search
top

Not an Individual Right?

I’m intrigued by this quote from Saul Cornell:

The arms bearing provision of the Pennsylvania Constitution does not frame the right as an individual right. If it did it would not pair it with the typical 18th century attack on standing armies and an affirmation of civilian control of the military. The entire provision is clearly about a militia based right.

The 1776 Pennsylvania Constitution states the following:

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.

Can someone explain to me how this can be interpreted as anything other than an individual right when it specifically says “the people have the right to bear arms in defence of themselves and the state?”

Of course, later, in 1790, we shorted that to:

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

Sorry, but the collective rights interpretation is looking more flimsy by the day.

102 Responses to “Not an Individual Right?”

  1. Jadegold says:

    There is nothing more flimsy than the Standard Model.

    In reality, there is no ambiguity or conflict here. The fact is the PA Constitution specifically tied the bearing of arms to a state militia function. The language is crystal clear; the bearing of arms is not just to defend oneself or one’s family–it is to defend all in the state.

    Again, the context WRT standing armies is very important. The states were very concerned the federal Govt. might deny the arming of state militias so they codified it in their state constitutions. From the 1776 Virginia State Bill of Rights (one which served as a model for many states and the 2A in the BoR):

    That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural and safe defense of a free State; that standing armies should be avoided, as dangerous to liberty; and that in all cases, the military should be under strict subordination to, and governed by, the civil power.”

  2. James says:

    Is this some kind of sick joke? “The right of the citizens” means “the right of the government”? Great, I guess we have to change it to “the right of the citizens, each individually, to the exclusion of the government and/or collective body…”

  3. Jadegold says:

    James: The Founders were very clear on that point. Think about it–if the Founders had really intended that everybody had a right to a firearm, it would have been a very simple matter to write exactly that. Without reference to the state or militaries or “well-regulated” or the like.

    Regardless, you’re attempting to erroneously frame the issue as pertaining to ‘the right of the government’–which is plainly wrong.

  4. thirdpower says:

    Yeah, that whole “defence of themselves” and “body of the people” thing is so ambiguous.

    Jade’s posts remind me of a sci-fi story where kids had chips implanted that kept them from seeing things the adults considered dangerous. I think Jade had one of those implanted by the VPC.

  5. thirdpower says:

    They did state it simply. “The right of the people to keep and bear arms shall not be infringed.” The rest is a subordinate clause explaining why. I know it’s hard for you to understand that part. It’s a big word.

    http://www.thefiringline.com/library/gov/usdoj-2004.html#2c

  6. Sebastian says:

    “A well educated citizenry, being necessary to the functioning of a free state, the right of the people to keep and read books shall not be infringed.”

    So in that sentence, are we to regard the right to keep and read books as only existing for well educated people? Or is the first clause just talking about why the second is important?

    The standard model never argues that the founders were unconcerned about the militia. Control of the militia was one of the contentious issues that surrounded ratification, because the Constitution explicitly made the militia subordinate to the federal government.

    The second amendment was intended that Congress could not use its militia powers to disarm the people, so that they can impose rule through use of a federal standing army. The preface to the amendment was intended to show anti-federalists that the founders took the concern of the federal government’s control of the militia seriously. They chose to protect the militia by recognizing the people’s right to be armed. That the militia today has falling into disuse and disrepair was exactly what the anti-federalists feared. Federalists and anti-federalists argued extensively over the federal government’s militia powers. The reason you don’t see them arguing over the right to bear arms is that both sides, federalist and anti-federalists, took that as a given.

  7. thirdpower says:

    The 2A also says nothing about the “power/right of the state or Government”. It says the “Right of the People”.

    Pretty clear for those w/o blinders.

  8. Jadegold says:

    In reality, of course, the Founders never intended all ‘the people’ to be armed. They excluded minorities, women, those of different faiths, those they determined not to be of “good” character, indentured servants, slaves—the list goes on.

    Additionally, we know folks like Washington, Jefferson, and Madison wanted select militias.

    Sebastian refers to some contentious issues. What he doesn’t say is the reason militia acts were contentious was that because the cost of military weaponry was being borne by poor people or states that didn’t want the expense of funding armories and they felt it was the duty of the Feds to fund militiamen.

    But again, this militates against the individual rights view if the states are telling the Feds to purchase weapons for their militias.

  9. Sebastian says:

    There were certainly state laws that barred slaves and native Americans from bearing arms, but bearing arms wasn’t the only rights that were denied these people. In any case, the fourteenth amendment changed that, and it’s difficult to consider the scope of the second amendment without also considering the fourteenth.

  10. Jadegold says:

    Again, Thirdpower trots out the same tired agument about ‘subordinate clauses.’ Not only is he wrong but he ignores the key point: if the Founders intended an individual right to firearms–thet were certainly bright enough to write it as such. No reference to the state or well-regulated or anything else needed.

    But they didn’t.

    In fact, here’s Madison’s draft of the 2A:

    The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

    We know the only contentious issue with this draft was not that it clearly directed an individual right to firearms. Instead, the issue was the “scrupulously religious” clause. It was feared that the Feds could exclude certain groups from military service if this clause were included.

  11. Jadegold says:

    There were certainly state laws that barred slaves and native Americans from bearing arms, but bearing arms wasn’t the only rights that were denied these people.

    Right. But what you’re doing is changing from an originalist position to a ‘Constitution as a living document’ position as it suits your argument. You can’t have it both ways.

    Though you may try.

    This will become apparent if you try and argue only firearms are guaranteed by the 2A and not other instruments(arms) of warfare including nukes, chem/bio weapons, etc.

  12. Sebastian says:

    Is it a tired argument? Again:

    “A well educated citizenry, being necessary to the functioning of a free state, the right of the people to keep and read books shall not be infringed.”

    Is keeping and reading books to be limited only to well educated people? Is that a reasonable interpretation of that sentence?

  13. thirdpower says:

    Nice try Jade, you still blank out the most important parts along w/ your rewriting of history and lack of English. It was written that way so as not to have to force those who were pacifists to take up arms. The second clause is defending the first.

    Try again.

  14. thirdpower says:

    And now w/ the pathetic slippery-slope arguement of “arms=nukes”.

  15. Sebastian says:

    Jade:

    Even originalists accept that the constitution can be changed through amendment. My argument was that the fourteenth amendment altered the scope of the bill of rights, and applied it to the states, and applied it to all people.

  16. Sebastian says:

    I don’t think only firearms are covered, but any arms that are part of the ordinary equipment of a soldier. This could include knives, bayonets, body armor, etc. I think it’s reasonable to suggest that it’s limited to arms that can be borne, and not to specialized crew served ordnance.

    So essentially, I think the Miller test is fine. The second amendment applies to arms that would be useful in a militia context, which, if you really look at how that would be applied today, would be anything in common police use, which would most definitely include arms that most gun control advocates would be uncomfortable with.

  17. straightarrow says:

    Can someone explain to me how this can be interpreted as anything other than an individual right when it specifically says “the people have the right to bear arms in defence of themselves and the state?”- Sebastian

    Me,me,me, I can. Simple, he’s a liar.

  18. thirdpower says:

    There is precendence. He lied about Uncle, Baker, Robb Allen, me, etc. etc.

  19. Sebastian says:

    For someone who’s a well known troll, I will credit Jade for knowing his side’s arguments pretty well, and keeping a reasonable dialog going. You might not agree with what he says, but he’s not trolling, and I will recognize that.

  20. bullbore says:

    Sebastian,

    You have to remember that parsing sentence structure is no longer including in English classes. People don’t know the definition of subordinate clause nor do they understand the purpose of using one. I see it all the time at the college level. Not only do I have to teach the students Genetics but I have to teach them Language Arts as well.

    Subordinate Clause of the 2A is clear. Anybody who thinks differently needs to take language arts again.

  21. “The right of the citizens” means “the right of the government”?

    Of course. Liberals don’t believe in citizenship. Liberals believe in an all-powerful government and obedient subjects. Look at your nearest university campus policies.

    And the ad hoc nonsense about “minorities” is breathtakingly stupid.

  22. Nomen Nescio says:

    the whole “collective rights” nonsense always gives me a headache. granted that the english language has changed in the past two centuries, but it just plain hasn’t changed all that much. reading the 2nd the way the ACLU and jadegold would have us do requires twisting the everyday meanings of very simple words and grammar into absolute pretzels, far above and beyond what one has to do to make modern-day sense of the rest of the constitution. anybody literate enough to be reading that document at all really should see that this line of argument is contorted nonsense.

    that said, we don’t have to like what the words plainly say. interpreting the constitution as a living document is necessary, because society is changing faster than the specified process of amending it can keep up with nowadays. but the sort of creative interpretation that can be reasonably fit under the rubric of “living document” can only go so far! we can’t, and shouldn’t try to, read black into white entirely.

    restricting arms to what an individual soldier can “bear” and independently operate is, i would say, such a living-document interpretation. the founders, i suspect, would not have unanimously or automatically agreed with it, yet it’s probably a necessary compromise today.

    i’m still uneasy with it, because it would seem to admit private ownership of RPG’s — as would any reasonable “militia use” interpretation. (the latter, or course, would also set fully-automatics free. i think that’s politically impossible today, so that legal approach won’t be taken.) now i like guns myself, but the notion of RPG-7’s in the trailer park three blocks up the street from me makes my skin crawl. can’t say as i know any really good way to prevent it, though, other than simply blatantly ignoring that consequence of reading the constitution this way — which is, i think, what’s going to actually happen.

  23. Sebastian says:

    I think even under a quite broad interpretation of the second amendment, there would still be justification for restricting certain explosive ordnance. Note that it wouldn’t be prohibited entirely, but the government could license it on the grounds that having explosive ordnance in a residential area is inherently dangerous if certain conditions aren’t met.

  24. Alcibiades says:

    If the “state” is the collective noun in that sentence, what about “themselves”? (I wouldn’t think they’d need to put two “collective” nouns in the same sentence.)

  25. Jadegold says:

    I see the “reasoned discourse™” folks are out and about, Sebastian.

    “A well educated citizenry, being necessary to the functioning of a free state, the right of the people to keep and read books shall not be infringed.”

    It’s an entertaining strawman but it doesn’t work for several reasons. First, in the 2A, the subject is a “well-regulated militia” not the citizenry as a whole. As we know, the militia wasn’t everyone–certain people and whole genders were excluded. Further, “well-regulated” has meaning in that it is well-trained, disciplined, subject to a hierarchy, etc.

    Second, “functioning of a free state” is a pretty vague notion–“security of a free state”–not so much.

    Last, “keep and read books” is quite specific. “Keep and bear arms” is as well. Bearing arms is an exclusively military function.

  26. Sebastian says:

    There’s many times I wish I could travel back in time and just say:

    Hey, James. Seriously, buddy, if you write it that way, people are going to argue that it only means people in the federal army can be armed. You need to do it this way:

    “It is the right of individual citizens to keep and bear arms in defense of themselves and the state, and don’t get any ideas that this means that it’s OK to limit it only to the context of military service.”

    Of course, he’d probably think I was nuts :)

  27. Sebastian says:

    Nuts in the sense that I’m pretty sure Madison would be shocked to discover that his wording could be construed as to only extend protection to what is effectively a government body, rather than the whole people.

  28. Nomen Nescio says:

    okay, so the old quip needs to be restated. it should go like this:

    a well educated electorate, being necessary to the liberty of a free state, the right of the people to keep and read books shall not be infringed.

    an electorate is no more the whole of the people than a militia is. liberty, here, is being used in a deliberately archaic fashion; today we’d probably exalt the democracy of a free nation instead, but 18th century intellectuals weren’t hot on democracy. they would have agreed, however, that an uneducated populace could not hope to forever retain their liberty. no more would we today say that an uneducated electorate would be likely to vote wisely and keep competent leaders in office.

    (as opposed to, say, leaders best known for having starred in bad motion pictures in earlier years. cough, cough.)

    and if “keeping and bearing arms” is so exclusively military a thing (arguendo, understand; privately, i feel this particular linguistic pretzel is sour and unpalatable) then keeping and reading books can surely be constitutionally restricted to the electorate as well. after all, if you’re not voting, then what compelling interest does the state have in ensuring your right to educate yourself?

  29. Magus says:

    So, to believe that the Second Amendment only applies to government militias (military bodies) I have to believe that the USA is the only government in the history of mankind that had to guarantee that members of one branch of its military forces could maintain and use (keep and bear) weapons?

    That’s absurd on the face of it–but that’s what the “collective” rights proponents would have me believe.

    Like wow dude, I have this big body of solders that I need to use, but like man, they don’t have no guns or cannons or stuff, because, like you know, they aren’t authorized, because like you know, even though they’re the military land forces for the nation, well, like you know, nobody authorized them to be able to keep and use, you know, those guns and cannons and stuff… so, like you know, we need a Constitutional amendment to authorize them to, well, like, you know, um, what’s the words… oh yeah, “Keep and Bear” those things and stuff…

    Yeah, right.

  30. thirdpower says:

    No, Jade, the subject is “the right of the people”.

    The Right of the People to Keep and Bear arms, shall not be infringed is a complete sentence.

    A well regulated Militia, being necessary to the security of a free State. is not.

    “A well regulated Militia, shall not be infringed” was argued in Emerson and found wanting as SCOTUS determined in 1881 that additional 18th and early 19th century punctuation did not alter the wording of a statute. Otherwise the First and Third Amendments make no sense whatsoever.

    You’re argument rests on your beleif that the FF’s would have said “the people” if they meant “the people”. Oh, wait, they did.

    There is no “A well regulated Militia, being necessary to the security of a free State, the power of the State to Keep and Bear Arms, shall not be infringed.”

    http://www.thefiringline.com/library/gov/usdoj-2004.html#2c

  31. Sebastian says:

    a well educated electorate, being necessary to the liberty of a free state, the right of the people to keep and read books shall not be infringed.

    Great analogy! I will have to adopt that one now.

  32. Jadegold says:

    Nomen Nescio: Depends if you’re an originalist or not. In the era the 2A was written, the “electorate” was, indeed, a very small subset of the population. Basically, the electorate in those days were propertied white males of the Christian faith.

    Further, “arms” is a military term. When we speak of an “arms” race–we’re not talking about which country has more 9mm handguns–we’re talking about ships, bombers, nukes, etc. When speak of orders of battle, we may refer to the armored cavalry arm, the air arm, the artillery arm, etc.

  33. thirdpower says:

    Nice try Jade. That’s a layman’s version of the word. Kind of like “theory”. In military jargon , heavy weapons are classified as “ordnance”. They also weren’t talking about the people keeping and bearing different branches of the military, now were they?

    You know, kind of like the phrase “I played ball, went to the ball, and had a ball”. Are they all talking about the same thing?

    When the FF’s were talking about privately held firearms, do you think that the main thing they had in mind was artillery, or civilians bringing their muskets? Sure, there were a few artillery units. They were owned by the ultra-rich, who were also the local politicians. Kind of like today.

  34. Nomen Nescio says:

    but “arms” is not an exclusively military term. it doesn’t take much googling to find present-day debate over the “arms race” between police and criminals, or even between separate criminal gangs. (where the arms in the race frequently are, as it happens, 9mm handguns…)

    it’s also being used by analogy in contexts that don’t even concern weaponry, as in the “arms race” between email spammers and anti-spam software (no military connection there, either).

    the term “keep and bear arms”, AFAIK, was used back in the middle ages, when military forces as we know them today did not yet exist; and was used, then, in reference to noblemen and the gentry. they may not have been common peons, but they certainly weren’t all military as we would understand the term.

    no more does “arms” refer only to crew-served weaponry and vehicles of war. finding references both old and new to hand-held, individual weaponry as being “arms” is so trivial it’s practically insulting for you to think i’d let that one pass. i’m usually leery of arguing from dictionary definitions, but this instance actually is well suited to it, because your claim here is so contrary to all established use of the language that even a general purpose dictionary will list definitions that contradict you before any implications that would support you.

    even the longer phrase “the right of the people to keep and bear arms” wasn’t invented in America; it goes back to centuries earlier, and to contexts that cannot reasonably be said to be exclusively military. in other words, you have to bend language, logic and history all three into unrecognizable pretzels to make your viewpoint make anything like sense — and i won’t swallow those pretzels.

    besides which, i am by no means an originalist. i’m very much a living-constitution sort of person, and the modern day meanings of “arms” and “the people” are not limited to the military or to the government, respectively. it would be hypocritical of me to give them anything but their modern interpretations, with no more than minor squinting and ignoring of consequences.

    references:
    * plenty of googling, easily replicated
    * http://wordnet.princeton.edu/perl/webwn?s=arm
    * http://www.guncite.com/journals/senrpt/senhardy.html
    * http://www.barefootsworld.net/senate82.html (as a source of further references)

  35. Jadegold says:

    Thirdpower: Please don’t embarrass yourself; it’s pretty amusing watching you–who hasn’t served a microsecond in the military–try to explain military terms. Please don’t even pretend to go there.

    Ordnance is not “heavy weapons;” ordnance refers to military weapons, ammunition, and equipment used in connection with them. They can be anything from an AECM to an ICBM.

    Nor is the term “to bear arms” a layman’s “version.” It quite literally means to go to or prepare for war.

    One does not bear arms against a rabbit or a paper target. One doesn’t bear arms to pretend he’s Carlos Hathcock at the local bar and shooting range.

  36. thirdpower says:

    You’re right, I haven’t served a “microsecond”. I’m at ten years and counting. Nice Ad Hominem.

    A rifle is not counted as “ordnance”. Large quantities of ammunition would be. Another different definition. Just like “Arms” is also used for different branches. Why did you refuse to answer my question? Where the FF’s talking about private arms = firearms or were they talking about the common man owning artillery?

    Of course you have now move the goalposts from “arms” to “to bear arms” and throw in the hunting, target shooting, sniper red herrings.

    The only one embarrassing themselves here is you.

  37. Jadegold says:

    I don’t believe you, ThirdPower.

    And, yes, rifles would be considered ordnance. In the USN, all ordnance is defined and its requirements for handling and storage is enumerated in OP-4. That includes weapons such as sidearms, rifles, machine guns and the like. The USMC also has a similar reference.

    Nice try, though.

  38. Sebastian says:

    Ordnance and arms are almost but not quite interchangeable terms. The definition from Oxford American English Dictionary says of ordnance:

    1. Mounted guns; artillery
    * military weapons ammunition, and equipment used in conjunction with them.

    Arms is listed as:

    1. Weapons and ammunition; armaments.

    A rifle certainly can be ordnance, but the common meaning is for mounted guns.

  39. Alcibiades says:

    There were privately owned cannons throughout the 18th and 19th Centuries (and even today), but I think, more often than not, they were collectively owned by towns for their militias. (Part of this was probably due to the expense of owning and operating a cannon.)

    Let’s also not forget that the whole Revolutionary War started when the British went around searching and seizing weapon caches.

    (Really, who should all read and buy Clayton Cramer’s book on the subject.)

    Keep and read books — in Latin.

  40. thirdpower says:

    Of course you don’t believe me. You’re so used to your own personal dishonesty, someone actually telling you the truth is beyond your comprehension. Just another example of “reasoned discourse” from you.

    Why don’t you answer my question Jade? Were the FF’s referring to artillery or common sidearms and muskets? Can you only play the semantics game now?

  41. Jadegold writes:

    Nomen Nescio: Depends if you’re an originalist or not. In the era the 2A was written, the “electorate” was, indeed, a very small subset of the population. Basically, the electorate in those days were propertied white males of the Christian faith.

    Uh, no. There were restrictions in most states that limited holding office to Christians (sometimes just to Protestant)–but voting was not so limited.

    Voting qualifications varied from state to state, with much stricter qualifications in the South (where sometimes less than half the white male population was allowed to vote), but from Pennsylvania northward the property qualification was fairly minimal. You needed either real estate or an income–and in many New England towns, it was pretty minimal.

    In any case, voting was more narrowly restricted than militia duty and that was more narrowly restricted than other rights. We know from examples that appear in the record that little black boys were carrying pistols in places like Maryland after the Revolution.

    There were state restrictions based on race in some of the colonies and into the early Republic–greatly increased after Turner’s Rebellion in 1831–but the Fourteenth Amendment was intended to scrap those restrictions. Unfortunately, decisions like Cruikshank (darling of the gun control groups) largely emasculated the privileges and immunities clause, to make sure that the Klan wouldn’t be punished for mass murder of freedmen.

  42. There were privately owned cannons throughout the 18th and 19th Centuries (and even today), but I think, more often than not, they were collectively owned by towns for their militias. (Part of this was probably due to the expense of owning and operating a cannon.)

    I’m not sure how rare they were. When Boston passed a fire hazard ordinance in 1786 that prohibiting leaving loaded firearms in homes, it included not just guns, but grenades, mortars, cannon, and the like. It seems a bit odd to include such weapons in the ordinance, if very, very few people owned them.

    Oh, and I have a 1783 Philadelphia handbill offering hand grenades for sale.

  43. Jadegold writes:

    Further, “arms” is a military term. When we speak of an “arms” race–we’re not talking about which country has more 9mm handguns–we’re talking about ships, bombers, nukes, etc. When speak of orders of battle, we may refer to the armored cavalry arm, the air arm, the artillery arm, etc.

    You might want to take it up with the various people that drafted state constitutions in that era. They used “arms” in clauses that clearly guaranteed an individual right. See here.

  44. Nomen Nescio says:

    as for private cannon in 1780’s Boston: mere mention in a statute that would ban them doesn’t guarantee that there were any of them around to ban — witness the list of firearms mentioned by name in various gun control laws, no matter how ridiculously rare they may be. or the fact that slungshot are still widely banned, despite the fact that few people even remember what the blessed things are any longer…

  45. as for private cannon in 1780’s Boston: mere mention in a statute that would ban them doesn’t guarantee that there were any of them around to ban

    It doesn’t guarantee that they were around, but they do show up in probate inventories from the 17th century (although rarely) and Ben Franklin bought one when the Quaker proprietors were reluctant to form a colonial militia.

  46. Sebastian says:

    I have to wonder if you deregulated a lot of things traditionally considered ordnance, if you’d not have a problem by virtue of the fact that the stuff is too expensive for most criminals to afford.

  47. thirdpower says:

    While the bigger stuff may be out of reach, I could see grenades becoming somewhat of an issue. Small, fairly easy/cheap to produce, etc. Perfect for taking out a rival gangbanger since driveby’s don’t hit their target very often.

  48. I have to wonder if you deregulated a lot of things traditionally considered ordnance, if you’d not have a problem by virtue of the fact that the stuff is too expensive for most criminals to afford.

    The one exception in recent times involved one of the DuPont heirs who suffered some sort of mental breakdown–and had an APC and automatic weapons. But he was so rich and politically connected (reserve deputy sheriff, I think) that under almost regulatory system, he would have been armed.

    While the bigger stuff may be out of reach, I could see grenades becoming somewhat of an issue. Small, fairly easy/cheap to produce, etc. Perfect for taking out a rival gangbanger since driveby’s don’t hit their target very often.

    You could make an argument (although doing considered violence to an original meaning interpretation) that the hand grenades of 1791 were approximately equivalent to a modern pipe bomb in destructiveness, because they used black powder instead of high explosives.

    Most states have regulations about pipe bombs, but realistically, they are impossible to make go away, because the required parts are readily available. I have some misgivings about hand grenades as protected arms, partly because of pragmatic concerns, and partly because of the arguable non-equivalence issue I alluded to in the previous paragraph.

  49. Sebastian says:

    That’s true, but if they were that useful in a criminal context, criminals would already be using them. Grenades are a very simple technology, and the means to make them is commonly found.

  50. thirdpower says:

    Maybe it’s that they haven’t been glamorized in the media yet. Make a few music video’s showing how cool it is to blow ’em up and we’ll see it start happening.

  51. Sebastian says:

    I forgot about John DuPont, which was big news around here, since, if I recall, his estate was in Pennsylvania. Crazy rich guys with tanks are a little scary, but in the big scheme of things not all that common. Of course, one guy with a tank could do a lot of damage. Though… if all his neighbors had RPGs with HEAT rounds, maybe not so much :)

    Actually, I agree with you about grenades. I think the government may regulate grenades for practical purposes, as I think they can do with any explosive ordnance.

  52. thirdpower says:

    I’m actually part owner of an armored vehicle. It’s a Cech. half-track converted to look like a German mid-war piece.

  53. Jadegold says:

    Unfortunately, Clayton E. Cramer’s cite doesn’t support the idea of “arms” being used in anything but a military context.

  54. emdfl says:

    So the term “people” in the 2nd Amendment refers to a government organization, but in the other Amendments it still means “people”? It’s good to know that even back then there was a disagreement about the meaning of the word “is”.

  55. Nomen Nescio says:

    wait, what?

    i don’t usually much agree with mr. Cramer, but his cite was a study of (some) state constitutions in reference to the federal 2nd amendment. the conclusion was fairly clear; the states separately used very similar language in terms of “the people” and their right to arms.

    now, armies are by definition collective entities. you literally can’t be a one-man army; that old saw is memorable and funny because it’s an oxymoron. a single member of an army is just a lone soldier, the army is a matter of teamwork by necessity.

    (heck, i only did about nine months of conscripted service in a whole other nation’s military, never rising above private, but even i caught on to that much!)

    my point is, the only way you can read mr. Cramer’s study as not supporting “arms” as a civilian, individual term, would be if you assumed out of hand that “the people” was necessarily a collective term. which is assuming your conclusion. jadegold, you’re committing petitio principii.

  56. thirdpower says:

    Repeating a statement doesn’t make it any more true. It’s already been cited over an over by the FF’s the concept of “private arms” for personal use as well as militia.

    And you still refuse to answer my question. I wonder why that would be?

  57. Jadegold says:

    EMDFL: If that’s the strawman you wish to construct.

  58. Nomen Nescio says:

    how on earth is that a straw man? the only way i can see for you to not read mr. Cramer’s reference as demolishing your position would be if you held the phrase “the people” to refer to a collective of some sort, in which case you’d have to be consistent in that opinion throughout. if “the people” does in fact refer to individual citizens, then “bear arms” can’t reasonably be a military term, because an “army” most certainly is a collective.

    (yeah, i know, fools quip about “one-man armies” and “an army of one”. those quips are funny because they’re oxymoronic. anybody who’s gone through boot camp knows perfectly damn well that armies are team efforts by necessity as well as by definition.)

  59. Linoge says:

    Personally, I try to go back to the words of those who wrote, or helped write, the Constitution as much as possible.

    No freeman shall ever be debarred the use of arms.
    – Thomas Jefferson

    Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American…[T]he 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 ever remain, in the hands of the people.
    – Tenche Coxe

    [The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation…(where) the governments are afraid to trust the people with arms.
    – James Madison

    [W]hereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.
    – Richard Henry Lee

    [T]he people are not to be disarmed of their weapons. They are left in full possession of them.
    – Zacharia Johnson

    I ask, who are the militia? They consist of now of the whole people, except a few public officers.
    – George Mason

    The whole of that Bill [of Rights] is a declaration of the right of the people at large or considered as individuals…[I]t establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of.
    – Albert Gallatin

    [C]onceived it to be the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack upon his liberty or property, by whomsoever made. The particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded.
    – Roger Sherman

    The funny thing is, to my low-brow, uneducated, and gun-crazed eye, it did not matter to the Founding Fathers whether the Amendment was interpreted as an individual right or a “militia”-right – it all came to the same outcome for them, due to their definition of a militia.

  60. Jadegold says:

    NN: It’s a strawman in that it provides only two possible choices, both of which are incorrect and inaccurate.

    Cramer’s cite provided nothing WRT an individual right; in fact, I’d argue it strongly supports the notion of protecting the right of the states to have and maintain a militia without meddling from the federal govt.

    The term ‘to bear arms’ is exclusively military in nature. The only possible explanation otherwise is that the Founders were too ignorant to understand what they were talking about. But that is very remote.

  61. Sebastian says:

    I see we have an energizer bunny thread here.

    I’d argue it strongly supports the notion of protecting the right of the states to have and maintain a militia without meddling from the federal govt.

    Except for the fact that Congress and the President are given near total authority in regards to controlling the militia. If the founders meant to prevent federal meddling in the militia system, they would have said:

    Art. I, Sec. 8:

    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;

    Or Art. II ,Sec. 2:

    The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;

    So it would seem quite a lot of federal meddling in the militia was part of the system by design.

  62. Rob K says:

    Nuts in the sense that I’m pretty sure Madison would be shocked to discover that his wording could be construed as to only extend protection to what is effectively a government body, rather than the whole people.

    Read Federalist # 41 (http://www.constitution.org/fed/federa41.htm). The Anti-federalist were already pointing out that his wording about the general welfare clause could (and would) be twisted (they were right).

  63. Rob K says:

    If the second amendment addresses the right of states to arm militias, how does that jibe with this?

    Article 1, Section 10, Paragraph 3:

    No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

  64. thirdpower says:

    Jade,

    You keep repeating that the cites prove a “collective argument”. I guess all those “personal safety ” phrases are in your blind spots again?

    lather, rinse, repeat the same.

  65. Nomen Nescio says:

    he also keeps repeating that “bearing arms” is somehow a wholly military notion, which is patent nonsense and amply disproven by now. i do believe he’s engaging in Reasoned Discourse(tm).

  66. Jadegold says:

    Except for the fact that Congress and the President are given near total authority in regards to controlling the militia. If the founders meant to prevent federal meddling in the militia system

    The concern at the time was that the feds wouldn’t permit states to have militias. It’s important to understand the context; the Founders viewed a standing army with an extremely jaundiced eye.

    It should also be noted that one of the gun lobby’s arguments is to allow individuals to revolt against a Govt. they find unpalatable. However, the Constitution clearly indicates the notion of insurrection is a non-starter.

    he also keeps repeating that “bearing arms” is somehow a wholly military notion, which is patent nonsense and amply disproven by now.

    I’ve seen exactly nothing that disproves the military connotation of “arms.” I did see Third try to trot some bogus military credentials but that ploy didn’t fly. The fact is “arms” is almost an exclusively military term. And to be certain, in the late 1700’s, the term “arms” only referred to military.

  67. Sebastian says:

    Insurrection isn’t something you really put in a constitution. Insurrection against a lawful government is something properly punished. The founders were concerned about what happened when a government decided to become unlawful.

  68. thirdpower says:

    You haven’t “seen” it because you refuse to, then you throw out the ad hominems and insults.

    What evidence do you have that I wasn’t in the military? Really, besides your own imagination? How much sea time did you have? How many cruises? Did you ever make it past butterbar? Did you even get commissioned? I did 4 years on the Kitty Hawk after nearly 2 years of electronics schooling. That’s only my Navy career. I’ve spent another 5 in the Army as an ADA scout and Admin.

    Now, enough of your stupid red herrings. We’ve already shown that the FF’s and numerous state constitutions and other writings did not exclusively mean in a military context. Repeating yourself does not make it true.

  69. thirdpower says:

    Kevin;

    Exactly. That’s the matter that anti’s refuse to discuss. The insurrection against a lawful gov’t is not acceptable. Now say, Bush decided he wanted a third+ term and refused elections, then insurrection becomes legitimate if still not redeeming.

  70. The term ‘to bear arms’ is exclusively military in nature.

    Then why use it in state constitutional clauses that guarantee a right to be armed for individual self-defense?

    And why did three states put phrases about collective defense in their RKBA provisions? If “bear arms” is exclusively military in nature, why bother to specify that it was for collective defense?

    Oh, and the big problem with your argument is that the Senate considered adding a collective defense clause to the Second Amendment–and didn’t do so.

    So you have two choices here:

    1. There was no need to do so–because “bear arms” is always military. In which case, why did three early state constitutions put the collective defense statement into their RKBA provisions?

    2. The Senate did not want to limit the right to military service. Since there are so many direct statements that the RKBA was individual in nature–and we have a letter written the day after the Senate vote that refers to an attempt to disarm the people (presumably because of that collective right clause)–it would seem that the bulk of the evidence argues that the right was understood as individual in nature.

  71. thirdpower says:

    Mr. Cramer: Let me just give you the standard response now: “There is no evidence that the Framers meant anything other than a military context. (Insert red herring or ad hominem here).”.

  72. Insurrection isn’t something you really put in a constitution.

    See the New Hampshire Constitution of 1784, Art. I, sec. 10 which is still valid:

    [Art.] 10. [Right of Revolution.] Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

  73. Jadegold writes:

    The concern at the time was that the feds wouldn’t permit states to have militias. It’s important to understand the context; the Founders viewed a standing army with an extremely jaundiced eye.

    Some more than others. But here’s a quote that proves your point–and disproves your larger point:

    at the Philadelphia Convention, in August 23, 1787, at Elliot’s Debates, 5:465, Elbridge Gerry expressed his opposition to a proposal to give the federal government authority to regulate the state militia by calling it despotism–and what he compared it to shows what else he regarded as despotism–and he assumed his fellow delegates would understand it as such:

    Mr. GERRY. This power in the United States, as explained, is making the states drill-sergeants. He had as lief let the citizens of Massachusetts be disarmed, as to take the command from the states, and subject them to the general legislature. It would be regarded as a system of despotism. [emphasis added]

    Clear enough? Elbridge Gerry didn’t just think that disarming the citizens was a bad idea, but he compared giving federal authority over the militia to disarming the citizens as a “system of despotism.” By making that parallel, Gerry was not only telling us what he thought of disarming the citizens, but expected others at the Convention to understand and share that perspective of what disarming the citizens would be.

    It should also be noted that one of the gun lobby’s arguments is to allow individuals to revolt against a Govt. they find unpalatable. However, the Constitution clearly indicates the notion of insurrection is a non-starter.

    Where does it do that? More importantly, why is it that Federalist 46 explicitly argues that this remains the final defense against tyranny?

  74. thirdpower says:

    And just to make sure the Federalist Papers are not dismissed:

    “The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution, and is appealed to by all parties in the questions to which that instrument has given birth. . . . ”
    — The U.S. Supreme Court in Cohens v. Virginia (1821)

  75. Jadegold says:

    Insurrection isn’t something you really put in a constitution.

    There’s a good reason for that. You’re basically planning failure right out of the gate; it’s a formula for anarchy: hey, we have a system of rights and a framework for governing–but, if you don’t like it–shoot someone.

    So you have two choices here

    Nope. Another strawman. The term “arms” was exclusively military in nature. That cannot be denied.

    In fact, the idea “arms” meant some other non-military purpose only came about fairly recently (1960s) as a fable concocted by the NRA. Further, nothing in the construction, history or interpretation of the 2A suggests anything WRT “self-defence”–be it from criminals or wild animals. Cue Joyce Lee Malcom’s misinterpreation of English common law.

  76. thirdpower says:

    Nice that you completely disregarded the MD constitution Jade. I guess all those quotes from the Founding Fathers were concocted by the NRA? Any evidence for that or just another ad hominem. Which is exaclty how I said you would respond.

    “defense of themselves” /= military. “Every freeman should be armed” /= military. Try again.

    So how much sea time did you have? What ships did you serve on? Did you even get commissioned? Were the FF’s referring to muskets or artillery when they mentioned “arms”?

  77. The link above to the quote from Elbridge Gerry should be this.

  78. Linoge says:

    Hm. Kind of funny how JadeGold has completely disregarded the quotes from the Founding Fathers I put up earlier. This is not terribly surprising, however, since those quotes blow his cute little points right out of the water (unless, of course, Richard Henry Lee was advocating military service for children…).

  79. Noops says:

    Bulllbore,

    “People don’t know the definition of subordinate clause nor do they understand the purpose of using one. I see it all the time at the college level. Not only do I have to teach the students Genetics but I have to teach them Language Arts as well.”

    Well, I suggest you stick to teaching genetics. The grammar is clear, but not as you say. There is a subordinate clause, but grammatically the second is independent. The comma there has the effect of creating harmony in the clause (independent subordination, not dependent subordination). In legal terms, this is referred to as “in pari materia.” Because the second clause is grammatically independent, it the subordinate clause speaks to the NECESSITY of the second clause. In other words, grammatically, it says, “Because the militia is so important (and citizenry makes up militia), then it’s important for people to have arms.”

    If it was dependent, it would be “People can only have arms within the their context of militia service” which still doesn’t really hold water since militias in both Constitutional Convention context and in modern context (US Code, Title 10, Subtitle A, Part 1, Chapter 12.311) which legislates that:

    (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.

    So even if you’re grammar was correct unorganized militia still holds as law, and confounds subordinate reading as a matter of law. But the real fact is, your grammar is incorrect, and I think that the framers had such good grasp of the language that this was not a mistake.

    Noops

  80. Further, nothing in the construction, history or interpretation of the 2A suggests anything WRT “self-defence”–be it from criminals or wild animals.

    Nothing except that the Pennsylvania Antifederalist request for a Bill of Rights is explicit about it; that many state constitutions with RKBA provisions refer to the right of individual self-defense; that Blackstone’s Commentaries on the Laws of England is explicit that there is a right to being armed for self-defense against criminals:

    he fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c. 2. 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.

    Argue if you want that “under due restrictions” allows gun control; I won’t argue the point. But a gun control law that prohibits “having arms for their defense” is clearly contrary to that intention.

  81. thirdpower says:

    Response= “no evidence + ad hominem/red herring”. Wait for it….

  82. There’s a good reason for that. You’re basically planning failure right out of the gate; it’s a formula for anarchy: hey, we have a system of rights and a framework for governing–but, if you don’t like it–shoot someone.

    The whole concept of a constitution as a set of limitations on democracy is “planning failure right out of the gate….” Fortunately, the Founding Fathers had enough experience with democracy run wild (especially Revolutionary Philadelphia and Articles of Confederation Rhode Island) to know that planning for failure is wise.

    As it happens, there were insurrections against the lawful authority of the states after the new Constitution, and all things considered, the government showed enormous restraint in how it punished the rebels. Why? Because there was a recognition that a little rebellion now and then was a good thing, and there was a desire to not break the revolutionary spirit. As Jefferson observed, after Shays’ Rebellion:

    What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.

  83. thirdpower says:

    From the same link:

    “The constitutions of most of our States assert that all power is inherent in the people; that they may exercise it by themselves in all cases to which they think themselves competent (as in electing their functionaries executive and legislative, and deciding by a jury of themselves in all judiciary cases in which any fact is involved), or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press.” –Thomas Jefferson to John Cartwright, 1824. ME 16:45

    So Jefferson was talking about collective persons, religion, property, and press?

  84. So Jefferson was talking about collective persons, religion, property, and press?

    Absolutely! That’s why we have always had a national church, government ownership of the means of production, and all newspapers were actually owned and directed by the Ministry of Truth!

  85. Noops says:

    Apologies for the type, but militia definition comes from

    US Code, Title 10, Subtitle A, Part 1, Chapter 13.311

    I accidentally typed “US Code, Title 10, Subtitle A, Part 1, Chapter 12.311”

  86. straightarrow says:

    Why are you all arguing with Jadegold? He is patently dishonest. This is not a difference of opinion, he is a liar. He has no conscience, nor any sense of honor.

    Barring physical interaction there is no way to win an argument with amoral beings. And he is not worth the effort. My response to anything he says to me will be to ignore him. I don’t even argue with pigs, I sure as Hell won’t waste time arguing with their inferiors.

    Leave him alone. He is so deficient as a human that he will self destruct if he cannot feed on the anger and incredulity he engenders in others.

    Yes, this is an ad hominem attack. It is accurate and deserved. When honest debate is distorted the way he has done the only thing to address is the defiiciency of the organism causing it.

  87. Why are you all arguing with Jadegold? He is patently dishonest. This is not a difference of opinion, he is a liar. He has no conscience, nor any sense of honor.

    Agreed. You can never persuade someone like Jadegold, because there is an emotional need that gun control provides him. The goal is not to persuade Jadegold, but those who are watching.

    And if not for Jadegold’s ignorant remarks (which have a curious similarity to Saul Cornell’s misstatements of history), how much of this useful material that has been contributed here would you have seen?

    Think of Jadegold as the grain of sand that irritates the oyster into making a pearl.

  88. thirdpower says:

    SA: I’m actually glad this has continued. Is Jade a troll? Sure. But I’ve learned some new things and added a few links to my info resources.

  89. Linoge says:

    But I’ve learned some new things and added a few links to my info resources.

    Hear hear.

  90. Jadegold says:

    And if not for Jadegold’s ignorant remarks (which have a curious similarity to Saul Cornell’s misstatements of history),

    Hmmmm. {{holding both hands out, palms up}}

    Saul Cornell–history professor at major US university, NEH and ACLS Fellow, lecturer at major US law schools and universities, as well as abroad.

    Clayton Cramer–Internet Legend and Defender of Heterosexuals

  91. thirdpower says:

    Aww, is that cute. Jade got tired of repeating his goodfacts and decided to post a blatant ad hominem. Now he claims he “refuted” Clayton and that Clayton left in shame.

    That’s a hell of a fantasy world you’re living in there, Jade.

    Just remember, w/ all your personal attacks against Clayton, it was the unethical actions of the “gun controllers” that brought him to prominence.

  92. Jadegold says:

    Awww. Did I hurt Third’s hero’s feelings?

  93. thirdpower says:

    “Hero”? Boy, you’re good at inventing things, aren’t you? Since you have to to keep your world view, you’ld have to be.

    So how much sea time did you do? What ships did you serve on? What department?

  94. Jadegold says:

    All told, I have about 9 years sea time. I’ve also done eng/tech assists for most Navy ships-small boys, amphibs, CLF, new buildings for about 20. Have done very little with CV/CV(N)s.

    It’s a manly job but perhaps not as manly as Cramer’s.

  95. thirdpower says:

    And are you still going to throw out the ad hominems about me not serving or are you just going to focus on insulting other people now? Since you aren’t supporting your beliefs, it will most likely be one or the other.

  96. It’s a manly job but perhaps not as manly as Cramer’s.

    Yeah, me and all the other firmware engineers wear flouncy skirts when we beat the code into working.

  97. Saul Cornell–history professor at major US university, NEH and ACLS Fellow, lecturer at major US law schools and universities, as well as abroad.

    Clayton Cramer–Internet Legend and Defender of Heterosexuals

    It says quite a bit about the state of academia, doesn’t it? I recall someone making some similar remarks about Michael Bellesiles, too. And he went down to flaming ignominy because he was a liar. And not even a very good liar, at that.

  98. thirdpower says:

    Oh Clayton, you’re my hero. :)

  99. Jadegold says:

    Clayton: Are you calling Saul Cornell a liar?

    It seems you are. Are you stating Saul Cornell is guilty of some fraud or impropriety? Or are you making a sweeping generalization about academia?

  100. thirdpower says:

    This debate has mostly been conducted on a high level. Regrettably, Saul Cornell’s final post has stooped to ad hominem attacks, barefaced attempts to promote Cornell’s book, and reliance on a quote for which Cornell inexplicably provides no source.

    http://www.fed-soc.org/debates/

  101. Jadegold says:

    If you read that debate (or have Cramer explain it to you), you’ll see that charge was made by Cornell’s debate opponents who were frustrated by having their talking points debunked.

    Again, Cramer should tell us if Saul Cornell is a liar or guilty of fraud or some impropriety.

  102. thirdpower says:

    Right, sure. Since you’ve resorted to the personal attacks again. You’re done.

Trackbacks/Pingbacks

  1. Left Rudder :: GunLoon Flattery! :: September :: 2007 - [...] Cramer, internet legend and Defender of all things Bright and Heterosexual had this to say about moi: And if…
top