Smart Guns?

[ivan134]

Japan has zero because they have zero guns. And it took them centuries of oppression and class conflict to "achieve" that. Are you suggesting nations spur global wars and commit war crimes to help push along complete disarmament? You are looking at a nation whose current status has roots going back almost 500 years.

 

Switzerland is also a "Third World" country. Don't just look at guns, look at victimization. THAT's the problem. Guns don't matter a whit if people aren't being victimized. America having gun stats versus nations that have severely curtailed their citizens' rights doesn't mean much if the people in those other nations are being victimized at a higher rate than those in America. Assaults, rapes, robberies, murders, B&E, DAYTIME B&E, etc. And don't overlook DEFENSIVE firearm use. Depending on whose stats  you go by Americans are credited with 800k to 2.4 million defensive firearm uses a year. 

AHAHAHAHAHAHAHAHAHAHA

 

Your entire argument is based on that bolded line which is false, that should tell you your argument is BS. Citation needed that any of the countries I listed or other 1st world countries have curtailed their citizens' rights. Also, the definition for 3rd world country must have become a lost more loose from the last time I checked so please elaborate on why Switzerland is a 3rd world country.

 

Let's even pretend for a second that your "reason" for why Japan has 0 deaths is true, why are the other countries so low (man, I can't wait to hear this)?

 

I've already addressed guns for self defense in an earlier comment. The need for them reduces when you actually decide to deal with the factors that lead to a high crime rate, and the biggest one is poverty. People with opportunities and prospects don't turn to drug peddling, robbery, breaking and entering, etc.

[HalGameGuru]

-snip-

1. First world countries were western bloc, second world countries were eastern bloc, third world were unaffiliated. Hence why switzerland can be considered "third" world. It had nothing to do with economics or wealth, we correlated the two over time because so many of the "third world" nations were conspicuously sitting out the cold war and often poverty stricken, usually due to the imperialism that led them to want to sit out the cold war in the first place. 

 

2. Japan doesn't have zero deaths, and while they may have "zero" gun violence, they do not have zero victimization. Nor zero suicide rate.

 

3. As I consider property rights, and by extension firearms, innately human in nature, any nation that has coerced limitations on such things for their citizenry I consider having curtailed their citizens' rights.

 

I don't know if you have checked the stats, but America is not an outlier when it comes to victimization, it actually has LOWER numbers than a lot of the european nations you touted before, and if you control for other factors, you can find more closely aligned populations in individual states and european nations that are quite different statistically. If you are going to harp on suicides or the miniscule numbers of gun victimizations that are not gang or drug related you are pushing an agenda, not seeking debate or respecting statistics. America is a 300+ million person collection of smaller nations. You could more accurately compare the US with ALL of Europe, or individual nations like Germany and Italy with individual states like California and Texas. 

 

https://mises.org/blog/mistake-only-comparing-us-murder-rates-developed-countries

 

http://www.dailymail.co.uk/news/article-1196941/The-violent-country-Europe-Britain-worse-South-Africa-U-S.html

 

 

If I can find the study, I believe sourced from CDC and FBI data, that went into individual states, and other nations across the world I will link it as well. 

 

http://crimeresearch.org/2014/03/comparing-murder-rates-across-countries/

 

https://www.unodc.org/documents/data-and-analysis/Crime-statistics/International_Statistics_on_Crime_and_Justice.pdf

 

If America tallied homicides like the UK does our rate would be less than HALF what our current statistical records show. And, once again, most of America's gun violence comes from drugs and gangs, you control for those specifics, you have rates rivaling anywhere on earth. Suicides are their own issue and there are a LOT of surprise nations on the list of highest suicide rates. A big issue on comparing stats across the pond is differences in reporting, anything connected to terrorism isn't counted, in America any crime involving a gun or where a gun is present is tallied as gun victimization, with nary a shot fired.

 

The "need" for firearms is no argument to remove said right from the people. Lower crime is all the more reason not to interfere with people and their rights. 

 

 

EDIT: http://www.telegraph.co.uk/news/uknews/crime/10557155/Lord-Stevens-admits-police-have-been-fiddling-crime-figures-for-years.html

http://www.telegraph.co.uk/news/uknews/crime/10052668/Police-ordered-to-slant-crime-data.html

 

EDIT: I did not realize how differently some nations tabulate homicides. I will have to come back with more apples to apples numbers for japan. America is far more liberal in counting something as a homicide, even certain unintentional deaths/intentional injuries that led to death and justified self-defense are tabulated as criminal homicides.

[suicidalfranco]

gun related thread... getting some popcorn

[Unhelpful]

To keep to the topic at hand and not the one that is going... An unreliable gun is an unsafe gun. This is an unreliable gun.

[GoldSrc]

I feel no less safe knowing my fellow man continues to possess his inherent rights. ME being allowed or disallowed keeping a gun imparts NO change in YOUR safety. Except in those situations where someone who would victimize you can now do so undeterred by righteous defense.

 

A gun is no danger to anyone, it is an inanimate object, PEOPLE are the danger. And disarming those who would victimize no one does not protect them or make those who WOULD any less dangerous.

 

Guns take very few lives. In america you are more likely to be killed by medical malpractice, a car accident, or a disease than by a gun, as a victim or on purpose, to the tune of as much as a thousand times the likelihood depending on how you choose to parse the data.

 

The vast majority of gun owners are no threat to anyone. And your allowance for the use of violence against such people because you dislike guns is hypocritical.

 

 

I would feel safer knowing that people carry muskets though.

You're really going to use that Molyneux moron?, I can't trust the words from some conspiracy theorist to be honest.

And yes, you're right, most people would never use their guns to hurt anyone, but it only takes a few dudes with mental problems to ruin the hobby most people enjoy.

 

 

See my comments in RED.

 

Biggest load of BS. This is all opinion

Your arguement is full of misguided claims, non- factual opinions, and flawed theory.

 

Whether I am pro or anti gun your point is still flawed.

I have made my point many times here in several threads, you may search it on the forum and use it to see my position on this issue and how wrong you are.

 

(Disclaimer: I do no purport to having experience in killing others, my information is based on experience in the law enforcement arena, military experience, over all training to deal with the criminal element and personal research on the issue.)

 

How easy it is for your average joe to get a gun in the US?

With that in mind, are 100% of all humans capable of rational thought and know that they shouldn't kill people with a gun?

 

You can't kill more people with a knife than with a gun, if that were true you would hear about "mass school murders" not "school shootings".

 

As much as you see me as an anti-gun person, I'm not.

When the government spies on you, most people don't care, but don't you dare to implement some sort of gun control because people lose their mind.

Funny how most people value more their guns than their privacy.

[HalGameGuru]

-snip-

Molyneux can be rather... ascerbic? but it doesn't make him wrong. And you would discount my rights because of what some random person MAY do, but you would guarantee unfettered and undefensible force in the hands of the government to make it so? Democide took over a quarter of a billion people in the 20th century, outside of warfare, which tallies up its own huge number. You seek to protect yourself from a chance occurrence by guaranteeing worse victimization by the apparatus. Your average neighbor is no danger to you with a firearm, now if you think YOU are a danger with a firearm by all means don't get one. But, that is on personal responsibility, anyone who would purchase a firearm is responsible for their actions with said firearm. No different than any other activity that can result in harm.

 

In the end, no one's "feelings" trump another person's rights.

 

After looking more into the statistics, especially the more recent UN numbers on Europe, and knowing more of the differences in how the stats are recorded and aggregated the US stats are an entirely different animal to most other nations. Our numbers are inflated by default, due to definitions and WHAT is reported, and most other nations are deflated by default, even basic victimizations like assault or theft are under reported.

 

 

Just because you don't hear about multiple stabbings doesn't mean they don't occur. Although, for the US, most of that violence, too, is drug or gang related. As for ease of purchasing a firearm most people who make this claim have never had to go through the process. 

 

The fact of the matter is America is not some horrifically violent place. Most of America is just as safe, if not safer, than most anywhere on earth. The vast majority of the victimization and violence America has to deal with is localized and due in no small part to the war on drugs, gangs, and poverty stricken areas. And the cures for such things are quite surprising to most statists.

http://tomwoods.com/podcast/ep-307-the-war-on-drugs-born-100-years-ago/

http://tomwoods.com/blog/futility-and-the-war-on-drugs/

http://tomwoods.com/blog/nullify-the-war-on-drugs/

 

A lot of America's violence and crime disappears when the state removes itself from what would be peaceful interactions

[SansVarnic]

 

How easy it is for your average joe to get a gun in the US?

With that in mind, are 100% of all humans capable of rational thought and know that they shouldn't kill people with a gun?

 

You can't kill more people with a knife than with a gun, if that were true you would hear about "mass school murders" not "school shootings".

 

As much as you see me as an anti-gun person, I'm not.

When the government spies on you, most people don't care, but don't you dare to implement some sort of gun control because people lose their mind.

Funny how most people value more their guns than their privacy.

First I apologize for the harsh attitude I had on my reply, it was uncalled for.

 

To answer your question:

For your average Joe; it is quite difficult to walk in and just buy a firearm, you cannot just walk up grab one and then walk over to the counter to purchase. In, for example Walmart, all weapons are locked in a case, you  have to be 21 minimum just to handle the weapon or ask to purchase.

There 3 main things that are required to purchase a gun in the US;

1) you have to have a permit to purchase

2) a background check is made before the permit issued (takes 30 days to complete)

3) another check is done on site before the purchase is finalized called the NICs. 

When the gun is being bought the buyer has to produce their ID, the permit and fill out a background questionnaire (form 4473). If any of these 3 items cannot be produced the sale will not happen.

 

Yes all people are capable of rational thought, whether they chose to be that way is entirely up to them but he question is have they been exposed to it and know what is. What the case is that most people don't understand how to use rational thought or was brought up in a manner in which they were taught what and how ration thought is. Unfortunately your question is demeaning to the populous as a whole.

 

You can kill more with a knife, no ammo so unlimited kills. But seriously one can walk through a school or a movie theater and mass kill with more ease than with a gun, unfortunately I cannot in good conscious post how exactly that can happen and besides it would be illegal for me to post it anyhow. It can be done and part of the training I have taken covers how this is possible. I work in law enforcement so these things are what I have to be trained to looked for.

 

I don't necessarily see you as anti-gun as I know plenty of gun owners that have this same perspective. Again I apologize for my previous reply.

 

True many will value gun rights over privacy but I hope you understand that both Privacy and Gun rights are both protected equally under the US Constitution. I am one of those that value both equally.

 

*edit

fixed typo and added (form 4473) or other wise known as the NICs check to clarify.

Edited January 21, 2016 by SansVarnic

[HalGameGuru]

First I apologize for the harsh attitude I had on my reply, it was uncalled for.

 

To answer your question:

For your average Joe; it is quite difficult to walk in and just buy a firearm, you cannot just walk up grab one and then walk over to the counter to purchase. In, for example Walmart, all weapons are locked in a case, you  have to be 21 minimum just to handle the weapon or ask to purchase.

There 3 main things that are required to purchase a gun in the US;

1) you have to have a permit to purchase

2) a background check is made before the permit issued (takes 30 days to complete)

3) another check is done on site before the purchase is finalized calls the NICs. 

When the gun is being bought the buyer has to produce their ID, the permit and fill out a background questionnaire. If any of these 3 items cannot be produced the sale will not happen.

 

You can kill more with a knife, no ammo so unlimited kills. But seriously one can walk through a school or a movie theater and mass kill with more ease than with a gun, unfortunately I cannot in good conscious post how exactly that can happen and besides it would be illegal for me to post it anyhow. It can be done and part of the training I have taken covers how this is possible. I work in law enforcement so these things are what I have to be trained to looked for.

 

I don't necessarily see you as anti-gun as I know plenty of gun owners that have this same perspective. Again I apologize for my previous reply.

 

True many will value gun rights over privacy but I hope you understand that both Privacy and Gun rights are both protected equally under the US Constitution. I am one of those that value both equally.

That's not true for the whole of the US. To buy a weapon at retail you have to be 21 for a handgun, or 18 for a long gun, you fill out a form 4473, and you have an NICS background check done. It can be allowed in minutes, especially if you are already licensed or are squeaky clean, it can take days or weeks if there is something in the check they don't like, even somethign that does not preclude you from owning a firearm.

[SansVarnic]

That's not true for the whole of the US. To buy a weapon at retail you have to be 21 for a handgun, or 18 for a long gun, you fill out a form 4473, and you have an NICS background check done. It can be allowed in minutes, especially if you are already licensed or are squeaky clean, it can take days or weeks if there is something in the check they don't like, even somethign that does not preclude you from owning a firearm.

That is exactly what I said.

 

Even in Iowa you can buy a long gun at 18 but you still have to have a permit to purchase. But if you noticed I used Walmart in the example and Walmart limits the sales to 21 years of age only.

[TopDollar]

That's not true for the whole of the US. To buy a weapon at retail you have to be 21 for a handgun, or 18 for a long gun, you fill out a form 4473, and you have an NICS background check done. It can be allowed in minutes, especially if you are already licensed or are squeaky clean, it can take days or weeks if there is something in the check they don't like, even somethign that does not preclude you from owning a firearm.

That's how it is here in Virginia as well. Two forms of identification which verify your residency in the Commonwealth, one of which has to be state issued. Fill out the 4473 form, wait a few minutes for the NICS check, then you're good to go. No purchase permit is required.

 

Your Virginia drivers license does have to be valid for 30 days before you can make a purchase however. Found that out the hard way when I bought my first handgun. Had been living here for 6 months already, but had just got my license updated a couple weeks before trying to buy. The FFL let me pay for it anyways then held it for me until I could take it home.

[HalGameGuru]

That is exactly what I said.

 

Even in Iowa you can buy a long gun at 18 but you still have to have a permit to purchase. But if you noticed I used Walmart in the example and Walmart limits the sales to 21 years of age only.

Yeah but you said all of the US, needing a permit to purchase is state level, none of the constitutional carry states, and many others, TX included, require no previous permitting to purchase a firearm.

[SansVarnic]

Yeah but you said all of the US, needing a permit to purchase is state level, none of the constitutional carry states, and many others, TX included, require no previous permitting to purchase a firearm.

OK let me re-phrase my statement.

A Permit-to-purchase and a permit to purchase. 

The first is something we have in Iowa the second is using your Firearm Permit/Concealed Permit/Carry Permit to purchase the gun. I was not referring to the first one.

[HalGameGuru]

OK let me re-phrase my statement.

A Permit-to-purchase and a permit to purchase. 

The first is something we have in Iowa the second is using your Firearm Permit/Concealed Permit/Carry Permit to purchase the gun. I was not referring to the first one.

The second one isn't required either. It is an option, that is some states can mean you don't have to do the NICS background check, but neither are a Federal requirement to purchase a firearm.

[soup]

 How the world is going with shootings everywhere,

 

There's shootings everywhere ?  I have never met anyone who has shot someone or been shot.  I have never seen or heard of anyone (localy) who has a gun or has used one.

I did hear of one incident in my brother's street were a gun crime was commited (turned out it was a jilted hubby with an air rifle). and one where a gang had come up from Manchester (or Birmingham or London or... reports vary) and had used a machine pistol in a drive by of a drug gang member (I remember at the time there was a lot of 'tut-tuting' and "what is the world coming to" that soon quitened when the shootee was found to be a gang member and stopped entirely when it was found to have been done by a rival gang from 'down south').

[SansVarnic]

The second one isn't required either. It is an option, that is some states can mean you don't have to do the NICS background check, but neither are a Federal requirement to purchase a firearm.

Only in states that have passed Constitutional Carry laws are purchase permits and carry permits not required. Having the carry permit does make the process go a lot smoother tho (not hat I advocate it)

By Federal law the only ones required are the ID and the NICs. 

In Iowa and other non-constitutional carry states your required a permit-to-purchase or a carry permit to make the purchase.

[HalGameGuru]

Only in states that have passed Constitutional Carry laws are purchase permits and carry permits not required. Having the carry permit does make the process go a lot smoother tho (not hat I advocate it)

By Federal law the only ones required are the ID and the NICs. 

In Iowa and other non-constitutional carry states your required a permit-to-purchase or a carry permit to make the purchase.

TX is not a constitutional carry state, you do not need a license nor permit before purchasing a gun. Your logic is unsound.

 

Some states require a permit to purchase, of those many only require it for handguns, of those that do not, whether it be a specific permit or concurrent with carry licensing, of those that do not most require no license at all to purchase, ALL you need is ID and a form 4473, SOME states can waive the NICS background check with a recent enough carry permit (that is a federal allowance BTW). But that is separate from the ability to purchase.

 

 

EDIT: https://en.wikipedia.org/wiki/Gun_laws_in_the_United_States_by_state

[TopDollar]

TX is not a constitutional carry state, you do not need a license nor permit before purchasing a gun. Your logic is unsound.

 

Some states require a permit to purchase, of those many only require it for handguns, of those that do not, whether it be a specific permit or concurrent with carry licensing, of those that do not most require no license at all to purchase, ALL you need is ID and a form 4473, SOME states can waive the NICS background check with a recent enough carry permit (that is a federal allowance BTW). But that is separate from the ability to purchase.

 

 

EDIT: https://en.wikipedia.org/wiki/Gun_laws_in_the_United_States_by_state

I don't think VA is considered a constitutional carry state either, although open carry without a permit is legal. The beginning of this month did see another bill proposed by senator Dick Black to make us a constitutional carry state however. We have a pro-gun legislation but an anti-gun Governor, so it's kind of a stalemate at the moment.

[HalGameGuru]

I don't think VA is considered a constitutional carry state either, although open carry without a permit is legal. The beginning of this month did see another bill proposed by senator Dick Black to make us a constitutional carry state however. We have a pro-gun legislation but an anti-gun Governor, so it's kind of a stalemate at the moment.

Some states have both, they are constitutional carry but ALSO offer training and permits.

[SansVarnic]

TX is not a constitutional carry state, you do not need a license nor permit before purchasing a gun. Your logic is unsound.

 

Some states require a permit to purchase, of those many only require it for handguns, of those that do not, whether it be a specific permit or concurrent with carry licensing, of those that do not most require no license at all to purchase, ALL you need is ID and a form 4473, SOME states can waive the NICS background check with a recent enough carry permit (that is a federal allowance BTW). But that is separate from the ability to purchase.

 

 

EDIT: https://en.wikipedia.org/wiki/Gun_laws_in_the_United_States_by_state

We are not debating logic, we are debating laws.

 

I am not sure why we are debating this, the only thing I disagree with you is that NICs is a Federal Requirement of all firearm sales.

Use a better source than Wikipedia for law reference please. 

 

 

I did some more research and found this. OK so I apologize, I was wrong some states being able to waive NICs but if a state does not use the NICs a minimum 5 day wait is required for all firearm purchases while a background check is done by the state.

 

But unfortunately you have sidelined the point of my answer, it is still not easy to purchase a gun for the average Joe. If you don't meet the requirements you don't buy.

 

Mandated by the Brady Handgun Violence Prevention Act (Brady Act) of 1993, Public Law 103-159, the National Instant Criminal Background Check System (NICS) was established for Federal Firearms Licensees (FFLs) to contact by telephone, or other electronic means, for information to be supplied immediately on whether the transfer of a firearm would be in violation of Section 922 (g) or (n) of Title 18, United States Code, or state law. The Brady Act is a public record and is available from many sources including the Internet at www.atf.gov

Source: https://www.fbi.gov/about-us/cjis/nics/general-information/fact-sheet 

 

Brady Law

 

On November 30, 1993, the Brady Handgun Violence Prevention Act was enacted, amending the Gun Control Act of 1968. The Brady Law imposed as an interim measure a waiting period of 5 days before a licensed importer, manufacturer, or dealer may sell, deliver, or transfer a handgun to an unlicensed individual. The waiting period applies only in states without an acceptable alternate system of conducting background checks on handgun purchasers. The interim provisions of the Brady Law became effective on February 28, 1994, and ceased to apply on November 30, 1998. While the interim provisions of the Brady Law apply only to handguns, the permanent provisions of the Brady Law apply to all firearms.

Source: https://www.atf.gov/rules-and-regulations/brady-law 

 

 

Due to the size of the below quote I inserted a spoiler;

Permanent Brady State Lists

 

Spoiler

States in which the FBI Conducts NICS Checks for All Firearms Transactions Alabama Alaska American Samoa Arizona Arkansas Delaware D.C. Georgia Idaho Indiana Kansas Kentucky Louisiana Maine Massachusetts Minnesota Mississippi Missouri Montana New Mexico New York North Dakota N. Mariana Islands Ohio Oklahoma Puerto Rico Rhode Island South Carolina South Dakota Texas Vermont West Virginia Wyoming States that Act as the Point of Contact (POC) for All Firearms Transactions California Colorado Connecticut Hawaii Illinois Nevada New Jersey Oregon Pennsylvania Tennessee Utah Virginia States that Act as a Partial Point of Contact (POC) for NICS Checks

Florida

Florida Dept. of Law Enforcement for all firearms,

except licensees may contact the FBI for certain pawn transactions

Iowa

Permit POC for handguns

FBI – long guns

Maryland

Maryland State Police – handguns and assault weapons

FBI – long guns and pawn redemptions

Michigan

Permit POC for handguns

FBI – long guns

Nebraska

Permit POC for handguns

FBI – long guns

New Hampshire

New Hampshire Department of Safety for handguns

FBI – long guns

North Carolina

Permit POC for handguns

FBI – long guns

Washington

Chief law enforcement officer for handguns without CPL

FBI - for handguns with CPL

FBI – long guns

Wisconsin

Department of Justice for handguns

FBI – long guns

Last Reviewed June 18, 2015

Source: https://www.atf.gov/rules-and-regulations/permanent-brady-state-lists

[HalGameGuru]

We are not debating logic, we are debating laws.

 

I am not sure why we are debating this, the only thing I disagree with you is that NICs is a Federal Requirement of all firearm sales.

Use a better source than Wikipedia for law reference please. 

 

 

I did some more research and found this. OK so I apologize, I was wrong some states being able to waive NICs but if a state does not use the NICs a minimum 5 day wait is required for all firearm purchases while a background check is done by the state.

 

But unfortunately you have sidelined the point of my answer, it is still not easy to purchase a gun for the average Joe. If you don't meet the requirements you don't buy.

 

Source: https://www.fbi.gov/about-us/cjis/nics/general-information/fact-sheet 

 

Source: https://www.atf.gov/rules-and-regulations/brady-law 

 

 

Due to the size of the below quote I inserted a spoiler;

Source: https://www.atf.gov/rules-and-regulations/permanent-brady-state-lists

Your statement that all non-Constitutional Carry states are A, was debunked when TX a non-CC state was B. You are the one making unfounded assertions.

 

That's also wrong, states that use NICS can have that waived in certain situations, Usually because the license or permit involved required a background check of its own, any state that does not use NICS it is up to them what system they use and how much time it takes, and whether that time is due to the background check or simply a mandated waiting period. 

 

I never said it was easy, and its limitations and how they are administered are hazy in their respect to our rights. But we need to be as accurate as possible for both sides of the argument, not matter which side any of us are on personally.

 

 

EDIT: you should read your links more carefully "an interim measure a waiting period of 5 days" "The interim provisions of the Brady Law became effective on February 28, 1994, and ceased to apply on November 30, 1998."

[SansVarnic]

EDIT: you should read your links more carefully "an interim measure a waiting period of 5 days" "The interim provisions of the Brady Law became effective on February 28, 1994, and ceased to apply on November 30, 1998."

That's why I added the last link (quote with the spoiler). The listed states still utilize the Brady law (not necessarily enforced) but the FBI NICs data base is what essentially replaced the Brady law in respect to background checks.

 

Either way by having this discussion with me the OP topic has been derailed. I do not wish to continue this as the point has been made over a dozen times in this forum in the last 6 months in multiple threads. Arguing with me the finer points of the NICs and other background checks system for each state and the laws the at back them up is pointless atm. I may work in law enforce (so I have to know a certain amount of the law to enforce it) but I cannot know every states law specifically other than my own. Respectfully I know the blanket portions and refer to those when I speak of them. Unfortunately for you and I we arguing the same thing, I apologize if I generalized things to much for to go along with but my original answer for the person that made the average Joe statement works. It some up the majority of legal firearms purchases in the US and anything more specific state to state can be referenced to individually.

 

Besides I summed this entire thread and any other gun conversation in other posts a little while ago. See my link below (I put in a spoiler as it is long)

I'll leave it be at that and let a mod lock this if they feel the need to.

 

http://linustechtips.com/main/topic/497792-should-america-ban-guns/page-13

Spoiler

SansVarnic, on 06 Dec 2015 - 1:51 PM, said:

Here is the thing.

America is unable to place a ban on guns period. The constitution in it current form prevents this.

The debate on a gun ban is not pointless but essentially a waste of time for the most part. The time, the undertaking, the massive amount of cooperation it will take to accomplish a goal of changing the constitution is tremendous not to mention nearly impossible in today's politics. The process to change or add an amendment takes about 4-7 years but cannot exceed 7 years or the process is considered null by law and must be restarted.

Please read the spoiler or click the following link; https://www.archives.gov/federal-register/constitution/

The authority to amend the Constitution of the United States is derived from Article V of the Constitution. After Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is charged with responsibility for administering the ratification process under the provisions of 1 U.S.C. 106b. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register. Neither Article V of the Constitution nor section 106b describe the ratification process in detail. The Archivist and the Director of the Federal Register follow procedures and customs established by the Secretary of State, who performed these duties until 1950, and the Administrator of General Services, who served in this capacity until NARA assumed responsibility as an independent agency in 1985.

The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention. The Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval. The original document is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the States which includes formal "red-line" copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b.

The Archivist submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor along with the informational material prepared by the OFR. The Governors then formally submit the amendment to their State legislatures. In the past, some State legislatures have not waited to receive official notice before taking action on a proposed amendment. When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register. The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are found to be in good order, the Director acknowledges receipt and maintains custody of them. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation.

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States). When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large and serves as official notice to the Congress and to the Nation that the amendment process has been completed.

In a few instances, States have sent official documents to NARA to record the rejection of an amendment or the rescission of a prior ratification. The Archivist does not make any substantive determinations as to the validity of State ratification actions, but it has been established that the Archivist's certification of the facial legal sufficiency of ratification documents is final and conclusive.

In recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, which may include the President. President Johnson signed the certifications for the 24th and 25th Amendments as a witness, and President Nixon similarly witnessed the certification of the 26th Amendment along with three young scholars. On May 18, 1992, the Archivist performed the duties of the certifying official for the first time to recognize the ratification of the 27th Amendment, and the Director of the Federal Register signed the certification as a witness.

As long as the US government continues to take a lenient stance on criminal behavior it is a better bet to allow its civilian population the means and choice to self defense and how that self defense is carried out. I will be the first to point out that I personally don't need a gun to defend my person but I am not willing to limit myself our others the means to a more efficient and effective method and other people may not be willing to make the same proclamation about themselves.

If those in this forum (and those that at are not) need to stop spouting on opinion about the US gun laws its cultural take on guns and take a look at the history involved in why the US Constitution contains the first 2 amendments that it has. There is a reason for it. http://www.constitution.org/2ll/2ndschol/89vand.pdf

[Copyright © 1994 Valparaiso Univ. Law Review. Originally published as 28 VAL. L. REV. 1007-1039 (1994). For educational

use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285

Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571.]

THE HISTORY OF THE SECOND AMENDMENT

DAVID E. VANDERCOY*

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.1

I. INTRODUCTION

Long overlooked or ignored, the Second Amendment has become the object of some study

and much debate. One issue being discussed is whether the Second Amendment recognizes the right

of each citizen to keep and bear arms,2

or whether the right belongs solely to state governments and

empowers each state to maintain a military force.3

The debate has resulted in odd political alignments which in turn have caused the Second

Amendment to be described recently as the most embarrassing provision of the Bill of Rights.4

Embarrassment results from the politics associated with determining whether the language creates

a state's right or an individual right. Civil libertarians support the individual rights recognized in the

First, Fourth, Fifth, and Sixth Amendments and defend these rights against governmental abuse.

Civil libertarians insist that each citizen be accorded the right to free speech, even if the citizen is

a Nazi hatemonger. Similarly, criminals can count on a vigorous defense of the fourth amendment

right to be free from unreasonable searches as well as the fifth amendment right not to incriminate

oneself. All of this is true even though most of us would (pg.1008) agree that Nazi hate language is of

no utility, and a criminal's confession, absent coercion, and the fruits of a search of his or her house

are among the best indicators of actual guilt or innocence. Yet, we zealously defend these rights on

the premise that governmental abuse of power is a greater evil than that posed by individual

hatemongers or criminals.

5 See Don P. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L.REV.

204, 207 (1983). The ACLU's summary of its national board's action at the June 14-15, 1980, meeting sets out the following policy

considerations:

The setting in which the Second Amendment was proposed and adopted demonstrates that the right to bear

arms is a collective one existing only in the collective population of each state for the purpose of maintaining

an effective state militia.

The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment that

the individual's right to bear arms applies only to the preservation of efficiency of a well regulated militia. Except

for lawful police and military purposes, the possession of weapons by individuals is not constitutionally

protected. Therefore there is no constitutional impediment to the regulation of firearms.

Nor does the ACLU believe that there is a significant civil liberties value, apart from the Second

Amendment, in an individual right to own or use firearms. Interests of privacy and self expression may be

involved in any individual's choice of activities or possessions, but these interests are attenuated when the

activity, or the object sought [sic] to be possessed is inherently dangerous to others. With respect to firearms,

the ACLU believes that this quality of dangerousness justifies legal regulation which substantially restricts the

individual's interest in freedom of choice.

Id. at 207 n.15. At the same meeting, the board approved the following clarification: "It is the sense of this body that the word

'justifies' in the policy means we will affirmatively support gun control legislation." Id.

6 George Washington further stated, "It is at all times difficult to draw with precision the line between those rights which

must be surrendered, and those which may be preserved ...." See Letter from George Washington to the President of Congress (Sept.

17, 1787) in 1 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 305 (John P. Kaminski et al. eds., 1983).

In the context of the Second Amendment, civil libertarian instincts are overcome by our fear

of one another. As a consequence, we find civil libertarian organizations, such as the American Civil

Liberties Union (ACLU), acting as participants in such groups as the National Coalition to Ban

Handguns.5

Indeed, the ACLU, typically at the forefront of defending individual rights against an

encroaching government, takes the position that the Second Amendment protects only the state's

right to an organized military—a well-regulated militia. It rejects any suggestion that the Second

Amendment protects an individual right.

While this phenomenon is interesting, it is not the subject of this Article. My purpose is much

narrower. I will address the history of the Second Amendment and attempt to define its original

intent. I will not suggest that original intent is controlling. On this point, I am reminded that George

Washington once suggested, "Individuals entering into society, must give up a share of liberty to

preserve the rest. The magnitude of the sacrifice must (pg.1009) depend as well on situation and

circumstance, as on the object to be obtained."6

The purpose of this Article is only to define those shares of liberty the Framers intended to

retain and those given up in the context of the Second Amendment. By way of preview, this Article

will contend that the original intent of the Second Amendment was to protect each individual's right

to keep and bear arms, and to guarantee that individuals acting collectively could throw off the yokes

of any oppressive government which might arise. Thus, the right envisioned was not only the right

to be armed, but to be armed at a level equal to the government.

To determine the original intent of the Second Amendment, this Article will examine the

history of armed citizens in England, the Federalist and Antifederalist debates, the meaning of the

word "militia," the constitutional ratification process, and the various state constitutions in existence

at the time.

7 See JOHN P. REID, IN DEFIANCE OF THE LAW: THE STANDING-ARMY CONTROVERSY, THE TWO CONSTITUTIONS, AND

THE COMING OF THE AMERICAN REVOLUTION 79-85 (1981).

8 1 WILLIAM BLACKSTONE, COMMENTARIES *320 [hereinafter COMMENTARIES].

9 See generally Leon Friedman, Conscription and the Constitution: The Original Understanding, 67 MICH.L.REV. 1493

(1969) (explaining that the existence of a standing army during peacetime was widely condemned as a threat to liberties).

10 Id.

11 COMMENTARIES, supra note 8, at *321.

12 David T. Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 HARV.J.L.

& PUB. POL'Y 559, 562 (1986) [hereinafter Hardy, Armed Citizens].

13 William S. Fields & David T. Hardy, The Militia and the Constitution: A Legal History, 136 MIL.L.REV. 1, 8 (1992).

14 See Arthur Allen Leff, The Leff Dictionary of Law: A Fragment, 94 YALE L.J. 1855, 2078 (1985).

15 2 ENGLISH HISTORICAL DOCUMENTS 416 (David C. Douglas & George W. Greenaway eds., 1953) [hereinafter

ENGLISH].

16 See 1 FREDERICK POLLOCK &FREDERIC W.MAITLAND,THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD

I 421-42, 565 (1968).

17 David T. Hardy, The Second Amendment and the Historiography of the Bill of Rights, 4 J.L. & POL. 1, 7 (1987)

[hereinafter Hardy, Historiography].

18 Id.

II. THE RIGHTS OF ENGLISHMEN

Eighteenth-century commentators frequently discussed the evils of standing armies.7

Blackstone observed that professional soldiers endangered liberty.8

In free states, the defense of the

realm was considered best left to citizens who took up arms only when necessary and who returned

to their communities and occupations when the danger passed.9

Standing armies were viewed as

instruments of fear intended to preserve the prince.10

A. The Establishment of the English Citizen Army

Blackstone credits King Alfred, who ruled England from 871 to 901 A.D., as establishing

the principle that all subjects of his dominion were the realm's soldiers.11 Other commentators trace

the obligation of Englishmen to serve in (pg.1010) the people's army to 690 A.D.12 Regardless of the

beginning date, an Englishman's obligation to serve in a citizen army is an old proposition. Coupled

with this obligation to defend the realm was the obligation to provide oneself with weapons for this

purpose.13

King Henry II formalized his subjects' duties in 1181 by issuing the Assize of Arms.14 The

arms required varied depending on the subjects' wealth, with the poorest freemen obligated to

provide the least—an iron helmet and a lance.15 The Assize required not only arms to be possessed,

but precluded the possessor from selling, pledging, or in any other way alienating the weapons.16 In

1253, the armed population was expanded beyond freemen to include serfs, individuals bound to the

land and the land's owner.17 Serfs were required to procure a spear and dagger.18

Inclusion of serfs in the citizen army was related to the mustering of men and arms which

occurred early in 1253 for purposes of crossing the sea to Gascavy and supporting the realm against

19 SOURCES OF ENGLISH CONSTITUTIONAL HISTORY 141 (Carl Stephenson & Frederick G. Marcham eds., 1937)

[hereinafter SOURCES].

20 Id. at 163.

21 3 Hen. 8, ch. 13 (1511).

22 Id.

23 SOURCES, supra note 19, at 397.

24 See, e.g., SOURCES, supra note 19, at 396 (Records Concerning the Militia (1539-1577)).

25 Id. at 397 (Instructions for General Musters (1572)).

26 Id. at 396.

27 JOHN FORTESCUE, THE GOVERNANCE OF ENGLAND, otherwise called THE DIFFERENCE BETWEEN AN ABSOLUTE AND

A LIMITED MONARCHY 114-15 (C. Plummer ed., rev. ed. 1885). Fortescue saw Englishmen as healthy, wealthy, and well armed,

"wherefore thai ben myghty, and able to resiste the adversaries of this realme, and to beet oper reaumes that do, or woldee do them

wronge. Lo, this is the fruty of Jus polliticum et regale, under which we live." Id.

28 In 1539, the French ambassador reported that "in Canterbury, and the other towns upon the road, I found every English

subject in arms who was capable of serving. Boys of 17 and 18 have been called out without exception of place or person ...." L.

BOYNTON, THE ELIZABETHAN MILITIA 8-9 (1967).

29 See generally 3 THOMAS BABBINGTON MACAULAY, THE HISTORY OF ENGLAND FROM THE ACCESSION OF JAMES THE

SECOND 47 (1900) (1st ed. 1849) (discussing English acceptance of a standing army by the end of the Tudor period).

the King of Castile.19 Another general levy occurred in 1297, which directed all men possessing land

to a value of twenty pounds to provide themselves with horses and arms and to come to London for

purposes of service in France.20

B. The Tudor Period

The citizen-army concept continued to develop through the Tudor period. Henry VIII decreed

that fathers must purchase longbows for sons between seven and fourteen years of age and teach

them to shoot.21 Each citizen between the age of fourteen and forty years was required to own and

use a longbow unless (pg.1011) disabled.22 Queen Elizabeth I formalized the process by issuing

instructions for general musters of the citizen army in each county.23 Commissions were issued to

various knights to take charge of such musters.24 The purpose of the musters was to enable Queen

Elizabeth to know the "numbers, qualities, abilities and sufficiency of all her subjects in that county

..., from the age of sixteen years upward, that may be found able to bear armour or to use weapons

on horseback or on foot."25 The citizen army, during Queen Elizabeth's reign, acquired the name

"militia."26

By the end of the Tudor period, the citizen army or militia concept had become a fixed

component in English life. The period's commentators attributed English military successes to the

universal armament practice prevalent in England but absent on the continent.27 Visitors from the

continent even noticed the stark difference.28 Historians suggested that English universal armament

caused a moderation of monarchial rule and fostered individual liberties because the populace had

in reserve a check which soon brought the fiercest and proudest King to reason: the check of physical

force.29 However, the virtues of universal armament and the effect of universal armament on

monarchial rule had not escaped Parliament's notice.

C. The Stuart Period

30 See H. LASKI, THE RISE OF EUROPEAN LIBERALISM (1936); John V. Orth, North Carolina Constitutional History, 70

N.C. L. REV. 1759, 1765 (1992).

31 See THE PARLIAMENT OF WONDERS: COMMON DEBATES 1628 (Robert C. Johnson et al. eds., 1977) [hereinafter

PARLIAMENT].

32 Id.

33 For a general discussion of this area, see 8 SAMUEL R. GARDINER, HISTORY OF ENGLAND FROM THE ACCESSION OF

JAMES I TO THE OUTBREAK OF THE CIVIL WAR 1603-1642 (1965).

34 Id.

35 SOURCES, supra note 19, at 406-07.

36 SOURCES, supra note 19, at 412-13.

37 Roy G. Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2

HASTINGS CONST.L.Q. 961, 966-67 (1975) (citing KING JAMES I,THE WORKES OF THE MOST HIGH AND MIGHTIE PRINCE JAMES 529,

531 (1616)).

38 Weatherup, supra note 37, at 967.

39 SOURCES, supra note 19, at 441.

40 Id.

41 Id. at 429.

42 Id.

The early Stuart period was the single most important period in English history in terms of

shaping the political theory of the American revolutionary leaders.30 During this period, civil war

occurred between Parliament and the crown, a King was executed, another King fled to France, a

military dictatorship (pg.1012) ruled, supremacy of the English Parliament over the crown was

established, and Parliament installed a new King and Queen and forced them to accede to a

Declaration of Rights.31 Throughout this period, various factions sought to control the militia and

intermittently to disarm opposing factions.32

James I, the first Stuart monarch, took the Crown in 1603.33 An agitated House of Commons

immediately confronted him.34 James had proclaimed that individuals elected to Parliament could

be seated only if certified by the chancery; only proper men could be certified.35

Parliament took the position that it would determine who should be seated.36 The relationship

deteriorated, with James frequently asserting that Kings hold their thrones by the will of God, not

Parliament, and that to dispute the King is blasphemy.37 James's position was that the King was the

law and all rights flowed from the King. Consequently, in 1621, James advised Parliament that it

existed only by the grace of the King.38

Legal commentators and Parliament assessed the question of the King's power differently.

Lord Coke argued that the King's prerogative was limited to what the law of land allowed him.39

Coke's view was that the law of England was composed of only three parts: common law, statute,

and custom.40 Consequently, the King had no power outside of these. Parliament pointed out that its

powers and liberties were "the ancient and undoubted birthright and inheritance of the subjects of

England ...."41 James I tore the page containing these words from the Journal of the Commons.42

43 See Joyce A. McCray Pearson, The Federal and State Bill of Rights: A Historical look at the Relationship Between

America's Documents of Individual Freedom, 1993 HOW. L.J. 43, 46 (discussing the second antecedent of the federal bill of rights).

44 SOURCES, supra note 19, at 450-52.

45 2 HISTORICAL COLLECTIONS 257 (J. Rushworth ed., 1721).

46 References to this army appear at SOURCES, supra note 19, at 490 (The Nineteen Propositions, June 1, 1642, in which

Parliament insisted on removal and discharge of the same).

47 SOURCES, supra note 19, at 455-56.

48 Weatherup, supra note 37, at 968.

49 Lawrence Herman, The Unexplored Relationship Between the Privilege Against Compulsory Self-Incrimination and

the Involuntary Confession Rule (Part I), 53 OHIO ST. L.J 101, 136 (1992) (discussing Charles's reconvening Parliament in order

to get an appropriation of money).

50 See Daniel R. Coquillette, Ideology and Incorporation III: Reason Regulated—The Post-Restoration English Civilians,

1653-1735, 67 B.U. L. REV. 289, 301 (1987) (discussing the Long Parliament).

51 SOURCES, supra note 19, at 479-81.

52 Id. at 477-78.

53 Id. at 486-87.

54 Id.

James's son Charles fared no better in his relations with Parliament. In (pg.1013) 1628,

Parliament enacted the Petition of Right.43 This petition enumerated Charles's violations of the rights

of his subjects, including forced loans to the Crown, imprisonment without process, quartering of

soldiers in English homes without the consent of the owner, and the execution of persons pursuant

to martial law.44 The King agreed to acknowledge his excesses because he needed Parliament's

assistance in raising revenues.45 Charles I thereafter dissolved Parliament and refused to call new

Parliaments for eleven years.

Charles I began developing his own army.46 Charles attempted to raise funds for additional

military forces by writs or assessments on each individual.47 In addition, ecclesiastical canons were

added which advised subjects that bearing arms against the King would result in damnation.48

Scotland went into open rebellion.

Charles I was forced to call Parliament to session in 1640 for purposes of raising additional

taxes because of the rebellion.49 The new Parliament, frequently called the Long Parliament because

of its extended tenure,50 seized the opportunity to assert its influence to the detriment of the

monarchy. Parliament secured for itself the power of dissolving and eliminating the King's

prerogative courts.51 Additionally, Parliament demanded that Lord Strafford, the King's leading

minister, be removed from his post on the grounds that Strafford had raised a standing army in

Ireland.52 The King complied; Strafford was executed; and Ireland revolted.

Swelled with its success in outmaneuvering the King, the Long Parliament moved to seize

control of the militia.53 The King balked and refused to accede to this demand. Parliament moved

forward and appointed its own officers to (pg.1014) take charge of the militia by passing the bill the

King had refused to sign as an Ordinance of Parliament in 1642.54 Parliament called out the militia

55 SOURCES, supra note 19, at 488.

56 Id. at 487.

57 JOYCE LEE MALCOLM, THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS: THE ORIGINS OF THE SECOND

AMENDMENT 8-9 (1981).

58 Id. at 393-94.

59 SOURCES, supra note 19, at 523.

60 EDMUND S. MORGAN, INVENTING THE PEOPLE 73 (1988).

61 Id. at 67.

62 Id. at 72.

63 Id. at 73 (citing 7 JOHN RUSHWORTH, HISTORICAL COLLECTIONS 867-68 (1721)).

64 MORGAN, supra note 60, at 74.

65 SOURCES, supra note 19, at 507 (citing THE HEADS OF THE PROPOSALS (1647)).

and warned that militia units mustered under authority other than that of Parliament would be

punished.55 The King did the same, and civil war ensued.56

The actual ability of Parliament or the King to muster the militia is unclear. Charles

attempted to disarm many militia units by confiscating public magazines and seizing the weapons

of residents.57 In addition, Charles sought to arm Catholics he had previously disarmed to secure

their assistance.58 These acts could be considered as evidence that Parliament was more successful

at securing the support of local militias than was Charles I. In any event, Parliament's forces

prevailed. Charles I was executed in 1649 and the Kingship and the House of Lords were abolished.

England was declared a free state.59

Parliament's declaration notwithstanding, England was not a free state. The militia, mustered

in 1642, became standing armies by 1649. After a period of years, the citizen-soldiers no longer

served as the need arose. Many were unwilling to follow the dictates of Parliament. Parliament

created its own army, known as the "New Model Army" in 1645.60 True to its roots, a large portion

of the army perceived that its loyalties lay with the people, not Parliament. Several events fostered

this perception. One event was Parliament's failure to pay the soldiers. Other events included

Parliament's favoring a national Presbyterian church.61

Many army leaders, including Oliver Cromwell, were advocates of religious freedom. Those

army leaders took the position that the English people's freedom of worship was a right over which

Parliament had no control. Thus, part of the army, initially raised by Parliament, saw itself as an

independent political force empowered to act in the name of the people. The army, increasingly

subject to Cromwell's control, proposed an "Agreement of the People," which excluded Parliament's

power over religion, impressing men into the army or navy, or requiring accused persons to

incriminate themselves.62 Parliament rejected the "Agreement."63

(pg.1015)

Consequently, soldiers took an oath, called a "Solemn Engagement," to remain together until

their demands for back pay and political changes were met.64 The army defined Parliament's

authority and dictated when it would meet.65 Subsequently, Parliament attempted to disband the

66 Hardy, Historiography, supra note 17 [errata: Armed Citizens, note 12], at 573.

67 Id.

68 Id.

69 Id.

70 Id.

71 STEPHEN P. HALBROOK, THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT 45 (1984);

DAVID T. HARDY, ORIGINS AND DEVELOPMENT OF THE SECOND AMENDMENT (1986).

72 Hardy, Historiography, supra note 17 [errata: Armed Citizens, note 12], at 574 (Citing ORDINANCES AND ACTS OF THE

COMMONWEALTH AND PROTECTORATE 1317 (London 1911)).

73 Id.

74 MORGAN, supra note 60, at 94.

75 Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration,

80 GEO. L.J. 309, 321 (1991).

76 Hardy, Historiography, supra note 17 [errata: Armed Citizens, note 12], at 574.

77 SOURCES, supra note 19, at 541.

78 8 CALENDAR OF STATE PAPERS (DOMESTIC), Charles II, No. 188, at 150 (July 1660).

army. The army declined and eventually took over the government, installing the Rump Parliament.66

When a subsequent Parliament attempted to disband the army, it was dissolved.67 Ultimately, another

Parliament bestowed on Cromwell the role of Lord Protector.68 This Parliament also attempted to

reduce the army's size and revitalize the militia.69 Cromwell, however, dissolved Parliament and

created a military government. Segments of the army, paid regularly by the government, were

assigned to each of eleven military districts.70 Cromwell's army was authorized to disarm all

Catholics, opponents of the government, and anyone else judged dangerous.71 When Cromwell died

in 1659, the Rump Parliament met again and enacted laws that empowered government officials to

confiscate arms from landowners to protect the Commonwealth.72 Shortly thereafter, legislation was

passed authorizing the seizure of arms from Catholics, anyone who had borne arms against

Parliament, or anyone else judged to be dangerous to the State.73

In 1660, the army intervened and General George Monk reinstated members of Parliament

who had been purged in 1648 because they favored the monarchy.74 Parliament then restored the

monarchy by placing Charles II, the executed King's son, on the throne. Charles II was in an

uncomfortable position. He had no army. His father was executed after the Civil War. Because of

the policy of universal armament and the Civil War, the English people were heavily armed.

Cromwell's army of 60,000 was mingled with the rest of the population. Consequently, Charles II

decided to develop his own army and to disarm the population.75

(pg.1016)

Charles II disbanded the army except for troops he believed would be loyal to his

government.76 Parliament assisted by enacting the Militia Act of 1661 which vested control over the

militia in the King.77 Charles II began molding a militia loyal to the throne by directing that his

officer corp assemble volunteers for separate training and "disaffected persons ... not allowed to

assemble and their arms seized."78 In 1662, the more select militia was authorized to seize arms of

79 See J.R. WESTERN, THE ENGLISH MILITIA IN THE EIGHTEENTH CENTURY 10 (1965).

80 Joyce Lee Malcolm, The Right of the People to Keep and Bear Arms: The Common Law Tradition, 10 HAST.CONST.

L.Q. 285, 299-300 (1983) [hereinafter Malcolm, Tradition].

81 22 & 23 Car. 2, ch. 25 (1671).

82 Id.

83 Id.

84 SOURCES, supra note 19, at 555.

85 Hardy, Historiography, supra note 17 [errata: Armed Citizens, note 12], at 577.

86 Weatherup, supra note 37, at 140 [ed: reference is to 1982 Senate Report pagination.].

87 For example, King James II tried to force the Church of England's clergy to support his policy of religious tolerance

and to read his Declaration of Indulgence from their pulpits. The Archbishop of Canterbury and six other bishops petitioned the King

against the use of his dispensing power. King James had them charged with seditious libel. The jury acquitted, and the public

endorsed the result. Edith G. Henderson, The Background of the Seventh Amendment, 80 HARV. L. REV. 289, 330-31 (1966).

88 Id.

89 See SOURCES, supra note 19, at 583; Godden v. Hales, 89 Eng. Rep. 1050 (K.B. 1686).

anyone judged dangerous to the Kingdom.79 In addition, gunsmiths were ordered to report weekly

on the number of guns made and sold; importation of firearms was banned.80

A move toward total disarmament occurred with passage of the Game Act of 1671.81 The

Game Act dramatically limited the right to hunt to those persons who earned over £100 annual

income from the land.82 More importantly, and unlike any prior game act, it made possession of a

firearm by other than those qualified to hunt illegal and provided for confiscation of those arms.83

Charles II's successor, his brother James, pursued the disarmament. James, however, was the

object of suspicion because he was Catholic. As King, James was also the official head of the

Anglican Church. He sat on the throne of a country that barred Catholics from holding appointed

office.84

James was challenged only a few months after taking the throne by Charles II's illegitimate

son, the Duke of Monmouth, who proclaimed himself as the Savior of Anglicanism.85 James crushed

the rebellion and, in doing so, doubled his standing army to 30,000 men.86 He used his kingly

"dispensing power," which permits kings to make an occasional exception to the law, to appoint

Catholic officers to enter his army. James quartered his new troops in private homes in violation of

Parliamentary enactments. The populace thus became suspicious of whether James might plan to

impose his religion on (pg.1017) England.87

James continued disarmament by enforcing it in Ireland. The common perception was that

James was disarming Protestants in Ireland and the new Whig party that opposed him. James then

asked Parliament to repeal the test acts that precluded Catholics from holding office, to suspend the

Habeas Corpus Act, and to abandon the militia concept in favor of standing armies.88 Parliament

refused.

James responded by having his Judges find that the laws of England were the King's laws

and the King could dispense with them.89 The King replaced Protestants with Catholics at high

90 Weatherup, supra note 37, at 141 [ed: reference is to 1982 Senate Report pagination.].

91 SOURCES, supra note 19, at 599.

92 Id. at 606.

93 Id. at 601.

94 Malcolm, Tradition, supra note 80, at 307.

95 The Declaration of Rights contained as its fifth and sixth charges against James II the assertion that he had attempted

"to subvert" the "[l]aws and [l]iberties" by "raising and keeping a Standing army ... in time of peace" and "y causing several good

Subjects, being Protestants, to be disarmed at the same Time when Papists were both armed and employed contrary to Law." The

Bill of Rights, 1 W. & M., sess. 2, ch. 2 (1689).

96 JOURNAL OF THE HOUSE OF COMMONS FROM DEC. 26, 1688 TO OCT. 26, 1693, at 21-22 (London 1742) (Lib. of

Congress Rare Books Collection)).

97 Malcolm, Tradition, supra note 80, at 307 (citing 10 H.C. JOUR., 1688-93, at 21-22).

98 Id. (emphasis added).

government posts, including the military; he then placed 13,000 men of his army outside London.90

In 1688, James's son-in-law, William of Orange, a Protestant, landed in England with a large Dutch

army. James's army deserted him and he fled to France.

William and Mary became sovereigns in 1689. Parliament restricted their powers by adopting

the Declaration of Rights.91 William and Mary were required to accept the rights enumerated in the

Declaration as the rights of their subjects and to rule in accordance with Parliament's statutes.92 The

Declaration recited the abuses by James, including the raising and keeping of a standing army

without Parliament's consent, quartering of troops in private homes, and disarming Protestant

subjects. The declaration set forth the positive right of Protestant subjects to have arms for their

defense, suitable to their conditions, and as allowed by law.93

The Declaration did not create a new right. The English had been able to possess individual

arms for centuries and at times were required to keep them. Nevertheless, the debates attending the

Declaration make clear that Parliament thought the right should be recognized as a right of

individuals. The Whigs in the Convention Parliament were the most outspoken in favor of the right

to (pg.1018) possess arms to resist tyranny.94 The members were aggrieved that the King and a prior

Parliament had attempted to, and did, disarm some of the English subjects.95 An early draft of the

grievance portion of the Declaration recited that "the Acts concerning the militia are grievous to the

subjects,"96 a reference to those portions of the civil war era militia acts that permitted the militia to

disarm those suspected of disloyalty.

To address this grievance, the draft stating the positive right first provided: "t is necessary

for the Publick Safety, that the Subjects which are Protestants, should provide and keep Arms for

their common Defence. And that the Arms which have been seized, and taken from them, be

restored."97 This version stated a collective purpose for the right, public safety, and common defense.

A second version followed that deleted the reference to the public safety but retained the collective

purpose language: common defense. It altered the "should keep" language to "may keep." This

version read, "[T]hat the Subjects, which are Protestants, may provide and keep Arms, for their

common Defence."98

99 1 W. & M., sess. 2, ch. 2 (1689).

100 SOURCES, supra note 19, at 601.

101 1 W. & M., Sess. 2, ch. 2 (1689).

102 Malcolm, Tradition, supra note 80, at 309 (citing 4 & 5 W. & M., ch. 23 (1692)).

103 Id. at 311 (citing Rex v. Gardner, Strange, 2 REPORTS 1098, 93 Eng. Rep. 1056 (K.B. 1739)).

104 SOURCES, supra note 19, at 601 ("Bill of Rights").

105 Malcolm, Tradition, supra note 80, at 309 (citing 1 W. & M., ch. 15 (1689)).

106 See HALBROOK, supra note 71.

The final version came after a compromise with the House of Lords. A prior Parliament,

during the civil war era, had not only permitted its militia, a collective organization, to disarm others,

but had also abolished the House of Lords. The House of Lords apparently objected to the "collective

purpose" language in the Commons draft. It secured new language that completely eliminated the

collective purpose—common defense language.99 The complete text, on this point, as adopted, reads

"[T]hat the subjects which are Protestants may have arms for their defense suitable to their

conditions and as allowed by law."100

Several other points are important regarding this article of the declaration. First, the language

that Protestant subjects may have arms "as allowed by law" was not construed as a limitation on

possession, but rather a limitation on (pg.1019) use.101 Parliament enacted a new game or hunting act that

deleted firearms from the list of hunting equipment that could not be possessed except by the

wealthy.102 Arms could be confiscated if used to poach game, but possession of arms was protected

as a matter of right.103 However, the phrase "as allowed by law" highlights that what Parliament

giveth, Parliament could take away. With or without the phrase, Parliament's Declaration of Rights

only protected those rights from abuse by the monarchy. In 1689, like today, the non-constitutional

English system permits the current Parliament to abrogate the rights granted by a prior Parliament.

Second, the English Declaration of Rights states "that the subjects which are Protestants may

have arms."104 However, contemporaneous legislation in 1689 made clear that while Catholics were

not permitted to stockpile weapons, they were allowed to possess arms for defense of their house or

person.105 Last, although the Declaration speaks solely in terms of an individual right to bear arms,

a review of eighteenth-century literature indicates that the intended purpose was to provide both an

individual and a collective right with the collective right being the more important.106 A true

collective right, however, could only be protected by guaranteeing the individual right.

Two points should be addressed on this issue. First, during the civil war era and thereafter,

both Parliament and the monarchy had proclaimed themselves, to the exclusion of the other, as the

protector of the subjects' well-being. To facilitate the collective rights of the subjects, each had

attempted to disarm the others' supporters. Thus, the collective organization intended to protect all

subjects' liberty, the militia, became an instrument of governmental tyranny. The collective rights

of all subjects could not be guaranteed if the government had the power to vest enforcement in one

collective organization because the government controlled the organization. Accordingly, the

government's power to appoint the officers of the militia and select its membership meant that the

militia could become an instrument of the government, not the people. Thus, the people's collective

107 COMMENTARIES, supra note 8, at *88.

108 Id. at *144.

109 Id. at *140-41.

110 See BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION (1967); Michael W. McConnell,

The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409 (1990).

111 See JOHN G.A. POCOCK, THE MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC

REPUBLICAN TRADITION 462-552 (1975); CAROLINE ROBBINS, THE EIGHTEENTH-CENTURY COMMONWEALTHMAN: STUDIES IN THE

TRANSMISSION,DEVELOPMENT, AND CIRCUMSTANCES OF ENGLISH LIBERAL THOUGHT FROM THE RESTORATION OF CHARLES IIUNTIL

THE WAR WITH THE THIRTEEN COLONIES 385 (1959); Robert E. Shalhope, Republicanism and Early American Historiography, 39

WM. & MARY Q. 334, 334-37 (1982).

112 See WILLIAM M. WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION 18-19 (1972).

113 See generally POCOCK, supra note 111 (tracing republican thought from Aristotle to Machiavelli and Florentine

political theory, to James Harrington and the English civic humanists, to the eighteenth century's Radical Whigs, and, ultimately to

the American Founders). For an in-depth analysis of Harrington's political thought, see THE POLITICAL WORKS OF JAMES

HARRINGTON (John G.A. Pocock ed., 1977).

114 See generally JAMES HARRINGTON, The Commonwealth of Oceana, in THE POLITICAL WORKS OF JAMES HARRINGTON,

supra note 113, at 170 (explaining that the way to mediate security of property with widespread civic participation was to redistribute

property, especially non-feudal, "allodial" interest in land, broadly within society so that citizenship, and the opportunity to

participate, would be widely available). Not all republicans, however, held egalitarian property distribution notions. For a discussion

of elitist aspects of republicanism, see, e.g., Hendrick Hartog, Imposing Constitutional Traditions, 29 WM. & MARY L. REV. 75

(1987); Frank I. Michelman, Possession v. Distribution in the Constitutional Idea of Property, 72 IOWA L. REV. 1319 (1987).

115 THE POLITICAL WORKS OF JAMES HARRINGTON, supra note 113.

rights were enforceable only if the power of enforcement, force of arms, was universally

dispersed.(pg.1020)

III. THE ENGLISH THEORISTS

Accordingly, when Blackstone spoke of the rights of persons, he defined such rights as being

either: 1) absolute, that is belonging to the person whether out of society or in it; or 2) relative,

meaning the right is an incident of membership in society.107 Blackstone described the right to keep

arms as absolute or belonging to the individual, but ascribed both public and private purposes to the

right. The public purpose was resistance to restrain the violence of oppression; the private was

self-preservation.108 Blackstone described this right as necessary to secure the actual enjoyment of

other rights which would otherwise be in vain if protected only by the dead letter of the laws.109

In addition to Blackstone, the views of other seventeenth- and eighteenth-century English

political theorists clearly influenced the political views of the colonists who ultimately would revolt

and establish a new nation.110 American political thought was strongly linked to "republican" thought

in England.111 The essence of republican thought was that a citizenry could rule itself without the

paternal guiding hand of a monarch.112

One of the leading republican theorists was James Harrington.113 Harrington's beliefs were

simple and direct. He believed that ownership of land gave people independence.114 This

independence would cultivate rights now (pg.1021) considered fundamental, including the right of

self-government. Harrington also believed that the actual independence attained would be a function

of the citizen's ability to bear arms and use them to defend his rights.115 He sought support from the

116 NICCOLO MACHIAVELLI, THE PRINCE AND THE DISCOURSES 44 (Luigi Ricci trans., Mod. Lib. ed. 1950) (1513).

117 See JAMES HARRINGTON,THE POLITICAL WRITINGS OF JAMES HARRINGTON:REPRESENTATIVE SELECTIONS 74 (Charles

Blitzer ed., 1955).

118 MORGAN, supra note 60, at 157.

119 See, e.g., BERNARD BAILYN,THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION (1967); POCOCK, supra note

111, at 462-552; ROBBINS, supra note 109, at 385. Although these historians are all part of a common movement, there do exist

significant differences in the ways they view republicanism. See Shalhope, supra note 111, at 334-37.

120 Hardy, Historiography, supra note 17 [errata: Armed Citizens, note 12], at 585 (citing CRISTOPHER HILL, SOME

INTELLECTUAL ORIGINS OF THE ENGLISH REVOLUTION 27 (1980)).

121 Hardy, Historiography, supra note 17 [errata: Armed Citizens, note 12], at 589 (citing FRANCOIS HOTMAN,FRANCOR

CALLIA at iv (R. Molesworth trans., London 1711)).

122 The Founding Fathers were influenced by the fact that the entire body of republican philosophy known to them was

based on English and classical history, which taught that popular possession of arms was vital to the preservation of liberty and a

republican form of government. See Robert E. Shalhope, The Ideological Origins of the Second Amendment, 69 J. AM. HIST. 599

(1982).

123 The unanimity with which Federalists and Antifederalists supported an individual right to bear arms is a reflection

of their shared philosophical and historical heritage. The unanimity in the contemporary understanding of the Second Amendment

helps explain the relative absence of recorded debate over it. What little debate there is appears at 1 ANNALS OF CONG. 778-80 (J.

Gales ed., 1834) and relates to James Madison's proposal that the amendment provide that "no person religiously scrupulous shall

be compelled to bear arms." Id.

works of Machiavelli, who proclaimed that there was a direct relationship between good arms and

good laws.116

A central thesis of Harrington's republican theory is that an armed population is a popular

government's best protection against its enemies, both foreign and domestic.117 While Harrington and

subsequent republicans argued the virtue of armed citizenry, they warned that standing armies were

to be avoided at almost all cost because such armies become the government's instrument to retain

power.118 Rather, a populace that possessed the land and arms inevitably would retain political power

as well as serving as the best defense against the popular government's enemies.

These views became tenets of early republican or whig political theorists during the

eighteenth century.119 Henry Neville argued that by arming the people, democracies could obtain

incomparable advantage over neighboring aristocracies because the aristocracies could not arm their

populace for fear they would seize the government.120 Robert Molesworth praised the armed and free

Swiss, as well as his own brethren, the English, as examples of the virtue of arming the people as

individuals.121

(pg.1022)

IV. THE POLITICS OF THE FOUNDING FATHERS

The English republican views on the relationship between arms and democracy profoundly

influenced the views of the founding fathers.122 Both the Federalists, those promoting a strong central

government, and the Antifederalists, those believing that liberties including the right of self-rule

would be protected best by preservation of local autonomy, agreed that arms and liberty were

inextricably linked.123

The first discussion in which these views were articulated occurred in the context of Article

1, section 8 of the Constitution concerning the powers of Congress to raise a standing army and its

124 U.S.CONST. art. I, § 8, cl. 11-16. In these clauses, Congress may "declare War, ... raise and support Armies, ... provide

and maintain a Navy; ... make Rules for the Government and Regulation of the land and naval Forces; ... provide for calling forth

the Militia ... provide for organizing, arming, and disciplining, the Militia ...." See also Chappell v. Wallace, 462 U.S. 296, 301

(1983) (stating that the framers of the Constitution clearly contemplated that Congress have plenary authority over creation and

maintenance of military).

125 DOCUMENTARY HISTORY OF THE CONSTITUTION 560 (Dept. of State, 1900), reprinted in 3 DOCUMENTARY HISTORY

OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 1786-1870, at 560 (Johnson Reprint Corp. 1965).

126 Id. at 560, 599, 677, 746.

127 For a discussion of the debate concerning the military at the Constitutional Convention, see SAMUEL P.HUNTINGTON,

THE SOLDIER AND THE STATE 80-97, 345-46 (1957).

128 See U.S. CONST. art. I, § 8, cl. 12.

129 Akhil Amar argues that the Second Amendment also provides a linguistic gloss on Congress's Article I military

powers. An army constituted hired soldiers, unlike a militia that consisted of the general public. Consequently, Congress's power

to raise an "army" involves authority to enlist soldiers, not conscript them. See Akhil R. Amar, The Bill of Rights as a Constitution,

100 YALE L.J. 1131 (1991).

130 U.S. CONST. art. I, § 8, cl. 15 reserves to the states "the Appointment of the Officers, and the Authority of training

the Militia according to the discipline prescribed by Congress."

131 See 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 386 (Max Farrand ed., 1911) [hereinafter RECORDS].

power over the militia. As initially proposed, Congress was to be provided the power to raise

armies.124 Objections were raised that there was no check against standing armies in time of peace.125

The debate focused on how to avoid the dangers of a standing army; there was no dispute that a

standing army posed a significant threat to the liberty of the people.126 The dilemma was that some

type of national army would be necessary in time of war, but the results of waiting until war occurred

to raise a national army could be disastrous.127

The solution adopted was two-fold. First, Congress would have the power to raise an army

but no appropriation of money for that use could be for more (pg.1023) than two years.128 Because the

people controlled the House of Representatives and the Senate, and Congress controlled the purse,

the people were given an effective check against the dangers of a standing army. The second check

against the dangers of a standing army was provided by the existence of the militia. Again, however,

the necessity of providing for the common defense had to be satisfied while guarding against the

national government's abuse of power.

If the danger of a standing army was to be limited, the militia, which was then under the

control of the states, must be available to meet national emergencies until an adequate standing army

could be raised. Thus, the national government needed the power to call upon the militia.

Conversely, the existence of a militia independent of federal control was deemed necessary as a

check on the standing army which Congress was authorized to raise.129 The resolution was to provide

Congress with the power to organize, arm, and discipline the militia and to govern such parts as may

be called into federal service, but to reserve to the states the appointment of officers and actual

training of the militia.130 The drafters of this particular language hastened to point out that the power

to organize, arm, and discipline was intended only to allow Congress to prescribe the proportion of

men to officers, specify the kind and size of arms, ensure that men were armed in fact either by

themselves, the states, or by Congress, and to prescribe exercises.131 The States were to be in control

132 U.S. CONST. art. I, § 8, cl. 16 reserves "to the States respectively" the power to appoint the officers of any militia for

which Congress might provide and to conduct the "training [of] the militia according to the discipline prescribed by Congress."

133 LETTERS FROM THE FEDERAL FARMER TO THE REPUBLICAN (W. Bennett ed., 1978) [hereinafter FEDERAL FARMER].

134 The true author of the Letters from the Federal Farmer to the Republican is unknown. The traditional view is that

Richard Henry Lee of Virginia was the author. Steven R. Boyd argues that the overwhelming contemporary opinion was that Lee

was indeed the "Federal Farmer." See Steven R. Boyd, Impact of the Constitution on State Politics: New York as a Test Case, in THE

HUMAN DIMENSIONS OF NATION MAKING 270, 276 n.14 (J. Martin ed., 1976).

135 Letter from the Federal Farmer (Oct. 13, 1787), reprinted in 2 THE COMPLETE ANTI-FEDERALIST 251 (H. Storing ed.,

1981).

136 FEDERAL FARMER, supra note 133, at 13.

137 For Antifederalist attacks on standing armies, see, e.g., Essays by a [Maryland] Farmer, in 5 HERBERT J. STORING,

THE COMPLETE ANTI-FEDERALIST 22-28 (1981).

138 Id. at 21-22.

of the militia by reason of the power to appoint officers and provide for the actual training.132 The

national government would be in control of the militia only when the militia was called out for

national service and, even then, would have to rely on the State appointed officers to execute its

orders.

A. The Antifederalist View

Additional views on the relationship between freedom and arms were expressed when the

Constitution was being submitted to the states for ratification. The Antifederalist views were stated

in pamphlets entitled Letters (pg.1024) from the Federal Farmer to the Republican.

133 Richard Henry

Lee is credited with authorship.134 The self-styled federal farmer thought of himself as a supporter

of federalism and republicanism.135 His view of federalism was not that set forth in the proposed

Constitution of 1787. The federal farmer argued that a distant national government was antithetical

to freedom:

[T]he general government, far removed from the people, and none of its members elected

oftener than once in two years, will be forgot or neglected, and its laws in many cases

disregarded, unless a multitude of officers and military force be continually kept in view,

and employed to enforce the execution of the laws and to make the government feared and

respected. No position can be truer than this, that in this country either neglected laws, or

a military execution of them, must lead to revolution, and to the destruction of freedom.

Neglected laws must first lead to anarchy and confusion; and a military execution of laws

is only a shorter way to the same point—despotic government.136

The federal farmer also saw evil in Congress's power to raise an army, despite the two-year

limit on money appropriations and the states' control over the militia via the appointment of

officers.137 He understood the need to provide for the common defense but believed an additional

check was necessary. He proposed requiring two-thirds consent in Congress before a standing army

could be raised or the militia could be pressed into service by the national government.138

Additionally, the federal farmer argued that a select militia composed of less than all the people

139 Id. at 124.

140 3 THE PAPERS OF GEORGE MASON 1725-1792, at 1075 (Robert A. Rutland ed., 1970).

141 Id. at 1075, 1076.

142 Speeches by Patrick Henry Before the Virginia Ratifying Convention (June 5 & 7, 1788), reprinted in THE

ANTI-FEDERALIST PAPERS AND THE CONSTITUTIONAL CONVENTION DEBATES 199-216 (Ralph L. Ketcham ed., 1986).

143 Don B. Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH.L.REV. 204, 229

(1983).

144 See David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 YALE

L.J. 551 (1991).

145 Madison warned that the greatest danger to the constitutional order and to the liberty of the citizen was not the

possibility of a tyrant President, which he regarded as slight, but the risk that Congress would take over the powers of the other two

branches of government. "The accumulation of all powers, legislative, executive, and judiciary, in the same hands," Madison wrote,

"may justly be pronounced the very definition of tyranny." THE FEDERALIST No. 47, at 329 James Madison) (Tudor Publishing Co.

1937). Power "is of an encroaching nature," and something more than "parchment barriers" is required to restrict it "from passing

the limit assigned to it." Id., No. 48, at 321. The risk of congressional power is great, far greater than the risk from the President or

the courts. Congress "alone has access to the pockets of the people." Id. at 321, 323. Its supposed influence over the people is an

inducement to act, and it can expand its power in many ways, masking its encroachments "under complicated and indirect measures."

Id. at 323. Madison concluded that "it is against the enterprising ambition of this department that the people ought to indulge all their

jealousy and exhaust all their precautions." Id.

146 WILLIAM H. RAWLE, A VIEW OF THE CONSTITUTION 125-26 (2d ed. 1829). Alexander Hamilton saw the people's

possession of arms as guaranteeing freedom from state as well as from federal tyranny. The armed populace, "by throwing themselves

into either scale, will infallibly make it preponderate" against either a federal or a state invasion of popular rights. THE FEDERALIST

No. 28, at 228 (Alexander Hamilton) (John C. Hamilton ed., 1864).

ought to be avoided. The farmer argued that, 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.139

Another Antifederalist, George Mason, spoke on the relationship between (pg.1025) arms and

liberty. Mason asserted that history had demonstrated that the most effective way to enslave a people

is to disarm them.140 Mason suggested that divine providence had given every individual the right

of self-defense, clearly including the right to defend one's political liberty within that term.141

Patrick Henry argued against ratification of the Constitution by Virginia, in part because the

Constitution permitted a standing army and gave the federal government some control over the

militia.142 Henry objected to the lack of any clause forbidding disarmament of individual citizens;

"the great object is that every man be armed .... Everyone who is able may have a gun."143 The

Antifederalists believed that governmental tyranny was the primary evil against which the people

had to defend in creating a new Constitution. To preserve individual rights against such tyranny, the

Antifederalists argued for the addition of a Bill of Rights which included, among other rights, the

right to keep and bear arms.144

B. The Federalist View

The Federalists, those supporting the Constitution as drafted, did not dispute the premise that

governmental tyranny was the primary evil that people had to guard against.145 Nor did the

Federalists dispute the nexus between (pg.1026) arms and freedom.146 In one of the first Federalist

pamphlets, Noah Webster argued that the proposed Constitution provided adequate guarantees to

147 See STAFF OF SENATE SUBCOMM. ON THE CONSTITUTION,COMM. ON THE JUDICIARY, 97TH CONG., 2D SESS., REPORT

ON THE RIGHT TO KEEP AND BEAR ARMS 27 (Comm. Print 1982).

148 NOAH WEBSTER,AN EXAMINATION INTO THE LEADING PRINCIPLES OF THE FEDERAL CONSTITUTION PROPOSED BY THE

LATE CONVENTION HELD AT PHILADELPHIA 43 (Philadelphia 1787), reprinted in PAMPHLETS ON THE CONSTITUTION OF THE UNITED

STATES PUBLISHED DURING ITS DISCUSSION BY THE PEOPLE: 1787-1788, at 5 (Paul L. Ford ed., 1888).

149 At the convention, James Madison remarked:

As the greatest danger is that of disunion of the States, it is necessary to guard [against] it by sufficient

powers to the Common Govt. and as the greatest danger to liberty is from large standing armies, it is best to

prevent them, by an effectual provision for a good Militia.

JAMES MADISON,NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787, at 600 (Gouverneur Morris) (Ohio Univ. Press rev. ed.

1984).

150 THE FEDERALIST No. 46, at 310, 311 (James Madison) (Modern Library ed., 1937).

151 See ALEXANDER HAMILTON AND THE FOUNDING OF THE NATION (Richard B. Morris ed., 1957).

152 THE FEDERALIST No. 28 (Alexander Hamilton).

check the dangers of any standing army.147 His reasoning acknowledged checks and balances, but

did not rely on the same. Rather, Webster argued:

Before a standing army can rule, the people must be disarmed; as they are in almost every

Kingdom of Europe. The Supreme power in America cannot enforce unjust laws by the

sword; because the whole body of the people are armed, and constitute a force superior to

any bands of regular troops that can be, on any pretense, raised in the United States.148

Similarly, James Madison made clear that, although the proposed Constitution offered

sufficient guarantees against despotism by its checks and balances, the real deterrent to governmental

abuse was the armed population.149 To the Antifederalist criticism of the standing army as a threat

to liberty, Madison replied:

To these [the standing army] would be opposed a militia amounting to near half a million

of citizens with arms in their hands, officered by men chosen from amongst themselves,

fighting for their common liberties, and united and conducted by government 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 .... Besides

the advantage of being armed, which Americans possess over the people of almost every

other nation, the existence of subordinate governments, to which the people are

(pg.1027) 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.150

Another leading Federalist, Alexander Hamilton, voiced a similar view.151 Hamilton suggested that

if the representations of the people, elected under the proposed Constitution, betrayed their

constituents, the people retained the right to defend their political rights and possessed the means

to do so.152

In summary, both Federalists and Antifederalists believed that the main danger to the

republic was tyrannical government and the ultimate check on tyrannical government was an armed

153 See supra notes 133-52 and accompanying text.

154 The Antifederalist warnings of inevitable doom, which would follow granting the central government an army power,

were neutralized by a Federalist-proposed system of checks and balances that would prevent the army from usurping the power of

the elected government and oppressing the people. See The Address and Reasons of Dissent of the Minority of the Convention of

Pennsylvania to their Constituents (Dec. 18, 1787), reprinted in THE ANTI-FEDERALIST PAPERS AND THE CONSTITUTIONAL

CONVENTION DEBATES 254-56 (R. Ketcham ed., 1986). The minority feared that:

A standing army in the hands of a government placed so independent of the people, may be a fatal

instrument to overturn the public liberties; it may be employed to enforce the collection of the most oppressive

taxes, and to carry into execution the most arbitrary measures. An ambitious man who may have the army at his

devotion, may step up into the throne, and seize upon absolute power.

Id. at 254.

The Federalists advanced the contrary view, including Alexander Hamilton who argued that if the central government was

denied an army power then future generations would be unable to adequately protect themselves. THE FEDERALIST No. 23 (Alexander

Hamilton).

155 See 1 HERBERT J. STORING, THE COMPLETE ANTI-FEDERALIST: WHAT THE ANTI-FEDERALISTS WERE FOR 64-70, 72

(1981) (discussing the debate between Federalists and Anti-federalists over whether a constitution that based government on

republican principles needed a bill of rights to protect individual liberties).

156 Id.

157 Washington advised Lafayette: "There was not a member of the Convention, I believe, who had the least objection

to what is contended for by the Advocates for a Bill of Rights ...." 3 RECORDS, supra note 131, at 297-98.

158 THE FEDERALIST No. 84 (Alexander Hamilton).

159 See supra notes 113-21.

160 See PHILIP B. KURLAND & RALPH LERNER, THE FOUNDERS' CONSTITUTION (1987).

161 Reid v. Covert, 354 U.S. 1, 24 (1957) ("Their fears were rooted in history. They knew that ancient republics had been

overthrown by their military leaders.").

population.153 Federalists and Antifederalists disagreed, however, on several issues. First, they

disagreed as to whether sufficient checks and balances had been placed on the proposed national

government to control the danger of oppression.154 Second, the Antifederalists believed a bill of

rights should be incorporated into the Constitution to guarantee certain rights.155 The Federalists

argued that such a bill of rights was unnecessary because the power of the federal government was

restricted to the grant of authority provided by the Constitution.156 There was no need to

(pg.1028) provide exceptions to powers not granted.157 Further, the Federalists argued that providing

exceptions to powers not granted was dangerous because it could encourage a claim that powers not

expressly stated had been granted.158 Again, both sides not only agreed that the people had a right

to be armed, both sides assumed the existence of an armed population as an essential element to

preserving liberty. The framers quite clearly had adopted James Harrington's political theory that the

measure of liberty attained and retained was a direct function of an armed citizenry's ability to claim

and hold those rights from domestic and foreign enemies.159

V. THE RATIFICATION PROCESS

The Federalist and Antifederalist pamphlets were written to influence the ratification process

by which the proposed Constitution would become effective.160 In addition to revealing the drafters'

political philosophy, the pamphlets and other documents intended to influence ratification reveal

additional concerns with the right to bear arms.161 Antifederalists rejected the claim that the militia

162 Instead of a standing army providing for the nation's defense, the Antifederalists advocated the use of a well-regulated

militia maintained by each state. These militia would be under the state governor's control but subject to requisition by the national

government in time of need. The prevailing sentiment was that:

The standing army with its upper-class officers and lower-class enlisted men was basically an aristocratic

institution. It was associated with the British Crown and with European despotism. It was quite unnecessary in

the eyes of many Americans. The distance of the United States from Europe meant that it required no permanent

military force with the possible exception of small frontier garrisons to deal with the Indians. Consequently, it

was generally agreed that primary reliance must be put on a citizen militia composed of part-time officers and

enlisted men.

HUNTINGTON, supra note 127, at 166-67.

163 Virginia's Richard Henry Lee argued that select militia might be used to disarm the population and that, in any event,

it would pose more of a danger to individual liberty than a militia composed of the whole population. He charged that a select militia

"commit the many to the mercy [and the] prudence of the few." Richard Henry Lee, LETTERS FROM THE FEDERAL FARMER:LETTER

III (Oct. 10, 1787), reprinted in THE ANTIFEDERALISTS 229 (Cecelia M. Kenyon ed., 1966).

164 See RUDOLF CRONAU, THE ARMY OF THE AMERICAN REVOLUTION AND ITS ORGANIZER (1923).

165 See MAX FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES (1913).

166 The Federalist Papers, a collection of some 85 newspaper essays, was written between October 1787 and May 1788

by Alexander Hamilton, James Madison, and John Jay to persuade the New York state ratifying convention to adopt the Constitution.

A standard critical edition in use today is THE FEDERALIST PAPERS (Clinton Rossiter ed., 1961).

167 For example, in THE FEDERALIST No. 23, Publius addressed the need to adopt a constitution "at least equally energetic

with the one proposed," relying upon the "[d]efective" nature of the Articles of Confederation. THE FEDERALIST No. 23, at 143, 146

(Alexander Hamilton) (Modern Library ed. 1941). The argument was frequently reiterated. See id. No. 15, at 93 (Alexander

Hamilton); id. No. 22, at 140 (Alexander Hamilton); id. No. 26, at 164-65 (Alexander Hamilton).

168 See 1 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION AS

RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA, IN 1787, at 327-31 (Jonathan Elliot ed., 2d ed. 1836) [hereinafter

STATE DEBATES].

would serve as a deterrent to the threat posed by a standing army.162 The responsive argument widely

made was that Congress might be able to confine the existing militia force, all armed citizens, to a

select militia made up of a small segment of the population.163 Baron Von Steuben,

(pg.1029) Washington's Inspector General, had already proposed such a force.164 The fear was that

creation of a select militia, armed by and loyal to the federal government, would be accompanied

by disarmament of the people in general.

A. The State Conventions

All of the arguments for and against ratification came to bear in the state conventions.165 In

New York, Hamilton advocated adopting the Constitution and amending it, if necessary.166

Hamilton's argument was that if amendments were to be made, they ought to be made after adoption

since an alteration would constitute a new proposal and must undergo a new decision in each state.167

Hamilton's argument prevailed. New York ratified the Constitution, but it included with the

ratification statement a declaration of rights and a statement that ratification was made with the

assumption that the rights enumerated in the declaration could not be abridged or violated and were

consistent with the Constitution.168 Accordingly, New York ratified, but made clear that the people

had a right to keep and bear arms and that the militia was to include all the people capable of bearing

arms, not just a select few.

Similarly, New Hampshire ratified the Constitution but stated:

169 See DOCUMENTS ILLUSTRATIVE OF THE FORMATION OF THE UNION OF THE AMERICAN STATES, H.R. DOC. NO. 398,

69th Cong., 1st Sess. 1007 (1927).

170 3 STATE DEBATES, supra note 168, at 626-27; 2 STATE DEBATES, supra note 168, at 436.

171 The classic formulations of the mischief feared by inclusion of a bill of rights are found in the speech by James Wilson

before the Pennsylvania ratifying convention. LEONARD W. LEVY, ORIGINAL INTENT AND THE FRAMERS' CONSTITUTION 270-72

(1988).

172 PA. CONST. of 1776, Declaration of Rights, art. XIII.

173 See 2 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 665 (1975).

174 Id. at 675.

175 Id.

176 See William S. Fields & David T. Hardy, The Militia and the Constitution: A Legal History, 136 MIL. L. REV. 1, 36

(1992) (discussing the unusual alignment in Virginia where liberals like Thomas Jefferson, Patrick Henry, and Richard Henry Lee

joined forces with conservatives like George Mason to promote a bill of rights). The Virginia Proposals for a bill of rights were

drafted by a committee that included Antifederalists Lee and Mason, as well as Federalists James Madison, John Marshall, and

George Wythe.

It is the Opinion of this Convention that certain amendments & alteration in the said

Constitution would remove the fears and quiet the apprehensions of many of the good

people of this State & more effectually guard against an undue Administration of the

Federal Government—The Convention do therefore recommend that the (pg.1030) following

alterations & provisions be introduced into the said Constitution.

...

Twelfth

Congress shall never disarm any citizen unless such as are or have been in Actual

Rebellion.169

In Pennsylvania, James Wilson argued against adding a bill of rights on grounds already

offered by Madison,170 that such an enumeration was unnecessary and indeed dangerous since no

person could enumerate all the rights of men.171 Pennsylvania ratified, but a substantial minority

drafted a series of proposed amendments that included the following:

That the people have a right to bear arms for the defense of themselves and their own State

or the United States, or for the purpose of killing game; and no law shall be passed

disarming the people or any of them unless for crimes committed, or real danger of public

injury from individuals.172

It is doubtful that the Pennsylvania minority was attempting to constitutionalize hunting as a sport.173

Rather, the delegates were attempting to eliminate the possibility that game laws, used effectively

in England at different points to disarm the population, would not produce a similar result in

America.

Samuel Adams made similar arguments in Massachusetts.174 The argument that adoption

must precede amendment prevailed.175 In Virginia, Madison secured ratification, but George Mason,

Patrick Henry, and Richard Henry Lee were successful in having the convention adopt a Declaration

of Rights which was to be recommended to the First Congress for adoption as constitutional

amendments.176 The right of the people to keep and bear arms (pg.1031) was included as was the

177 The Virginia convention urged the adoption of the following language:

That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of

the people trained to arms, is the proper, natural, and safe defence for a free state; that standing armies, in time

of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection

of the community will admit; and that in all cases, the military should be under strict subordination to, and

governed by, the civil power.

3 STATE DEBATES, supra note 168, at 659.

178 N.C. Proposal for a Declaration of Rights, § 19, in 4 STATE DEBATES, supra note 168, at 244.

179 N.C. CONST. of 1776, Declaration of Rights, art. XVII.

180 In August 1788, the North Carolina Convention refused to ratify the Constitution by a greater than two to one

majority. The vote is recorded in 4 STATE DEBATES, supra note 151, at 250-51. North Carolina did not ratify until November 1789.

ROBERT A. RUTLAND, THE ORDEAL OF THE CONSTITUTION: THE ANTIFEDERALISTS AND THE RATIFICATION STRUGGLE OF 1787-88,

at 250-51 (1966).

181 Id.

182 See 1 STATE DEBATES, supra note 168, at 331-37.

183 See Lawrence D. Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71 J. AM. HIST.

22, 31 (1984).

184 See Patrick Conley, First in War, Last in Peace: Rhode Island and the Constitution, 1786-1790, in THE CONSTITUTION

AND THE STATES: THE ROLE OF THE ORIGINAL THIRTEEN IN THE FRAMING AND ADOPTION OF THE FEDERAL CONSTITUTION 276-85

(Patrick Conley & John P. Kaminsky eds., 1988).

185 See Stephen P. Halbrook, The Right to Bear Arms in the First State Bills of Rights: Pennsylvania, North Carolina,

Vermont, and Massachusetts, 10 VT. L. REV. 255 (1985).

statement that a militia composed of the body of the people was the natural and safe defense of a free

state.177

North Carolina's convention proposed that a declaration of rights be added to the Constitution

which explicitly identified the right of people to keep and bear arms as a natural right and one of the

means necessary to the pursuit and obtainment of happiness and safety.178 Identification of the right

was accompanied by the statement that the militia, composed of the body of the people, trained to

arms, is the natural and safe defense of a free state.179 The North Carolina convention refused to

ratify the Constitution until the document included this and other rights.180 North Carolina did not

ratify the Constitution until the Bill of Rights was drafted and submitted to the States.181 Rhode

Island followed an identical course by identifying the right of the people to keep and bear arms as

a natural right, among others, and declining to ratify the Constitution until after the Bill of Rights

had been drafted and submitted.182

To summarize the state ratification process, three states, New York, New Hampshire, and

Virginia, ratified while expressing their understanding that the people had a right to bear arms and

that Congress would never disarm law abiding citizens.183 Two states, North Carolina and Rhode

Island, refused to ratify until individual rights, including the people's right to keep and bear arms,

(pg.1032) were recognized by amendments.184 In Pennsylvania and Massachusetts, an effort was made

to amend or condition ratification on amendment to include, among others, the right to keep and bear

arms.185 Efforts to amend were defeated but not on the merits. There is no evidence from any state

convention that any speaker suggested that the proposed Constitution would permit disarming the

public.

B. The Framers' Views of the States and Their Role

186 The United States expanded its rulers' powers when it adopted the Constitution in place of the Articles of

Confederation. See GERALD GUNTHER, CASES AND MATERIALS ON CONSTITUTIONAL LAW 77 (12th ed. 1991).

187 See Harold G. Maier, The United States Constitution in its Third Century: Foreign Affairs: Distribution of

Constitutional Authority: Preemption of State Law: A Recommended Analysis, 83 AM. J. INT'L L. 832, 832 (1989).

188 JACKSON T. MAIN, THE ANTIFEDERALISTS: CRITICS OF THE CONSTITUTION, 1781-1788 (1961).

189 See, e.g., Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1452 (1987).

190 Baron de Montesquieu (1689-1755) was a French political philosopher who classified various forms of government

and their attributes. His ideas were well-regarded by the Americans; Jefferson once wrote that in economics, Adam Smith is generally

recommended, in politics and government, Montesquieu's treatises held equal stature. "To Mr. Thomas Mann Randolph, New York,

May 30, 1790," in 8 THE WRITINGS OF THOMAS JEFFERSON 31 (Memorial ed. 1903).

191 MONTESQUIEU, THE SPIRIT OF LAWS, bk. VIII, ch. 16, at 176 (David W. Carrithers ed., 1977).

As discussed earlier, one of the disputes between the Federalists and Antifederalists related

to the relative strength that ought to be given to the central government. Prior to adoption of the

Constitution, the country was ruled by the Articles of Confederation.186 These articles preserved the

autonomy of the individual states and provided little power to the central government.187 The

proposed Constitution altered this balance in favor of the central government. The proposed change

provoked substantial discourse.188 In recent times, the Antifederalists have been called states' rights

proponents as a consequence of their position that the proposed Constitution provided too much

power to the central government, with too few checks, at the expense of the states.189

This label—states' rights proponents—is inaccurate and misleading. Federalists and

Antifederalists feared governmental tyranny by all governments—state and federal. The framers of

the Constitution, particularly the Antifederalists, were not attempting to preserve states' rights. They

were attempting to preserve the people's rights by maintaining local autonomy in the form of the

various state governments.

The Antifederalists relied extensively on the works of Baron de (pg.1033) Montesquieu to

support the proposition that the geographic size of an area strongly influenced its form of

government.190 Montesquieu had written democracy could survive only in a small-sized state, small

enough to permit the actual participation of the people in government and small enough so that each

citizen understands that promoting the public good directly promotes the individual.191 A

middle-sized territory, as Montesquieu terms it, would inevitably become a monarchy; to an

extensive territory, a despotic form of government was best adapted. In large republics, the public

good is sacrificed to a multiplicity of views and the citizens do not perceive the nexus between

promoting the public good and their individual welfare.

According to Montesquieu, a middle-sized territory would tend to become a monarchy

because ambitious persons who do not perceive the public good as beneficial to them seek grandeur

by imposing their will on others. One person eventually prevails and assumes the role as prince. The

monarchy then exists through a system of honor established by giving perks and titles. If the territory

is too large, one person cannot command sufficient allegiance on honor of enough of the populace

to control the territory. Ruling a large territory requires more than a system of titles and perks. Order

can be maintained only by immediate, passive obedience to the rules; passive obedience can be

achieved only by an instilling fear. The multiplicity of views, the dissents, are stifled by fear.

192 Id. at bk. IX, ch. 1, p. 183.

193 Id.

194 THE ANTIFEDERALISTS 40 (Cecelia M. Kenyon ed., 1966).

195 Id.

196 Id. at 40-41.

197 Id. at 63.

According to Montesquieu, rule by fear, despotism, was a logical incident of the government of a

large territory. Montesquieu's theory continued that while a small republic could internally maintain

its republican character, it would be destroyed by foreign forces.192 The dilemma could be resolved

only by a confederate republic, a form of government in which small states become individual

members of an association which is able to provide security for the whole body.193

The Antifederalists used Montesquieu's well-known works to argue for a less powerful

central government and more autonomy for the individual states, a government which would more

closely resemble the Articles of Confederation model and Montesquieu's confederate republic rather

than that proposed by the Constitution. Antifederalist publications confirm that preserving the

autonomy of the states was a means to the end of protecting the people's rights, not an end (pg.1034) in

itself. In arguing against the new Constitution, the Pennsylvania Minority framed the question—"Is

it probable that the dissolution of the state governments, and the establishment of one consolidated

empire would be eligible in its nature, and satisfactory to the people in its administration?"194

The answer— "I think not, as ... so extensive a territory could not be governed, connected and

preserved, but by the supremacy of despotic power."195

The reason— Being "satiated with the blessings of liberty" after "asserting their inalienable rights

against foreign despots at the expense of so much blood and treasure," the

people will spurn the shackles prepared for them under the new Constitution

and confirm their liberties.196

Although the complaint was the dissolution of state governments, the problem was viewed as a loss

of the people's rights.

In another publication, an unidentified Pennsylvania Antifederalist, writing under the pen

name Montezuma, purported to be an advocate of the Constitution and to give the "inside story" of

the dark designs of the proponents. Montezuma suggested:

We have taken pains to leave the legislatures of each free and independent state, as they now

call themselves, in such a situation that they will eventually be absorbed by our grand

continental vortex, or dwindle into petty corporations, and have power over little else than

yoaking logs, of determining the width of cart wheels.197

Montezuma continued that state legislatures would be powerless when the national government

exercised exclusive control over commerce and the power to wage war, make peace, coin money,

198 Id. at 64.

199 Id.

200 Id. at 104-05.

201 One leading Antifederalist shared and advocated this view. Mason argued that the people's political happiness rested

on the state governments because the states, as smaller political units, provided more direct representation of the people. THE

ANTIFEDERALISTS, supra note 194, at 272.

202 3 THE PAPERS OF GEORGE MASON 1052 (Robert A. Rutland ed., 1970).

203 THE FEDERALIST No. 10 (James Madison).

204 FEDERAL & STATE CONSTITUTIONS OF THE UNITED STATES (Ben Poore Perley ed., 1924); Maryland, 817;

Massachusetts, 956; New Hampshire, 1279; New Jersey, 1310 (religion); New York, 1329; North Carolina, 1409; Pennsylvania,

1540; South Carolina, 1640; Virginia, 1910.

205 Id.; Maryland, 817; Massachusetts, 956; New Hampshire, 1279 (Bill of Rights added 1784); New Jersey religion; New

York, 1329 (militia, religion); North Carolina, 409; Pennsylvania, 1540; Virginia, 1910.

206 Id.; Massachusetts, 956; Maryland, 817; New Hampshire, 1279; New Jersey, 1310; New York, 1329; North Carolina,

1409; Virginia, 1910.

borrow money, organize the militia and call them forth to crush insurrections.198 By eliminating the

powers of the states, the clouds of popular insurrection would likewise be broken.199

Another Antifederalist writer, using the name John DeWitt, posed similar arguments to the

people of Massachusetts to influence the ratification convention (pg.1035) in that state. The writer,

whose true identity is unknown, argued that the strong national government would swallow up the

state governments in a hasty stride to a Universal Empire in the Western World. The predicted result

was a loss of the people's liberty.200 Again, the Antifederalist argument was that retention of power

by the states was necessary to secure the rights of the people.201

The Antifederalists, while believing the people's rights would be protected best by strong

state governments, did not trust those governments. Federalists also distrusted state governments.

Both groups distrusted any government because, as George Mason stated, "considering the natural

lust of power so inherent in man, I fear the thirst of power will prevail to oppress the people."202

James Madison similarly distrusted not only man's ambition for pre-eminence and power but also

the factionalism posed by groups of men organized and pursuing narrow interests under the banner

of state government.203

The Revolutionary era and state constitutions illustrate the distrust of the states' power. It

should not be surprising that Americans in the midst of a revolution against tyranny would be

suspicious of government, particularly when dealing with plans for their own government. As a

consequence, most of the state constitutions of the era vested primary governing authority in a

popularly elected legislative branch of government, not the executive,204 and contained a statement

for a bill of rights.205 All contained a statement that all power originally rests in the people.206 The

state constitutions of Massachusetts, North Carolina, and Pennsylvania contained an explicit

provision concerning the right to bear arms. The constitutions of Maryland, New Hampshire, New

York, and Virginia identified the necessity of maintaining the militia to preserve the free state. New

York's constitution, while providing for a militia but not a right to bear arms, also noted that Quakers

could not be compelled to bear arms. (pg.1036) Similarly, Maryland, New Hampshire, and Virginia

provided for a militia but not explicitly for the right to bear arms. They also provided for popular

207 Id.; New Hampshire, 1279.

208 Id.; Maryland, 818; Virginia, 1909.

209 EDWARD DUMBAULD, THE BILL OF RIGHTS AND WHAT IT MEANS TODAY 33 (1957).

210 Hardy, Armed Citizens, supra note 12, at 609.

211 Id.

revolt by giving the people the right to reform the government and the right to defend their life and

liberty207 and by providing that the doctrine of non-resistance against arbitrary power is slavish,

absurd, and destructive.208 In context, providing for the militia, defined at this time as the body of

people all bearing arms, appears to be the functional equivalent of providing each individual with

the right to bear arms.

VI. THE BILL OF RIGHTS

With ratification complete and the First Congress assembled, James Madison introduced

amendments setting forth what would eventually become the Bill of Rights. The ratification process

had produced a call for such a declaration. Madison and Hamilton had argued that ratification must

precede amendment and now the time had come to honor the implied promise that amendments

would be made. Madison campaigned for a seat in the first Congress on the pledge that he favored

amendments.209

Madison's first proposal was made on June 8, 1789, to the House of Representatives. It

embodied nineteen substantive items and appeared to track the suggestions made by the various state

conventions. Madison's first proposal was not in the form of a separate Bill of Rights. Instead, he

proposed amendment by interlineation, placement of the individual amendments in the text of the

Constitution. One of the proposed amendments was "that 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 conscientious objector shall be compelled to render military service in person."210

Madison's proposal called for this right and the right to freedom of the press, religion, and speech,

to be inserted in Article 1, Section 9, between clauses 3 and 4. Article 1, Section 9 concerns

limitations on Congress's power over citizens, namely, no suspension of habeas corpus, no ex post

facto laws, and no bills of attainder. Madison's suggested placement of this amendment demonstrates

that he understood the right to bear arms to be an individual right. Had Madison viewed the right as

the states' right, the more logical placement of the right would have been in Article 1, Section 8,

clause 16, which reserves to the states the power to appoint the officers of the militia and provides

authority to train the same.(pg.1037)

In addition, Madison's notes regarding the introduction of his proposals contain an outline

which suggests he should read the amendments and explain that they first relate to private rights. He

then instructed himself to explain the deficiencies of the English Declaration of Rights. Among the

deficiencies was that the declaration was a mere act of Parliament and that guarantees were not

sufficiently broad, namely, no freedom of press or conscience and the restriction of arms to

Protestants.211

212 THE FOUNDERS CONSTITUTION 211 (Philip B. Kurland & Ralph Lerner eds., 1987).

213 Id.

214 See WILLIAM MILLER, THE FIRST LIBERTY 123 (1986).

215 The House labeled its sections of what became the Bill of Rights as "articles." See Mark P. Denbeaux, The First Word

of the First Amendment, 80 NW. U. L. REV. 1156, 1166 (1986).

216 DUMBAULD, supra note 209, at 46.

217 The Senate did so without explanation. See Hardy, Armed Citizens, supra note 12, at 611.

218 Of the two amendments that were defeated, one concerned the apportionment of representatives, and the other would

have prevented congressional salary increases from taking effect until after the next election of representatives. Peter Suber,

Population Changes and Constitutional Amendments: Federalism Versus Democracy, 20 U. MICH. J. L. 409, 440 (1987). The ten

amendments that were ratified became the Bill of Rights in 1791. Maeva Marcus, The Adoption of the Bill of Rights, 1 WM.&MARY

BILL OF RIGHTS J. 115, 118 (1992).

219 U.S. CONST. amend II.

Madison's proposals were referred to a select committee that reported to the House sitting

as a committee of the whole. When the proposal left the select committee, it read:

A well regulated Militia, composed of the body of the people, being the best security of a

free state, the right of the people to keep and bear arms shall not be infringed; but no person

religiously scrupulous shall be compelled to bear arms.212

In the House, the debate focused on the last clause. The argument was as follows:

Mr. Gerry — This declaration of rights, I take it, is intended to secure the people against the

maladministration of the Government; if we could suppose that, in all cases, the rights of

the people would be attended to, the occasion for guards of this kind would be removed.

Now, I am apprehensive that this clause would give an opportunity to the people in power

to destroy the Constitution itself. They can declare who are those religiously scrupulous and

prevent them from bearing arms.213

An amendment to remove the "religiously scrupulous" language failed.214 Madison yielded to

pressure to set forth amendments at the end of the Constitution. Seventeen articles of amendment

were sent to the Senate.215

The Senate streamlined the package by combining some amendments and simplifying others.

On the right to bear arms, the Senate omitted the words "composed of the body of the people" and

deleted the provision exempting (pg.1038) conscientious objectors from service.216 The Senate rejected

language that would have added the words, "for the common defense" as part of the phrase "the right

of the people to keep and bear arms (for the common defense) shall not be infringed."217 Ultimately

twelve articles were sent to the states for ratification. The first two failed, but the other ten were

ratified.218 The language of the Second Amendment, as adopted, read:

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.219

VI. CONCLUSION

English history made two things clear to the American revolutionaries: force of arms was the

only effective check on government, and standing armies threatened liberty. Recognition of these

premises meant that the force of arms necessary to check government had to be placed in the hands

of citizens. The English theorists Blackstone and Harrington advocated these tenants. Because the

public purpose of the right to keep arms was to check government, the right necessarily belonged

to the individual and, as a matter of theory, was thought to be absolute in that it could not be

abrogated by the prevailing rulers.

These views were adopted by the framers, both Federalists and Antifederalists. Neither group

trusted government. Both believed the greatest danger to the new republic was tyrannical

government and that the ultimate check on tyranny was an armed population. It is beyond dispute

that the second amendment right was to serve the same public purpose as advocated by the English

theorists. The check on all government, not simply the federal government, was the armed

population, the militia. Government would not be accorded the power to create a select militia since

such a body would become the government's instrument. The whole of the population would

comprise the militia. As the constitutional debates prove, the framers recognized that the common

public purpose of preserving freedom would be served by protecting each individual's right to arms,

thus empowering the people to resist tyranny and preserve the republic. The intent was not to create

a right for other (pg.1039) governments, the individual states; it was to preserve the people's right to a

free state, just as it says.

Now I am not looking to get into an argument here with those that are anti-gun (I will have a civil debate with you though) and I do agree that change is needed.

The biggest issue is not the guns or gun ownership it is the criminal element and how it is addressed (or lack there of). The US currently has over 20,000 Federal Laws, regulations and notations on gun ownership, handling, sales and other gun related related issues; this does not include the number of the same Laws etc. in each state in addition to the Federal ones.

The change that is needed is not the addition of more laws or "stricter" gun laws; it is the reformation of the current standing amount of laws we have, condensing and enforcing laws that make sense and applying consequences that fit the bill just like any other situation. People focus on guns to much and do not lay the blame in the right direction. The commit a gun crime is the same as any other crime, the individual the commits the crime and why they do it. I can kill 10 people with 10 arrows almost as fast as I can kill 10 people with a gun its all down to point and shoot and how much ammo I chose to carry. Now somebody is going to attempt to call me out and say 'oh you cant do a comparison that way as arrow are not he same a bullets" hmm really? I can do more damage with the right arrow than I can with bullet. Even in the right situation I can can kill 10 random people in 10 minutes with a knife with practice. The amount of situations and weapons is endless for me to use. It just takes the right person, the mindset and will to do it to get the job done. If I wanted to kill say more than 10 I just make a bomb that is relatively easy to make (and no I will not under any circumstance admit to how it can be done). Nothing I have listed is out of a movie or some fantasy it is real world.

Below is several types of hunting arrow heads designed to cause massive damage and bleed out to drop a deer 150lb+ (60kg+) or whatever else you chose to hunt inside a few seconds. Think I am wrong? and there are other types some larger.

crossbowbroadheads.jpg

People need to get a grip and stop focusing of the means of the killings and focus on why, the who and how it can be prevented. Capital punishment a way to this means, I am not saying this is the only way. What I am saying is that we need to find a way to fit the punishment to fit the crime, a way to discourage those from doing the act. But the thing is that those who want to, will no matter what will go through the act as they have no fear of the consequences be it religious, mental, blackmail, etc.

Focusing on gun bans does not solve the issue, another means will replace that one, and that will be banned (wash, rinse, repeat).

People will continue to think and espouse the opinion that the weapons are the problem [but the fact is that Any Thing is a weapon including people; which is the most dangerous weapon] and the circle continues till rocks are banned and though what I just explained, to no end will there be those that will want to continue the argument because they cannot see the forest for the trees and vise versa. I have said what I can on this multiple times in several different threads (and real life) but it will only make sense only to those willing to open their minds to reason and logic and see past preconception, outer influence and themselves to understand properly.

Making unfounded and stupid comments about Americans and their "gun toting" populace is not only ignorant but down right dis-respectful. It is also generalizing and profiling which doing exactly what those espouse what not to do. If I made such comments about other countries not only would I receive immediate hate for it but I would be in the wrong.

I do not make such comments about your countries and I don't make unintelligent comments about how your countries are ran. I will in good manner make informed intelligent remarks about current or past events. If people cannot be respectful then don't bother posting, your opinion can be displayed for all to see but don't make a fool of yourself for no reason. Be responsible for your thoughts and be respectful.

TL/DL: None <--- If you really need this to get the point ... I don't how to help.

My apologies to the mods if I went overboard at the end.

[SirRoderick]

About how much longer would you say you have before your government enslaves you because you dont have guns to defend yourself from them? A lot of people here tell me we're a hairs breadth away from that and I wanna know how it is for other people who dont worship guns like we do.

Okay, I'm not going to pick sides on the gun control debate as I live in Belgium and here's it's a moot point anyway (basically, no-one gets guns)

 

However, this is a completely wonky argument in favour of open gun policies. Are you seriously asking me what I'm going to do against the people with Tanks, bombers, drones and a goddamn professionally trained army if they decide to go stomp my ass? I'm sure my shotgun will save me from that. Absolutely I will stop a Squad of troopers supported by an Apache with my AR-15.

[alpenwasser]

Okay, I'm not going to pick sides on the gun control debate as I live in Belgium and here's it's a moot point anyway (basically, no-one gets guns)

 

However, this is a completely wonky argument in favour of open gun policies. Are you seriously asking me what I'm going to do against the people with Tanks, bombers, drones and a goddamn professionally trained army if they decide to go stomp my ass? I'm sure my shotgun will save me from that. Absolutely I will stop a Squad of troopers supported by an Apache with my AR-15.

Must admit, I have wondered about that too. I don't exactly see how my 9 mm, or even an assault rifle, is going to protect me from an air strike or an artillery barrage. I mean, yeah, when I was in the army we also did some training exercises about guerilla warfare, and that could make life quite difficult for me and my soldiers as infantry folks, but still, even guerilla warfare requires a lot more than guns and ammo to be successful, and even then, chances aren't exactly that great. Things were a lot different back in the days of muskets and front-loading rifles, the advantage of a professional army wasn't quite as severe as it would be today.

EDIT:

I mean, it's not that I necessarily have a lot of trust in the government and wouldn't appreciate some way to push back if they come at me in force and without good cause, but I'm honestly not sure how that could be achieved, given the capabilities of modern armies, or hell, even some police forces which are basically armies at this point.

/EDIT

Still, I like my guns and going shooting with them, although at the moment I don't get to do it much because it's pretty expensive and I need to spend my money elsewhere.

EDIT: 8 pages and this isn't a full-out flamewar? Nice going, guys!

Edited January 21, 2016 by alpenwasser

[SansVarnic]

Okay, I'm not going to pick sides on the gun control debate as I live in Belgium and here's it's a moot point anyway (basically, no-one gets guns)

 

However, this is a completely wonky argument in favour of open gun policies. Are you seriously asking me what I'm going to do against the people with Tanks, bombers, drones and a goddamn professionally trained army if they decide to go stomp my ass? I'm sure my shotgun will save me from that. Absolutely I will stop a Squad of troopers supported by an Apache with my AR-15.

 

 

Must admit, I have wondered about that too. I don't exactly see how my 9 mm, or even an assault rifle, is going to protect me from an air strike or an artillery barrage. I mean, yeah, when I was in the army we also did some training exercises about guerilla warfare, and that could make life quite difficult for me and my soldiers as infantry folks, but still, even guerilla warfare requires a lot more than guns and ammo to be successful, and even then, chances aren't exactly that great. Things were a lot different back in the days of muskets and front-loading rifles, the advantage of a professional army wasn't quite as severe as it would be today.

EDIT:

I mean, it's not that I necessarily have a lot of trust in the government and wouldn't appreciate some way to push back if they come at me in force and without good cause, but I'm honestly not sure how that could be achieved, given the capabilities of modern armies, or hell, even some police forces which are basically armies at this point.

/EDIT

Still, I like my guns and going shooting with them, although at the moment I don't get to do it much because it's pretty expensive and I need to spend my money elsewhere.

EDIT: 8 pages and this isn't a full-out flamewar? Nice going, guys!

 

 

Are you seriously going sit there and say that in the case of say a revolution takes place in the USA (for example) that 100% of the military will stand on the governments side? I am not attempting to be aggressive here.

 

I can tell you from experience that most soldiers (and also there were some polls taken but I cannot link them unfortunately) that show that 85-93% of US soldiers would not be willing to open fire or march on US citizens if the US Government decided to take a stance to remove the 2nd amendment from the constitution and a civil war scenario broke out because of it. Pretty hard to fight an army if the army is on your side. As for the statistic from my mentioned poll the lowest number of the questions was 74% and highest was 93% refusal to stand against the people/citizens.

 

just sayin.

 

*edit

I cannot link the polls because it is information that was available to me when I was still serving in the Army, I don't have access to that anymore. Sorry.

Edited January 21, 2016 by SansVarnic

[stconquest]

Are you seriously going sit there and say that in the case of say a revolution takes place in the USA (for example) that 100% of the military will stand on the governments side? I am not attempting to be aggressive here.

 

I can tell you from experience that most soldiers (and also there were some polls taken but I cannot link them unfortunately) that show that 85-93% of US soldiers would not be willing to open fire or march on US citizens if the US Government decided to take a stance to remove the 2nd amendment from the constitution and a civil war scenario broke out because of it. Pretty hard to fight an army if the army is on your side. As for the statistic from my mentioned poll the lowest number of the questions was 74% and highest was 93% refusal to stand against the people/citizens.

 

just sayin.

 

*edit

I cannot link the polls because it is information that was available to me when I was still serving in the Army, I don't have access to that anymore. Sorry.

 

IDK about that.  The effective murder rate of many police divisions in the US is pretty damn high.  Given incentive (money, money, money), I would not be so confident on my fellow americans.

 

http://www.democraticunderground.com/10027483722

 

Forgive the source, I just grabbed one quickly.