretation and jurisprudence. We are now getting close to the century mark since the 2nd Amendment was ratified, which is a good place to examine how well the original meaning or intent of the Amendment held together, as well as potentially show any inclination to allow that meaning to erode. Thomas Cooley, writing in his General Principles of Constitutional Law (1880) offers the following:

Section IV. -- The Right to Keep and Bear Arms

The Constitution

. -- By the Second Amendment to the Constitution it is declared that, "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."32

"The amendment, like most other provisions in the Constitution, has a history. It was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people, and as a pledge of the new rulers that this tyrannical action should cease. The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation."23

"The Right is General. -- It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order."23

"Standing Army. -- A further purpose of this amendment is, to preclude any necessity or reasonable excuse for keeping up a standing army. A standing army is condemned by the traditions and sentiments of the people, as being as dangerous to the liberties of the people as the general preparation of the people for the defence of their institutions with arms is preservative of them."23

"What Arms may be kept. -- The arms intended by the Constitution are such as are suitable for the general defence of the community against invasion or oppression, and the secret carrying of those suited merely to deadly individual encounters may be prohibited."23

Even here, nearly a century later, the meaning remains remarkably intact, especially when one considers the Civil War ended just a decade and a half before. Even after the central government had put down what it considered a rebellion or insurrection (we're not debating the merits of the war, whether it was right, etc), IT DID NOT move to change the Constitution to eliminate private arms - arms which no doubt played a role in killing hundreds of thousands of US soldiers on battlefields across the country.

In fact, it didn't attempt to change the interpretation of the Right to keep and bear Arms or propose means of restriction. Even after such a conflict, the prevailing thought is that private arms exist "as a necessary and efficient means of regaining rights when temporarily overturned by usurpation."23

I find this particular instance fascinating, as I could only imagine any armed rebellion in our own times that failed would herald in sweeping change in private gun ownership, even for those who didn't take arms against the powers that be. Would Everytown, the Violence Policy Center, or Mayors Against Illegal Guns remain quiet in such an instance? Would Congress not only fail to act, but fail to even propose action? Would the Executive not use the military to take arms by force?

Another key idea expressed is a solid refutation of the notion that the wording could be interpreted to be only for the militia, further demonstrating that such an idea was as ridiculous then as it is today......as it was rejected both at the ratification of the amendment in 1791 and nearly 100 years later by Thomas Cooley in 1880.

However, in Cooley’s writing we do see a shift in the belief that the Right is limitless and beyond regulation, as his final paragraph speaks directly about concealed weapons. It is Cooley's opinion that arms secretly carried for the sole purpose of individual confrontations are not protected by the Second Amendment, and very well may be the first example of legal thought shifting away from the original intent and towards a more progressive bent that we will see surge in the 20th Century.

Here we can fall into trouble if we read this through the 21st century lens as our opponents surely will when confronted with this source. He is most certainly speaking about those who hide weapons for criminal mischief, for murder and/or assassination rather than for defensive actions whereby one defends their own life or the lives of others from an attacker, though he doesn’t explain it further to make such an interpretation definitive.

 

[SPM]

Brief Synopses of Major Supreme Court Cases of the 20th Century as Related to the 2nd Amendment

 Dred Scott v. Sandford, 60 U.S. 393, 416-17, 449-51 (1857)

In the course of explaining that the Bill of Rights -- including the Due Process Clause, which the majority concluded prevented Congress from interfering with slaveowners' property rights in their slaves -- limited Congressional action in the Territories, the Court said:

1) [N]o one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.24

2) Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding. These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care.24

United States v. Cruikshank, 92 U.S. 542, 551 (1876)

1) The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.25

Presser v. Illinois, 116 U.S. 252, 264-66 (1886)

Illinois State law barred "any body of men, other than the organized militia of the state and the troops of the United States, from associating as a military company and drilling with arms in any city or town of the state" The Court held:

1) The first [claim is based on] the second amendment, which declares: "A well regulated militia being necessary to thesecurityofafreestate,therightofthepeopletokeepandbeararmsshallnotbeinfringed." Wethinkitclear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms.26

2) But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. It was so held by this court in the case of U. S. v. Cruikshank, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms "is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government . . . .26

3) It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect.26

Logan v. United States, 144 U.S. 263, 286-87 (1892)

1) It was held that the first amendment of the constitution . . . did not grant to the people the right peaceably to assemble for lawful purposes, but recognized that right as already existing, and did not guaranty its continuance except as against acts of congress . . . .27

2) It was held that the second amendment of the constitution, declaring that "the right of the people to keep and bear arms shall not be infringed," was equally limited in its scope. 27

 

[SPM]

Brief Synopses of Major Supreme Court Cases of the 20th Century as Related to the 2nd Amendment, continued


An indictment in the District Court Western District Arkansas, charged that Jack Miller and Frank Layton:

"did unlawfully, knowingly, wilfully, and feloniously transport in interstate commerce from the town of Claremore in the State of Oklahoma to the town of Siloam Springs in the State of Arkansas a certain firearm, to-wit, a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length [contrary to the National Firearms Act] . . . ."28

1) A duly interposed demurrer alleged: The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution -- "A well regulated Militia, being necessary to the security of a free State, the right of people to keep and bear Arms, shall not be infringed." The District Court held that section eleven of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment.28

2) In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.28

3) The Constitution as originally adopted granted to the Congress power -- "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.28

4) The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.28

5) The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that theMilitiacomprisedallmalesphysicallycapableofactinginconcertforthecommondefense. "Abodyof citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expectedtoappearbearingarmssuppliedbythemselvesandofthekindincommonuseatthetime. [Citing further sources, e.g., the Virginia Act of October 1785 providing for a Militia of "all free male persons between the ages of eighteen and fifty years," with certain exceptions.]28

6) Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below.28

Miller was the most in-depth and comprehensive look at the Second Amendment prior to Heller and MacDonald, and perhaps the most offensive case interms of justifying federal infringements on the Right of the People to Keep and Bear Arms, as it is this decision which upheld the constitutionality of the National Firearms Act of 1934.

It is easy to see how the rise of progressivism in the early 20th Century had a debilitating effect on preventing federal and State encroachment on the Second Amendment-protected Rights of Americans through judicial activism and progressive revisionism.

Casey v. Planned Parenthood, 505 U.S. 833, 848 (1992) (dictum)

Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amdt. 9. As the second Justice Harlan recognized:

1) "[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty ́ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." Poe v. Ullman, [367 U.S. 497, 543 (1961)] (opinion dissenting from dismissal on jurisdictional grounds).29

Printz v. United States, 521 U.S. 898, 938-939 (1997) (Thomas, J., concurring)

1) The Court today properly holds that the Brady Act [a federal gun control law] violates the Tenth Amendment in that it compels state law enforcement officers to "administer or enforce a federal regulatory program."30

2) The Second Amendment . . . appears to contain an express limitation on the government's authority. That Amendment provides: "[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." This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. [fn1] If, however, the Second Amendment is read to confer a personal right to "keep and bear arms," a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections. [fn2] As the parties did not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms "has justly been considered, as the palladium of the liberties of a republic."30

3) Our most recent treatment of the Second Amendment occurred in United States v. Miller, in which we reversed the District Court's invalidation of the National Firearms Act, enacted in 1934. In Miller, we determined that the Second Amendment did not guarantee a citizen's right to possess a sawed-off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.30

4) Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the "right to keep and bear arms" is, as the Amendment's text suggests, a personal right. [Citing various books and articles.] Other scholars, however, argue that the Second Amendment does not secure a personal right to keep or to bear arms. [Citing various other articles.] Although somewhat overlooked in our jurisprudence, the Amendment has certainly engendered considerable academic, as well as public, debate.30

 

[chiefjason]

I like a simpler approach. The BOR's was the Anti Federalists idea. They were fearful of too powerful a government. All of them are individual rights put forward by a group that feared a tyrannical Gov. It's really just that simple. The anti Federalist would never enshrine a right to the Gov. Period.

Even then, most of the other founders agreed on their point. But the Federalists trusted that the Gov would maintain their views on things over the course of the country. I think we can say now that was a bad plan.

 

[SPM]

Now, there aren’t many 20th Century legal treatises I’ve been able to find on Constitutional thought, which is particularly telling since it was this century in which the Rights safeguarded by the Second Amendment were most ravaged by misunderstanding, intentional misinterpretation, or outright progressive reimagining by the so-called “living document” argument. (I’m looking for more 20th century sources – outside of jurisprudence – so if you have any, let me know)

One that is particularly helpful, though written before the important cases of Heller and MacDonald is Origins of the Bill of Rights by Leonard W. Levy (1999), Mellon Professor Emeritus at the Claremont Graduate School and Distinguished Scholar in Residence at Southern Oregon State College.

In the sixth chapter, regarding the Second Amendment (the Rights protected by the First Amendment are split into the first 5 chapters), Levy argues against the collective right argument:

“Believing that the amendment does not authorize an individual’s right to keep and bear arms is wrong. The right to bear arms is an individual right. The military connotation of bearing arms does not necessarily determine the meaning of a right to bear arms. If all it meant was the right to be a soldier or serve in the military, whether in the militia or the army, it would hardly be a cherished right and would have never reached constitutional status in the Bill of Rights. The “right” to be a soldier does not make much sense. Life in the military is dangerous and lonely, and a constitutionally protected claim or entitlement to serve in uniform does not have to exist in order for individuals to enlist if they so choose. Moreover, the right to bear arms does not necessarily have a military connotation, because Pennsylvania, whose constitution of 1776 first used the phrase “the right to bear arms,” did not even have a state militia. In Pennsylvania, therefore, the right to bear arms was devoid of military significance. Moreover, such significance need not necessarily be inferred even with respect to states that had militias. Bearing arms could mean having arms. Indeed, Blackstone’s Commentaries spoke expressly of the “right to have arms.” An individual could bear arms without being a soldier or militiaman.”31

However, Levy then goes on to argue the right is not unlimited, that public regulation may specify what types of weapons are lawful as well as the conditions under which those weapons may be kept. He then errs on the anachronistic view of the Second Amendment, that since these United States no longer depend on militias for defense, perhaps the Second protects a right that is not as important as it once was.

He finishes by arguing, as the Supreme Court did in Dennis vs United States (1951):

“That it is within the power of Congress to protect the government of the United States from armed rebellion is a proposition which requires little discussion” and that whatever theoretical right to revolution exists to oust a tyrannical government “is without force where the existing structure of the government provides for peaceful and orderlychange.” TheCourtadded“Werejectanyprincipleofgovernmenthelplessnessinthefaceofpreparations for revolution, which principle, carried to its logical conclusion, must lead to anarchy.”31

It is easily demonstrated that where legal and constitutional thought went off the rails with regards to the Second Amendment took place in 20th century America, with the rise of progressivism and the “living document” interpretation of the US Constitution.

This would be the prevailing opinion throughout the 20th Century, that the meaning of the words and language of the Constitution and Bill of Rights changes with the opinions of the time, and was accepted by both “mainstream” political establishments embodied by the Republican and Democratic parties, as well as the ardent bases of both.

However, the close of the 20th and first quarter of the 21st Centuries have seen a groundswell in a return to the original intent and meaning of the 2nd Amendment, and there is no other Right currently being debated with the same intensity, passion, or surety of purpose as the Right of the People to Keep and Bear Arms.

To get there, we must return to the Supreme Court of the United States.

 

[SPM]

Two landmark cases have pushed the 2nd Amendment from where it had been laid to rest by the courts to the forefront of the fight for the Rights and Liberties of the People today.

 District of Columbia v. Heller, 554 U.S. 570 (2008)

On June 26, 2008, the Supreme Court affirmed the Court of Appeals for the D.C. Circuit in Heller v. District of Columbia. The Supreme Court struck down provisions of the Firearms Control Regulations Act of 1975 as unconstitutional, determined that handguns are "arms" for the purposes of the Second Amendment, found that the Regulations Act was an unconstitutional ban, and struck down the portion of the Regulations Act that requires all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock". Prior to this decision the Firearms Control Regulation Act of 1975 also restricted residents from owning handguns except for those registered prior to 1975. The decision did not address the question of whether the Second Amendment extends beyond federal enclaves to the states, but was the first Supreme Court case to decide whether the Second
Amendment protects an individual right to keep and bear arms for self-defense, rather than the collective Right as argued in United States v. Miller. Heller was the first in-depth review of the 2nd Amendment in the Court’s history.

In Heller, the Court held the following:

(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.32

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.32

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.32

(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment.32

(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms...32

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion.32

(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.32

(2) Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.32

(3) The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition – in the place where the importance of the lawful defense of self, family, and property is most acute – would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.3

The ultimate shortfalls of Heller are paragraph (2) of the decision (though the elaborative example gives the government-minded rationale for limiting such a Right), as well as the failure to recognize the limits on government power of the States, respectively. However, the latter omission would be addressed a mere 2 years later.

 McDonald v. Chicago, 561 U.S. 742 (2010)

In McDonald v. Chicago, the Supreme Court held that the right of an individual to "keep and bear arms" protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states. The decision cleared up the uncertainty left in the wake of District of Columbia v. Heller as to the scope of gun rights in regard to the states, and laid the groundwork for further court challenges to restrictive State laws that infringe upon the Rights of the People.

In MacDonald, the Court held:

(1) The Second Amendment protects a fundamental Right of the individual to Keep and Bear Arms for self defense33

(2) Because the Right to own a gun is fundamental, 2nd Amendment protections of that Right also applies to the states. Since it applies to the states, a city law that bans all guns—such as the law in Chicago—cannot stand.33

However, this is the limit of the Supreme Court’s findings in this case. It is a lengthy decision (214 pages), and the majority opinion written by Samuel Alito, four of the 5 deciding justices hold the straightforward route argued by some pro-Rights advocates as well as the national Rifle Association - that the Second Amendment is part of the Fourteenth Amendment Due Process Clause, which is the approach that the Court has used since 1897.

However, Clarence Thomas, the 5th and deciding justice, instead argued that the Court should apply the Right to bear Arms through the Fourteenth Amendment Privileges or Immunities Clause, which was the way the Framers of the Fourteenth Amendment designed it, rather than the Due Process route.

Each of the dissenting opinions by the progressives on the bench use tortured logic, complicated and elaborate arguments trying to disprove the notion that the right to Arms was a fundamental Right, and therefore the cities and States should be free to restrict private ownership however and for whatever purposes they deemed necessary. Interestingly enough, Justice Sonya Sotomayor joined these dissenting opinions in full, directly contradicting her testimony during her confirmation hearings barely a year before MacDonald.

However, the most important accomplishment of MacDonald was incorporating the Second Amendment to apply to the States as well, something the Court had refused to do for much of the 20th Century.

 

[SPM]

The decisions made in both Heller and McDonald were further strengthened in 2016 by the per curium decision (8-0) in Caetano v. Massachusetts 577 U. S. ____ (2016), which vacated the ruling of the Supreme Judicial Court of Massachusetts that stun guns were not afforded any protection under the Second Amendment due to not being “the type of weapon contemplated by Congress in 1789 as being protected bythe Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).35

To arrive at this ruling, the Massachusetts court argued 3 main points:

• the defendant was not using the stun gun to defend herself in her home35
  
  
•  involves a "dangerous and unusual weapon"35
  
  
•  that was not "in common use at the time" of enactment.35

The Supreme Judicial Court of Massachusetts concluded:

•  Without further guidance from the Supreme Court on the scope of the Second Amendment, we do not extend the Second Amendment right articulated by Heller to cover stun guns. 35
  
  and
  
  
•  For the reasons stated above, we hold that G. L. c. 140, § 131J, does not violate the Second Amendment right articulated in Heller. We affirm the defendant's conviction of possession of an electrical weapon in violation of G. L. c. 140, § 131J35
  

However, the Supreme Court of the United States explicitly stated in its per curiam decision vacating the lower court’s ruling that the Massachusetts court went to great pains to misinterpret the Heller and McDonald rulings and violate precedent, and:

For these three reasons, the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent. Consequently, the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme bJudicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.34

In its ruling, the Supreme Court absolutely refutes the opinion of the State court decision, invalidating each point of their argument:

“the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010).34

As you can see, the Second Amendment, both historically speaking and in contemporary legal though, protects the natural, fundamental Right of every American to keep and bear arms for self defense. What remains to be seen is what head is just how much of this original intent and meaning can be recovered, both in the courts, in the legislatures and in the minds of our fellow Citizens. What is certain is that it was a long road that got us here, and it will be a long road back. It is up to each of us to defend our Rights as they stand now, push to remove the infringements that remain, and ensure the next generation knows and understands the importance of why we fight, the arguments as to why we’re Right, and to reaffirm our faith in the principles of Liberty and defend them against every foe.

 

[SPM]

References

1. T. Jefferson, Declaration of Independence, Philadelphia (1776)
   
   
2. T. Coxe, Pennsylvania Gazette (1788)
   
   
3. P. Henry, Independent Gazetter (1791)
   
   
4. S. Adams, Debates of the Massachusetts Convention (1788)
   
   
5. Militia Act of 1792, US Congress (1792)
   
   
6. 10 United States Code § 311, as amended (2012)
   
   
7. J. Madison, Federalist No. 46, New York Packet (1788)
   
   
8. North Carolina State Constitution (1776)
   
   
9. Pennsylvania State Constitution (1776)
   
   
10. Vermont State Constitution (1777)
    
    
11. Massachusetts State Constitution (1780)
    
    
12. Pennsylvania State Constitution (1790)
    
    
13. Kentucky State Constitution (1792)
    
    
14. Tennessee State Constitution (1796)
    
    
15. G.Washington,FarewellAddress,NewYork(1796)
    
    
16. T. Jefferson, First Inaugural Address, Washington, DC (1801)
    
    
17. J. Chitty, Observations of the Game Laws, with Proposed Alterations for the Protection and Increase of
    
    Game, and the Decrease of Crime, London (1816)
    
    
18. The Game Act, England (1671)
    
    
19. English Bill of Rights (1689)
    
    
20. W. Blackstone, Commentaries on the Laws of England (1765)
    
    
21. G. Tucker, Annotated Blackstone’s Commentaries (1803)
    
    
22. J. Story, Commentaries on the Constitution of the United States, Second Edition (1853)
    
    
23. T. Cooley, General Principles of Constitutional Law (1880)
    
    
24. Dred Scott v. Sandford, 60 U.S. 393, 416-17, 449-51 (1857)
    
    
25. United States v. Cruikshank, 92 U.S. 542, 551 (1876)
    
    
26. Presser v. Illinois, 116 U.S. 252, 264-66 (1886)
    
    
27. Logan v. United States, 144 U.S. 263, 286-87 (1892)
    
    
28. United States v. Miller, 307 U.S. 174 (1939)
    
    
29. Casey v. Planned Parenthood, 505 U.S. 833, 848 (1992) (dictum)
    
    
30. Printz v. United States, 521 U.S. 898, 938-939 (1997) (Thomas, J., concurring)
    
    
31. L. Levy, Origins of the Bill of Rights, Harvard Press (1999)
    
    
32. District of Columbia v. Heller, 554 U.S. 570 (2008)
    
    
33. McDonald v. Chicago, 561 U.S. 742 (2010)
    
    
34. Caetano v. Massachusetts 577 U. S. ____ (2016)
    
    
35. Commonwealth vs. JAIME CAETANO, 470 Mass. 774 (2015)
    

 

[DrPhudd]

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.

We need to stop all this militia debate. The second amendment is comprised of two distinctly different statements that are separated by a comma. "the right of the people to keep and bear arms shall not be infringed." stands quite well on its own.

 

[chiefjason]

We need to stop all this militia debate. The second amendment is comprised of two distinctly different statements that are separated by a comma. "the right of the people to keep and bear arms shall not be infringed." stands quit well on its own.

And I think state actually means state in that sense. Not fed gov, state gov. It's also necessary for a state to have a functional militia to secure itself from and over reaching fed gov or foreign power. Of course, that was written at a time before standing armies. Which, along with the Civil War, completely changed the fed-state relationship. So most folks have no concept of that idea.

 

[Long_Hunter]

MODs...motion to make sticky is made.

SPM...thanks for putting these together and keeping it readable, much appreciated.

 

[noway2]

MODs...motion to make sticky is made.

SPM...thanks for putting these together and keeping it readable, much appreciated.

Seconded.