18-01-2013, 06:38 PM (This post was last modified: 18-01-2013, 07:09 PM by Peter Lemkin.)
In the interest of full disclosure, I have generally in my life been against the unfettered 'right to bear arms' [unless, as it was originally proposed and written, for a militia]. I also had as a teen often had been in summer camps where I shot .22 rifles at targets [and was damn good at it]; at one time I owned a Mannlicher-Carcanno and one other rifle that LHO was said to have used. My feelings about guns, generally owned, are complex and have changed with time. Those who I agree with politically who feel they want/need weapons to defend against a rouge government and police/military/intelligence network are different than how I feel about those I totally disagree with politically, and are neo- or full-out fascists, and feel they want weapons to defend against the government and other 'enemies', as they perceive it. I think there are too many weapons in the USA [in the hands of the Police, Military, Intelligence and Populace -generally], and that they are part of the problem....more so in inner cities than other places, but not exclusively. I will have more to say later in this thread, perhaps. My own feelings are not that important....I thought, however, a discussion of this important/archaic amendment and 'way of thinking' is especially important in America today - and that the following article might be an apt place for starting the discussion....
Currently, here in Europe, I own no guns [highly illegal here, and dramatically fewer gun deaths accordingly]. This also coincides with my current feelings about citizen owned weaponry - at least here, where I now live. Also, as a lifelong committed pacifist I strongly believe all weapons and warfare/disobedience/resistance to TPTB of all types should be only defensively and never offensive [unless there is NO OTHER alternative left]....but I perhaps get ahead of myself.
NRA's Firm Gun Stance Planted in 1960s U.S. Unrest
17th January 2013
By Lewis Diuguid
Kansas City Star, January 11, 2013
medium NRAs Firm Gun Stance Planted in 1960s U.S. UnrestFear keeps causing gun sales to spike.
The 2008 election of Barack Obama as president started it with people afraid that the new president would take away their guns. Since then, 67 million firearms have been sold in the U.S. The Kansas City Star reports that the number exceeds what had been purchased in the previous seven years.
Keep in mind that threats against the president also have spiked, including one gunman taking a pot-shot at the White House. That had never happened before.
Recurring mass shootings in this country continue to spur sales as gun advocates fear a government clampdown on individuals' ability to purchase whatever weapon they want whenever and wherever they want. Vice President Joe Biden's intent on recommending by Tuesday to President Obama gun control measures is certain to cause gun sales to spike anew.
Count on gun-hungry customer traffic being up Saturday and Sunday at the Gun-Knife Show at the KCI Expo Center, 11730 N. Ambassador Drive. Parking there will be a nightmare.
The Violence Policy Center in an article on the Web notes that the assassinations of President John F. Kennedy, the Rev. Martin Luther King Jr., Sen. Bobby Kennedy and rioting in the civil rights era in the 1960s pushed the pro-gun National Rifle Association into a corner, resulting in meaningful gun control legislation.
The article said:
"On March 8, 1965, President Lyndon B. Johnson, linking "the ease with which any person can acquire firearms" to the country's rising violent crime rate, called for increased gun controls….
"The NRA's ability to stop any gun control measure ended in 1968. On April 4, 1968, Martin Luther King was gunned down on the balcony of the Lorraine Motel in Memphis. (We prepare now to celebrate the national holiday marking the slain civil rights leader's birth 84 years ago.) The next day the Omnibus Crime Control and Safe Streets Act of 1968 which was amended to include a ban on the interstate sale and shipment of handguns became the first firearms control bill to pass out of committee since 1938.
"On June 5, against a backdrop of urban rioting, New York Democratic Senator Robert Kennedy who had just won the California presidential primary was gunned down in Los Angeles. … He died the next day.
"That same day, the crime bill cleared Congress. It was signed into law on June 19. Although the public supported stricter gun controls (a January 1967 Gallup poll found that 70 percent believed that "laws concerning handguns should be more strict"), most Americans had never been motivated to act.
"Now they were. As historian Richard Hofstadter noted in 1970, after the killings there was an almost touching national revulsion against our own gun culture.' (We are close to that today after 20 schoolchildren and six adults were gunned down Dec. 14 at Sandy Hook Elementary School in Newtown, Conn.) Letters poured into Capitol Hill while enraged citizens picketed the NRA's headquarters.
"Can Three Assassins Kill a Civil Right?' asked the NRA in the July 1968 Rifleman. A besieged (NRA Executive Vice President Franklin) Orth promised that Kennedy's assassination could not have been prevented by any law "now in existence or proposed."
That was 45 years ago, but the NRA arguments sound so familiar today. More gun control laws were proposed in 1968 with President Johnson finally signing the Gun Control Act of 1968, on Oct. 22, 1968.
Such strident gun control measures following national outrage over shootings is what the NRA wants to prevent now and in the future. The real gunfight hasn't even begun yet.
"Let me issue and control a nation's money and I care not who writes the laws. - Mayer Rothschild
"Civil disobedience is not our problem. Our problem is civil obedience! People are obedient in the face of poverty, starvation, stupidity, war, and cruelty. Our problem is that grand thieves are running the country. That's our problem!" - Howard Zinn
"If there is no struggle there is no progress. Power concedes nothing without a demand. It never did and never will" - Frederick Douglass
So far 5 Oregon County sheriff's will refuse to enforce unconstitutional gun laws. Lane County Sheriff says court has final say on guns
Lane County's sheriff releases a letter on the enforcement issue
By Jeff Wright
The Register-Guard
Published: January 18, 2013 12:00AM, Today
In contrast to some other county sheriffs across Oregon and the country, Lane County Sheriff Tom Turner is putting his faith in the U.S. legal system, including the Supreme Court.
Turner on Thursday released a letter asserting that neither he, nor any other U.S. citizen, has the right to determine which laws are legally valid and which ones are not.
That's a job, ultimately, for the Supreme Court, he said.
Turner released his letter, addressed to Lane County residents, in the wake of other law enforcement officials who have declared that they may ignore any restrictions the federal government imposes as part of President Obama's proposed ban on new assault weapons and large-capacity ammunition clips.
"While I understand the sense of urgency on behalf of citizens, I believe that any reaction, decision or response to issues that impact the rights of all people should be done so without haste and after careful consideration," Turner said in his letter. "Ultimately, it is the Supreme Court, not any individual, that determines the constitutionality of any law."
Turner predicted that, as details of Obama's proposal become known in the coming days, there will be many discussions "on whether improvements can be made to increase public safety while upholding the Constitution and following the laws of our country."
At least five other county sheriffs in Oregon, however, have taken a different tack beginning with Linn County Sheriff Tim Mueller, who fired off a letter to Vice President Joe Biden indicating he wouldn't work with federal officials to enforce any future gun laws Mueller deemed unconstitutional.
The sheriffs in the politically conservative counties of Douglas, Crook, Grant and Josephine have expressed similar sentiment.
"A lot of sheriffs are now standing up and saying, Follow the Constitution,'" said Josephine County Sheriff Gil Gilbertson in Grants Pass.
Turner starts his letter with a reference to Sandy Hook, the elementary school in Connecticut where the massacre last month of 26 people, including 20 children, has spurred the renewed national debate about gun control. He then notes that Oregonians are not unfamiliar with the reality of gun violence citing last month's shooting at the Clackamas Town Center near Portland, the murder of Eugene police officer Chris Kilcullen in April 2011, and the fatal shooting at Thurston High School more than a decade ago.
Without offering specifics, Turner said that, as a member of the law enforcement community, he supports lawmakers evaluating the recent tragedies and discussing ways to avoid future such incidents. "It would be irresponsible if we didn't consider ways in which to make our country safer," he said.
Turner oversees a sheriff's department that routinely releases jail inmates and doesn't respond to calls for service because of a funding crisis that limits the number of deputies assigned to the jail and patrols. He ends his letter asserting that the county's primary focus "needs to be on strengthening our failing public safety system" and asking for the public's support.
Turner said he decided to write his letter in response to "many" inquiries from county residents wanting to know his position on the issue.
Political posturing
While sheriffs concerned about or opposed to the president's call for gun restrictions have spoken up across the country, their actual powers to defy federal law are limited. And much of the impassioned rhetoric amounts to political posturing until and if Congress acts.
Senate Majority Leader Harry Reid, a Democrat, said on Wednesday it's unlikely an assault weapons ban would pass the House of Representatives. Absent action by Congress, all that remains are 23 executive orders Obama announced that apply only to the federal government, not local or state law enforcement.
Gun advocates have seen Obama as an enemy despite his expression of support for the interpretation of the Second Amendment as a personal right to have guns. So his call for new measures including background checks for all gun buyers and Senate confirmation of a director of the Bureau of Alcohol, Tobacco, Firearms and Explosives has triggered new vows of defiance.
In Mississippi, Gov. Phil Bryant, a Republican, urged the Legislature to make it illegal to enforce any executive order by the president that violates the Constitution. And in Tennessee, state Rep. Joe Carr has said he wants to make it a state crime for federal agents to enforce any ban on firearms or ammunition. Carr instead called for more armed guards at schools.
"We're tired of political antics, cheap props of using children as bait to gin up emotional attachment for an issue that quite honestly doesn't solve the problem," Carr said.
Legislative proposals to pre-empt new federal gun restrictions also have arisen in Wyoming, Utah and Alaska.
A Wyoming bill specifies that any federal limitation on guns would be unenforceable. It also would make it a state felony for federal agents to try to enforce restrictions.
Republican state Sen. Larry Hicks credited Wyoming's high rate of gun ownership for a low rate of gun violence.
"Our kids grow up around firearms, and they also grow up hunting, and they know what the consequences are of taking a life," Hicks said. "We're not insulated from the real world in Wyoming."
Supremacy Clause
In Utah, some Republicans are preparing legislation to exempt the state from federal gun laws and fine any federal agents who try to seize guns. A bill in the Alaska House would make it a misdemeanor for a federal agent to enforce new restrictions on gun ownership.
While such proposals may be eye-catching, they likely could never be implemented.
"The Legislature can pass anything it wants," said Sam Kamin, a constitutional law professor at the University of Denver. "The Supremacy Clause of the Constitution makes that clearly unconstitutional. Where there's a conflict between state and federal law, the federal government is supreme."
Kamin and other legal experts said such disdain of Obama's proposals is reminiscent of former Confederate states' refusal to comply with federal law extending equal rights for blacks after the Civil War.
The National Sheriffs' Association has supported administration efforts to combat gun violence after the Sandy Hook Elementary shootings. President Larry Amerson, sheriff of Calhoun, Ala., said he understands the frustrations of people in rural areas with the federal government. But he feels his oath of office binds him to uphold all laws.
"Any sheriff who knows his duty knows we don't enforce federal law, per se," said Amerson, a longtime firearms instructor and hunter.
"You never change things by fighting the existing reality. To change something, build a new model that makes the existing model obsolete.â€
Buckminster Fuller
The Ku Klux Klan, Ronald Reagan, and, for most of its history, the NRA all worked to control guns. The Founding Fathers? They required gun ownershipand regulated it. And no group has more fiercely advocated the right to bear loaded weapons in public than the Black Panthersthe true pioneers of the modern pro-gun movement. In the battle over gun rights in America, both sides have distorted history and the law, and there's no resolution in sight.
By [URL="http://www.theatlantic.com/adam-winkler/"]ADAM WINKLER
[/URL]THE EIGHTH-GRADE STUDENTS gathering on the west lawn of the state capitol in Sacramento were planning to lunch on fried chicken with California's new governor, Ronald Reagan, and then tour the granite building constructed a century earlier to resemble the nation's Capitol. But the festivities were interrupted by the arrival of 30 young black men and women carrying .357 Magnums, 12-gauge shotguns, and .45-caliber pistols.
The 24 men and six women climbed the capitol steps, and one man, Bobby Seale, began to read from a prepared statement. "The American people in general and the black people in particular," he announced, must
take careful note of the racist California legislature aimed at keeping the black people disarmed and powerless Black people have begged, prayed, petitioned, demonstrated, and everything else to get the racist power structure of America to right the wrongs which have historically been perpetuated against black people The time has come for black people to arm themselves against this terror before it is too late.
Seale then turned to the others. "All right, brothers, come on. We're going inside." He opened the door, and the radicals walked straight into the state's most important government building, loaded guns in hand. No metal detectors stood in their way.
THE PANTHERS' METHODS provoked an immediate backlash. The day of their statehouse protest, lawmakers said the incident would speed enactment of Mulford's gun-control proposal. Mulford himself pledged to make his bill even tougher, and he added a provision barring anyone but law enforcement from bringing a loaded firearm into the state capitol.
Republicans in California eagerly supported increased gun control. Governor Reagan told reporters that afternoon that he saw "no reason why on the street today a citizen should be carrying loaded weapons." He called guns a "ridiculous way to solve problems that have to be solved among people of good will." In a later press conference, Reagan said he didn't "know of any sportsman who leaves his home with a gun to go out into the field to hunt or for target shooting who carries that gun loaded." The Mulford Act, he said, "would work no hardship on the honest citizen."
The fear inspired by black people with guns also led the United States Congress to consider new gun restrictions, after the summer of 1967 brought what the historian Harvard Sitkoff called the "most intense and destructive wave of racial violence the nation had ever witnessed." Devastating riots engulfed Detroit and Newark. Police and National Guardsmen who tried to help restore order were greeted with sniper fire.
A 1968 federal report blamed the unrest at least partly on the easy availability of guns. Because rioters used guns to keep law enforcement at bay, the report's authors asserted that a recent spike in firearms sales and permit applications was "directly related to the actuality and prospect of civil disorders." They drew "the firm conclusion that effective firearms controls are an essential contribution to domestic peace and tranquility."
Political will in Congress reached the critical point around this time. In April of 1968, James Earl Ray, a virulent racist, used a Remington Gamemaster deer rifle to kill Martin Luther King Jr. in Memphis, Tennessee. King's assassinationand the sniper fire faced by police trying to quell the resulting riotsgave gun-control advocates a vivid argument. Two months later, a man wielding a .22-caliber Iver Johnson Cadet revolver shot Robert F. Kennedy in Los Angeles. The very next day, Congress passed the Omnibus Crime Control and Safe Streets Act of 1968, the first federal gun-control law in 30 years. Months later, the Gun Control Act of 1968 amended and enlarged it.
Together, these laws greatly expanded the federal licensing system for gun dealers and clarified which peopleincluding anyone previously convicted of a felony, the mentally ill, illegal-drug users, and minorswere not allowed to own firearms. More controversially, the laws restricted importation of "Saturday Night Specials"the small, cheap, poor-quality handguns so named by Detroit police for their association with urban crime, which spiked on weekends. Because these inexpensive pistols were popular in minority communities, one critic said the new federal gun legislation "was passed not to control guns but to control blacks."
INDISPUTABLY, FOR MUCH of American history, gun-control measures, like many other laws, were used to oppress African Americans. The South had long prohibited blacks, both slave and free, from owning guns. In the North, however, at the end of the Civil War, the Union army allowed soldiers of any color to take home their rifles. Even blacks who hadn't served could buy guns in the North, amid the glut of firearms produced for the war. President Lincoln had promised a "new birth of freedom," but many blacks knew that white Southerners were not going to go along easily with such a vision. As one freedman in Louisiana recalled, "I would say to every colored soldier, Bring your gun home.'"
After losing the Civil War, Southern states quickly adopted the Black Codes, laws designed to reestablish white supremacy by dictating what the freedmen could and couldn't do. One common provision barred blacks from possessing firearms. To enforce the gun ban, white men riding in posses began terrorizing black communities. In January 1866, Harper's Weekly reported that in Mississippi, such groups had "seized every gun and pistol found in the hands of the (so called) freedmen" in parts of the state. The most infamous of these disarmament posses, of course, was the Ku Klux Klan.
IN RESPONSE TO the Black Codes and the mounting atrocities against blacks in the former Confederacy, the North sought to reaffirm the freedmen's constitutional rights, including their right to possess guns. General Daniel E. Sickles, the commanding Union officer enforcing Reconstruction in South Carolina, ordered in January 1866 that "the constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed." When South Carolinians ignored Sickles's order and others like it, Congress passed the Freedmen's Bureau Act of July 1866, which assured ex-slaves the "full and equal benefit of all laws and proceedings concerning personal liberty … including the constitutional right to bear arms."
That same year, Congress passed the nation's first Civil Rights Act, which defined the freedmen as United States citizens and made it a federal offense to deprive them of their rights on the basis of race. Senator James Nye, a supporter of both laws, told his colleagues that the freedmen now had an "equal right to protection, and to keep and bear arms for self-defense." President Andrew Johnson vetoed both laws. Congress overrode the vetoes and eventually made Johnson the first president to be impeached.
One prosecutor in the impeachment trial, Representative John Bingham of Ohio, thought that the only way to protect the freedmen's rights was to amend the Constitution. Southern attempts to deny blacks equal rights, he said, were turning the Constitution"a sublime and beautiful scriptureinto a horrid charter of wrong." In December of 1865, Bingham had proposed what would become the Fourteenth Amendment to the Constitution. Among its provisions was a guarantee that all citizens would be secure in their fundamental rights:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The key phrase, in Bingham's view, was privileges or immunities of citizensand those "privileges or immunities," he said, were "chiefly defined in the first eight amendments to the Constitution." Jacob Howard of Michigan, the principal sponsor of Bingham's amendment in the Senate, reminded his colleagues that these amendments guaranteed "the freedom of speech and of the press," "the right to be exempt from unreasonable searches and seizures," and "the right to keep and bear arms."
Whether or not the Founding Fathers thought the Second Amendment was primarily about state militias, the men behind the Fourteenth AmendmentAmerica's most sacred and significant civil-rights lawclearly believed that the right of individuals to have guns for self-defense was an essential element of citizenship. As the Yale law professor Akhil Reed Amar has observed, "Between 1775 and 1866 the poster boy of arms morphed from the Concord minuteman to the Carolina freedman."
The Fourteenth Amendment illustrates a common dynamic in America's gun culture: extremism stirs a strong reaction. The aggressive Southern effort to disarm the freedmen prompted a constitutional amendment to better protect their rights. A hundred years later, the Black Panthers' brazen insistence on the right to bear arms led whites, including conservative Republicans, to support new gun control. Then the pendulum swung back. The gun-control laws of the late 1960s, designed to restrict the use of guns by urban black leftist radicals, fueled the rise of the present-day gun-rights movementone that, in an ironic reversal, is predominantly white, rural, and politically conservative.
TODAY, THE NRA is the unquestioned leader in the fight against gun control. Yet the organization didn't always oppose gun regulation. Founded in 1871 by George Wingate and William Churchthe latter a former reporter for a newspaper now known for hostility to gun rights, The New York Timesthe group first set out to improve American soldiers' marksmanship. Wingate and Church had fought for the North in the Civil War and been shocked by the poor shooting skills of city-bred Union soldiers.
In the 1920s and '30s, the NRA was at the forefront of legislative efforts to enact gun control. The organization's president at the time was Karl T. Frederick, a Princeton- and Harvard-educated lawyer known as "the best shot in America"a title he earned by winning three gold medals in pistol-shooting at the 1920 Summer Olympic Games. As a special consultant to the National Conference of Commissioners on Uniform State Laws, Frederick helped draft the Uniform Firearms Act, a model of state-level gun-control legislation. (Since the turn of the century, lawyers and public officials had increasingly sought to standardize the patchwork of state laws. The new measure imposed more orderand, in most cases, far more restrictions.)
Frederick's model law had three basic elements. The first required that no one carry a concealed handgun in public without a permit from the local police. A permit would be granted only to a "suitable" person with a "proper reason for carrying" a firearm. Second, the law required gun dealers to report to law enforcement every sale of a handgun, in essence creating a registry of small arms. Finally, the law imposed a two-day waiting period on handgun sales.
The NRA today condemns every one of these provisions as a burdensome and ineffective infringement on the right to bear arms. Frederick, however, said in 1934 that he did "not believe in the general promiscuous toting of guns. I think it should be sharply restricted and only under licenses." The NRA's executive vice president at the time, Milton A. Reckord, told a congressional committee that his organization was "absolutely favorable to reasonable legislation." According to Frederick, the NRA "sponsored" the Uniform Firearms Act and promoted it nationwide. Highlighting the political strength of the NRA even back then, a 1932 Virginia Law Review article reported that laws requiring a license to carry a concealed weapon were already "in effect in practically every jurisdiction."
When Congress was considering the first significant federal gun law of the 20th centurythe National Firearms Act of 1934, which imposed a steep tax and registration requirements on "gangster guns" like machine guns and sawed-off shotgunsthe NRA endorsed the law. Karl Frederick and the NRA did not blindly support gun control; indeed, they successfully pushed to have similar prohibitive taxes on handguns stripped from the final bill, arguing that people needed such weapons to protect their homes. Yet the organization stood firmly behind what Frederick called "reasonable, sensible, and fair legislation."
One thing conspicuously missing from Frederick's comments about gun control was the Second Amendment. When asked during his testimony on the National Firearms Act whether the proposed law violated "any constitutional provision," he responded, "I have not given it any study from that point of view." In other words, the president of the NRA hadn't even considered whether the most far-reaching federal gun-control legislation in history conflicted with the Second Amendment. Preserving the ability of law-abiding people to have guns, Frederick would write elsewhere, "lies in an enlightened public sentiment and in intelligent legislative action. It is not to be found in the Constitution."
In the 1960s, the NRA once again supported the push for new federal gun laws. After the assassination of President John F. Kennedy in 1963 by Lee Harvey Oswald, who had bought his gun through a mail-order ad in the NRA's American Rifleman magazine, Franklin Orth, then the NRA's executive vice president, testified in favor of banning mail-order rifle sales. "We do not think that any sane American, who calls himself an American, can object to placing into this bill the instrument which killed the president of the United States." Orth and the NRA didn't favor stricter proposals, like national gun registration, but when the final version of the Gun Control Act was adopted in 1968, Orth stood behind the legislation. While certain features of the law, he said, "appear unduly restrictive and unjustified in their application to law-abiding citizens, the measure as a whole appears to be one that the sportsmen of America can live with."
A GROWING GROUP OF rank-and-file NRA members disagreed. In an era of rising crime rates, fewer people were buying guns for hunting, and more were buying them for protection. The NRA leadership didn't fully grasp the importance of this shift. In 1976, Maxwell Rich, the executive vice president, announced that the NRA would sell its building in Washington, D.C., and relocate the headquarters to Colorado Springs, retreating from political lobbying and expanding its outdoor and environmental activities.
Rich's plan sparked outrage among the new breed of staunch, hard-line gun-rights advocates. The dissidents were led by a bald, blue-eyed bulldog of a man named Harlon Carter, who ran the NRA's recently formed lobbying arm, the Institute for Legislative Action. In May 1977, Carter and his allies staged a coup at the annual membership meeting. Elected the new executive vice president, Carter would transform the NRA into a lobbying powerhouse committed to a more aggressive view of what the Second Amendment promises to citizens.
The new NRA was not only responding to the wave of gun-control laws enacted to disarm black radicals; it also shared some of the Panthers' views about firearms. Both groups valued guns primarily as a means of self-defense. Both thought people had a right to carry guns in public places, where a person was easily victimized, and not just in the privacy of the home. They also shared a profound mistrust of law enforcement. (For years, the NRA has demonized government agents, like those in the Bureau of Alcohol, Tobacco, Firearms and Explosives, the federal agency that enforces gun laws, as "jack-booted government thugs." Wayne LaPierre, the current executive vice president, warned members in 1995 that anyone who wears a badge has "the government's go-ahead to harass, intimidate, even murder law-abiding citizens.") For both the Panthers in 1967 and the new NRA after 1977, law-enforcement officers were too often representatives of an uncaring government bent on disarming ordinary citizens.
A sign of the NRA's new determination to influence electoral politics was the 1980 decision to endorse, for the first time in the organization's 100 years, a presidential candidate. Their chosen candidate was none other than Ronald Reagan, who more than a decade earlier had endorsed Don Mulford's law to disarm the Black Panthersa law that had helped give Reagan's California one of the strictest gun-control regimes in the nation. Reagan's views had changed considerably since then, and the NRA evidently had forgiven his previous support of vigorous gun control.
IN 2008, IN A LANDMARK ruling, the U.S. Supreme Court declared that the government cannot ever completely disarm the citizenry. In District of Columbia v. Heller, the Supreme Court clearly held, for the first time, that the Second Amendment guarantees an individual's right to possess a gun. In an opinion by Justice Antonin Scalia, the Court declared unconstitutional several provisions of the District's unusually strict gun-control law, including its ban on handguns and its prohibition of the use of long guns for self-defense. Indeed, under D.C.'s law, you could own a shotgun, but you could not use it to defend yourself against a rapist climbing through your bedroom window.
Gun-rights groups trumpeted the ruling as the crowning achievement of the modern gun-rights movement and predicted certain victory in their war to end gun control. Their opponents criticized the Court's opinion as right-wing judicial activism that would call into question most forms of gun control and lead inevitably to more victims of gun violence.
So far, at least, neither side's predictions have come true. The courts have been inundated with lawsuits challenging nearly every type of gun regulation; in the three years since the Supreme Court's decision, lower courts have issued more than 200 rulings on the constitutionality of gun control. In a disappointment to the gun-rights community, nearly all laws have been upheld.
The lower courts consistently point to one paragraph in particular from the Heller decision. Nothing in the opinion, Scalia wrote, should
be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
This paragraph from the pen of Justice Scalia, the foremost proponent of constitutional originalism, was astounding. True, the Founders imposed gun control, but they had no laws resembling Scalia's list of Second Amendment exceptions. They had no laws banning guns in sensitive places, or laws prohibiting the mentally ill from possessing guns, or laws requiring commercial gun dealers to be licensed. Such restrictions are products of the 20th century. Justice Scalia, in other words, embraced a living Constitution. In this, Heller is a fine reflection of the ironies and contradictionsand the selective use of the pastthat run throughout America's long history with guns.
Adam Winkler is a professor of constitutional law at UCLA law school. This article is adapted from his forthcoming book, Gunfight: The Battle Over the Right to Bear Arms in America, to be published by W. W. Norton in September.
Thanks for that interesting article from the Atlantic, and the story of the Black Panthers.
As Peter mentions in the first post on this thread the Second amendment doesn't refer to the right to hunt, but the right for civilians to arm themselves in case there's a need for another revolution and take the government back.
They want to ban A-47s and assault rifles, but they were the weapons that won the Libyan revolution, and would be needed if there is ever to be another violent revolution in the USA.
While I subscribe to a non-violent revolution, ala Ghandi and MLK, and as they tried to do in Egypt and early on in the Arab Spring revolts, there certainly is a need for people to take up such arms to fight bands of bullies, rogue African armies and the radical Islam militias that have violently taken over regions of Africa like Timbucktu and are physically imposing their religious laws on everyone.
You can't stop them with non-violent protests, they must either be persuaded by moderate Muslims or met with the same violence they use to impose their perverted will on others.
Homeland Security's ammo buying binge - 450 Million Hollow Point Bullets - Why?
Thu, January 17, 2013 11:07:34 AM
Homeland Security's ammo buying binge
From: Brasscheck TV <news@brasschecktv.com>
There are lots of news reports
about how US citizens are arming
themselves.
But the reality is that the
"arms race" was started by
Obama's Department of
Homeland Security.
Why does the TSA need
hundreds of millions of rounds
of military grade ammunition?
"Let me issue and control a nation's money and I care not who writes the laws. - Mayer Rothschild
"Civil disobedience is not our problem. Our problem is civil obedience! People are obedient in the face of poverty, starvation, stupidity, war, and cruelty. Our problem is that grand thieves are running the country. That's our problem!" - Howard Zinn
"If there is no struggle there is no progress. Power concedes nothing without a demand. It never did and never will" - Frederick Douglass
Gun politics has long been among the most controversial issues in American politics.[1] For the last several decades, the debate regarding both the restriction and availability of firearms within the United States has been characterized by a stalemate between an individual right to bear arms against the responsibility of government to prevent crime.[2][3]
In his article, "America as a Gun Culture," historian Richard Hofstadter popularized the phrase gun culture to describe the long-held affections for firearms within America, many citizens embracing and celebrating the association of guns and America's heritage.[4] The right to own a gun and defend oneself is considered by some, especially those in the West and South,[5] as a central tenet of the American identity. This stems in part from the nation's frontier history, where guns were integral to westward expansion, enabling settlers to guard themselves from Native Americans, animals and foreign armies, frontier citizens often assuming responsibility for self-protection. The importance of guns also derives from the role of hunting in American culture, which remains popular as a sport in the country today.[6]
The viewpoint that firearms were an integral part of the settling of the United States has the least level of support in urban and industrialized regions,[6] where a cultural tradition of conflating violence and associating gun ownership with the "redneck" stereotype has played a part in promoting the support of gun regulation.[7]
In 1995, the Bureau of Alcohol, Tobacco, and Firearms, whose employees routinely carry such weapons in the line of duty, estimated that the number of firearms available in the US was 223 million.[8] In 2011 34% of adults in the United States personally owned a gun; 46% of adult men, and 23% of adult women. In 2011 47% of the adult U.S. population lived in households with guns.[9][10] In 2005 almost 18% of U.S. households possessed handguns, compared to almost 3% of households in Canada that possessed handguns.[11]
Guns are prominent in contemporary U.S. popular culture as well, appearing frequently in movies, television, music, books, and magazines.[12]
Origins
The origins of American gun culture can be traced back to the American Revolutionary War, hunting/sporting ethos and the militia/frontier ethos that draw from the country's early history.[3]
Calamity Jane, notable pioneer frontierswoman and scout, at age 43. Photo by H.R. Locke.
The American hunting/sporting passion comes from a time when the United States was an agrarian, subsistence nation where hunting was an auxiliary source of food for some settlers, and also a deterrence to animal predators. A connection between shooting skills and survival among rural American men was in many cases a 'rite of passage' for those entering manhood. Today, hunting survives as a central sentimental component of a gun culture as a way to control animal populations across the country, regardless of modern trends away from subsistence hunting and rural living.[3]
The militia/frontiersman spirit derives from an early American dependence on arms to protect themselves from hostile Native Americans and foreign armies. Survival depended upon everyone being capable of carrying a weapon. In the 18th century, there was neither budget nor manpower nor government desire to maintain a full-time army, believing they were a threat to the rights of the civilian populace. Therefore, the armed citizen-soldier carried the responsibility. Service in militia, including providing his own ammunition and weapons, was mandatory for all men. Yet, as early as the 1790s, the mandatory universal militia duty gave way to voluntary militia units and a reliance on a regular army, with a decline of the importance of militia trend continuing throughout the 19th century.[3]
Closely related to the militia tradition was the frontier tradition, with the Nineteenth Century westward expansion closely associated with firearms. Regardless, today, there remains a powerful central elevation of the gun associated with the hunting/sporting and militia/frontier ethos among the American Gun Culture.[3] Though it has not been a necessary part of daily survival for a long time, generations of Americans have continued to embrace and glorify it as a living inheritancea permanent element of the nation's style and culture.[13]
Popular culture
The gun has long been a symbol of power and masculinity.[14] In popular literature, frontier adventure was most famously told by James Fenimore Cooper, who is credited by Petri Liukkonen with creating the archetype of an 18th century frontiersman through such novels as "The Last of the Mohicans" (1826) and "The Deerslayer" (1840).[15]
A handbill for Buffalo Bill's Wild West and Congress of Rough Riders of the World
In the late 19th century, cowboy and Wild West imagery entered the collective imagination. The first American female superstar, Annie Oakley, was a sharpshooter who toured the country starting in 1885, performing in Buffalo Bill's Wild West show. The cowboy archetype of individualist hero was established largely by Owen Wister in stories and novels, most notably "The Virginian" (1902), following close on the heels of Theodore Roosevelt's "The Winning of the West" (18891895), a history of the early frontier.[16][17][18] Cowboys were also popularized in turn of the 20th century cinema, notably through such early classics as "The Great Train Robbery" (1903) and "A California Hold Up" (1906)--the most commercially successful film of the pre-nickelodeon era.[19]
Gangster films began appearing as early as 1910, but became popular only with the advent of sound in film in the 1930s. The genre was boosted by the events of the prohibition era, such as bootlegging and the St. Valentine's Day Massacre of 1929, the existence of real-life gangsters (e.g., Al Capone) and the rise of contemporary organized crime and escalation of urban violence. These movies flaunted the archetypal exploits of "swaggering, cruel, wily, tough, and law-defying bootleggers and urban gangsters."[20]
With the arrival of World War II, Hollywood produced many morale boosting movies, patriotic rallying cries that affirmed a sense of national purpose. The image of the lone cowboy was replaced in these combat films by stories that emphasized group efforts and the value of individual sacrifices for a larger cause, often featuring a group of men from diverse ethnic backgrounds who were thrown together, tested on the battlefield, and molded into a dedicated fighting unit.[21]
Guns frequently accompanied famous heroes and villains in late 20th century American films, from the outlaws of Bonnie and Clyde (1967) and The Godfather (1972), to the fictitious law and order avengers like Dirty Harry (1971) and RoboCop (1987). In the 1970s, films portrayed fictitious and exaggerated characters, madmen ostensibly produced by the Vietnam War in films like Taxi Driver (1976) and Apocalypse Now (1979), while other films told stories of fictitious veterans who were supposedly victims of the war and in need of rehabilitation (Coming Home and The Deer Hunter, both 1978).[22] Many action films continue to celebrate the gun toting hero in fantastical settings. At the same time, the negative role of the gun in fictionalized modern urban violence has been explored in films like Boyz n the Hood (1991) and Menace 2 Society (1993).
History
Revolutionary War
Gun politics as a political issue dates to the earliest days of the United States. (Lexington Minuteman representing militia minuteman John Parker. Statue is by Henry Hudson Kitson and it stands at the town green of Lexington, Massachusetts.)
In the years prior to the Revolutionary War, the British, in response to the colonists' unhappiness over increasingly direct control and taxation of the colonies, imposed a powder embargo on the colonies in an attempt to lessen the ability of the colonists to resist British encroachments into what the colonies regarded as local matters. Two direct attempts to disarm the colonial militias fanned what had been a smoldering resentment of British interference into the fires of war.[23]
These two incidents were the attempt to confiscate the cannon of the Concord and Lexington militias, leading to the Battles of Lexington and Concord of April 19, 1775, and the attempt, on April 20, to confiscate militia powder stores in the armory of Williamsburg, Virginia, which led to the Gunpowder Incident and a face off between Patrick Henry and hundreds of militia members on one side and the Royal Governor of Virginia, Lord Dunmore, and British seamen on the other. The Gunpowder Incident was eventually settled by paying the colonists for the powder.[23]
Minutemen were members of teams of select men from the American colonial militia during the American Revolutionary War who vowed to be ready for battle against the British within one minute of receiving notice[citation needed]. On the night of April 18/April 19, 1775, minuteman Paul Revere, William Dawes, and Dr. Samuel Prescott spread the news that "the Regulars are coming out!"[24] Paul Revere was captured before completing his mission when the British marched towards the armory in Lexington and Concord to seize the Massachusetts militia's gunpowder magazine which had been hidden there. Only Dr. Prescott was able to complete the journey to Concord.[25] The right to a militia was thus an issue in America from the very beginning.
Jacksonian era
States passed some of the first gun control laws. There was opposition and, as a result, the Individual Right interpretation of the Second Amendment began and grew in direct response to these early gun control laws, in keeping with this new "pervasive spirit of individualism."[26] As noted by Cornell, "Ironically, the first gun control movement helped give birth to the first self-conscious gun rights ideology built around a constitutional right of individual self-defense."[26]
The Individual Right interpretation of the Second Amendment first arose in Bliss v. Commonwealth (1822, KY),[27] which evaluated the right to bear arms in defense of themselves and the state pursuant to Section 28 of the Second Constitution of Kentucky (1799). The right to bear arms in defense of themselves and the state was interpreted as an individual right, for the case of a concealed sword cane. This case has been described as about "a statute prohibiting the carrying of concealed weapons [that] was violative of the Second Amendment"".[28]
The first relevant state court decision was Bliss v. Commonwealth. The Kentucky court held that "the right of citizens to bear arms in defense of themselves and the State must be preserved entire, ..."" "This holding was unique because it stated that the right to bear arms is absolute and unqualified."[29][30]
Also during the Jacksonian Era, the first Collective Right interpretation of the Second Amendment arose. In State v. Buzzard (1842, Ark), the Arkansas high court adopted a militia-based, political right, reading of the right to bear arms under state law, and upheld the 21st section of the second article of the Arkansas Constitution that declared, "that the free white men of this State shall have a right to keep and bear arms for their common defense",[31] while rejecting a challenge to a statute prohibiting the carrying of concealed weapons.
The Arkansas high court declared "That the words "a well regulated militia being necessary for the security of a free State", and the words "common defense" clearly show the true intent and meaning of these Constitutions [i.e., Ark. and U.S.] and prove that it is a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then the people, neither individually nor collectively, have the right to keep and bear arms." Joel Prentiss Bishop's influential Commentaries on the Law of Statutory Crimes (1873) took Buzzard's militia-based interpretation, a view that Bishop characterized as the "Arkansas doctrine", as the orthodox view of the right to bear arms in American law.[31][32]
The two early state court cases, Bliss and Buzzard, set the fundamental dichotomy in interpreting the Second Amendment, i.e. whether it secured an Individual Right versus a Collective Right. A debate about how to interpret the Second Amendment evolved through the decades and remained unresolved until the 2008 District of Columbia v. Heller U.S. Supreme Court decision.
Antebellum era
The Dred Scott decision of 1857 was one of the polarizing decisions that led to the civil war. One minor issue was whether blacks had the citizenship right to bear arms. In Dred Scott v. Sandford, 60 U.S. 393 (1856) the Chief Justice Roger Taney wrote for the majority: "It would give to persons of the negro race, who were recognized as citizens in any one State of the Union ... the full liberty ... to keep and carry arms wherever they went."
Reconstruction era
See also: Reconstruction era
With the Civil War ending, the question of the rights of freed slaves to carry arms and to belong to militia came to the attention of the Federal courts. In response to the problems freed slaves faced in the Southern states, the Fourteenth Amendment was drafted.
Representative John A. Bingham of Ohio, principal framer of the Fourteenth Amendment
When the Fourteenth Amendment was drafted, Representative John A. Bingham of Ohio used the Court's own phrase "privileges and immunities of citizens" to include the first Eight Amendments of the Bill of Rights under its protection and guard these rights against state legislation.[33]
The debate in the Congress on the Fourteenth Amendment after the Civil War also concentrated on what the Southern States were doing to harm the newly freed slaves. One particular concern was the disarming of former slaves.
The Second Amendment attracted serious judicial attention with the Reconstruction era case of United States v. Cruikshank which ruled that the Privileges and Immunities Clause of the Fourteenth Amendment did not cause the Bill of Rights, including the Second Amendment, to limit the powers of the State governments, stating that the Second Amendment "has no other effect than to restrict the powers of the national government."
Akhil Reed Amar notes in the Yale Law Journal, the basis of Common Law for the first ten amendments of the U.S. Constitution, which would include the Second Amendment, "following John Randolph Tucker's famous oral argument in the 1887 Chicago anarchist Haymarket Riot case, Spies v. Illinois":
Though originally the first ten Amendments were adopted as limitations on Federal power, yet in so far as they secure and recognize fundamental rightscommon law rightsof the man, they make them privileges and immunities of the man as citizen of the United States...[34]
20th century
See also: Crime in the United States and Gun control policy of the Clinton Administration
A famous and widely publicized case where fully automatic weapons were used in crime in the United States was during the Saint Valentine's Day massacre during the winter of 1929; this Prohibition-era gangster sub-machine gun mass murder led directly to the National Firearms Act of 1934, which was passed over a year after Prohibition had ended. Since 1934, fully automatic weapons have been heavily regulated by the Bureau of Alcohol, Tobacco and Firearms (ATF), but ones manufactured before May 19, 1986 are available to citizens who are not otherwise prohibited, in those states that do not prohibit them, upon paying a $200 transfer tax, submission of a full set of fingerprints on FBI Form FD-258, certification provided by the local chief of police, sheriff of the county, head of the State police, or State or local district attorney or prosecutor, and approval by the BATF.[35][36] Other crimes involving fully automatic weapons in the United States have not been as widely publicized since.[37] However, the lesser known 1997 North Hollywood shootout involved two men carrying illegally imported automatic AKMs.[38]
In the latter half of the 20th Century, groups such as the National Rifle Association (NRA) and the Gun Owners of America (GOA) organized voters and campaign volunteers to focus citizen communication and interest when anti-gun rights legislation was under consideration, both at federal and state levels.
The United States was generally seen as having the least stringent anti-gun rights laws in the developed world, with the possible exception of Switzerland, in part due to the strength of the gun lobby, particularly the NRA.[39] The NRA historically supported gun laws intended to prevent criminals from obtaining firearms, while opposing new restrictions that affected law-abiding citizens[citation needed].
An important electoral showdown over gun control came in 1970, when Senator Joseph Tydings (D, MD), who had highlighted crime in the District of Columbia and sponsored the Firearms Registration and Licensing Act, was defeated for reelection.
The GOA grew out of dissatisfaction with the NRA, and historically rejected any gun laws that infringed the rights of law-abiding citizens, putting it at odds with the NRA on many legislative issues.
Besides the GOA, other national gun rights groups often took a stronger stance than the NRA. These groups criticize the NRA's history of support for some gun control legislation, such as the Gun Control Act of 1968, the ban on armor-piercing projectiles, point-of-purchase background checks (NICS). Some of these groups are The Second Amendment Sisters, Second Amendment Foundation, and Jews for the Preservation of Firearms Ownership. These groups, like the GOA, believe any compromise leads to incrementally greater restrictions.[40][41]
Chaos outside the Washington Hilton Hotel after the 1981 assassination attempt on President Reagan. James Brady and police officer Thomas Delahanty lie wounded on the ground.
Handgun Control Inc. (HCI), founded in 1974 by businessman Pete Shields, formed a partnership with the National Coalition to Ban Handguns (NCBH), also founded in 1974. Soon parting ways, the NCBH was renamed the Coalition to Stop Gun Violence in 1990, and while smaller than HCI, generally took a tougher stand on gun regulation than HCI.[42]
HCI saw an increase of interest and fund raising in the wake of the 1980 murder of John Lennon. By 1981 membership exceeded 100,000. Measured in dollars contributed to congressional campaigns, HCI contributed $75,000. Following the 1981 assassination attempt on President Reagan, and the resultant injury of James Brady, Sarah Brady joined the board of HCI in 1985. HCI was renamed in 2001 to Brady Campaign to Prevent Gun Violence.[43]
In the 1990s, gun politics took a turn to the right in response to two high profile ATF incidents, Ruby Ridge and Waco, that led to mobilization of modern militia groups.[44] These incidents combined with the passage of the Brady Act in 1993 and the Assault Weapons Ban a year later increased the fears of those who felt the Federal Government would confiscate their firearms.[42][45] The Militia Movement expanded throughout the 1990s.
21st century
Memorial on Virginia Tech's drillfield after the April 16, 2007 Virginia Tech massacre
One of the first major victories for gun rights advocates at the federal level came in 2004, when the Assault Weapons Ban was scheduled to expire by its own terms. Efforts by gun control advocates to extend the ban at the federal level failed; two later attempts to reestablish the ban also failed.
The NRA opposed bans on handguns in Washington D.C. and San Francisco, while also supporting the 2007 NICS Improvement Amendments Act (H.R. 2640), which strengthened requirements for background checks for firearm purchases.[46]
The GOA especially took issue with the NRA over a portion of the 2007 "The School Safety And Law Enforcement Improvement Act" known as The NICS Improvement Amendments Act, which they termed the "Veteran's Disarmament Act."[47]
Besides the GOA, other national gun rights groups continue to take a stronger stance than the NRA. Groups such as The Second Amendment Sisters, Second Amendment Foundation, Jews for the Preservation of Firearms Ownership, and the Pink Pistols continue much as they did in the late 20th Century, but new groups have also arisen, such as the Students for Concealed Carry, which grew largely out of safety-issues resulting from the creation of 'Gun-free' zones that were legislatively mandated at many schools, amidst a response to widely publicized school shootings. Even the Centers for Disease Control and Prevention pitched in, with an extensive study on gun control[48] which found "Evidence was insufficient to determine the effectiveness of any of these laws." A similar survey of firearms research by the United States National Academy of Sciences arrived at nearly identical conclusions in 2004.[49]
In District of Columbia v. Heller, No. 07-290, the United States Supreme Court held that Americans have an individual right described in the Second Amendment to possess firearms "for traditionally lawful purposes, such as self-defense within the home." It is an appeal from Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), a decision in which the United States Court of Appeals for the District of Columbia Circuit became the first federal appeals court in the United States to rule that a firearm ban infringes the Second Amendment to the United States Constitution, and the second to expressly interpret the Second Amendment as protecting an individual right to possess firearms for private use. The first federal case that interpreted the Second Amendment as protecting an individual right was United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).[50]
According to The Center for Public Integrity, 145 groups are registered as making gun-related filings to lobby Congress, the largest being the National Rifle Association, spending about $1.5 million per year, predominantly through two lobbying firms, the WPP Group and The Federalist Group.[51] Ranked by total filings, gun-rights lobbying exceeded gun-control lobbying by the ratio of approximately 3:1.[52]
Measured in dollars, in 2007, gun rights political spending on lobbying totaled $1,959,407 versus gun control spending of $60,800.[53] The NRA is the largest gun rights lobbying organization in the United States.
An open source group emerged in the US in 2012 that is attempting to design a firearm that may be downloaded from the internet and "printed" on a 3-D Printer.[54] Calling itself Defense Distributed, the group wants to facilitate "a working plastic gun that could be downloaded and reproduced by anybody with a 3D printer."[55]
Regional and partisan divides
See also: Concealed carry in the United States
Regional differences tend to be greater than partisan ones for gun politics in the United States. Jurisdictions that favor gun control are concentrated in parts of the Northeastern United States such as New York, New Jersey, Massachusetts, the District of Columbia, and Maryland, but also include States with major metropolitan areas, notably California and Illinois. The Northwest, such as Montana, Idaho and Washington; the Deep South, including Alabama, Georgia and Florida; and the Southwest, such as Arizona, Texas, New Mexico, and Utah tend to support gun rights. Other areas, including the Midwest and Plains States, are mixed with one example being Illinois with some of the most restrictive gun laws in the country alongside Indiana, which is a relatively gun-friendly state.[56]
Alaska, Arizona, Vermont, and Wyoming do not require any license in order to carry concealed weapons in public places, but there are laws in these states prohibiting concealed weapons in certain places (e.g., in Alaska it is not permitted to carry a weapon, concealed or otherwise, into a bar or tavern).[57] The spread of concealed carry laws since 1986 in those states that tend to be in support of gun rights has led to the widespread, legally permitted, carrying of concealed handguns by civilians in many parts of the United States. Opinions on gun control can vary within a jurisdiction. In general, large urban jurisdictions tend to favor gun control to reduce crime, while rural populations and small towns oppose it for much the same reason.
The legal status of carrying concealed weapons is a political issue in many states. This roadside sign appears in a state that requires training and a permit to carry concealed weapons.
Though gun control is not strictly a partisan issue, there is generally more support for gun control legislation in the Democratic Party than in the Republican Party.[58] The Libertarian Party, whose campaign platforms favor classical liberal (i.e. limited) government and individual rights, is outspokenly against gun control, and this stance is more ideological than the stance of the Republican Party, which represents people who tend to oppose gun regulations.
Types of firearms
Political scientist Earl Kruschke has described how, in the gun control debate, firearms have been viewed in only three general classes by gun control advocates: 1) long guns 2) hand guns and 3) automatic and semi-automatic weapons. The first category has generally been associated with sporting and hunting uses; the second category, handguns, describe weapons which can be held with one hand such as pistols and revolvers; and the third general category has been most commonly associated in public political perception with military uses. Notably the AR-15 and AK-47 style firearms have contributed to this perception.
If sometimes confused in public debate, the two firearm types in the third general category are functionally and legally distinct. Fully automatic firearms of any kind (including military assault rifles) have been subject to requirements for registration by owners and licensing of dealers since the passage of the National Firearms Act in 1934. Further import restrictions were part of the Gun Control Act of 1968, and the transfer of newly manufactured machine-guns to private citizens was banned with passage of the Firearm Owners Protection Act in 1986.[59]
New machine-guns in the US are still legal for purchase by the military and by governmental agencies, including civilian law enforcement; pre-1986 registered machine-guns are available to private citizens with federal registration (where permitted by state law), and have reached high market prices, eagerly sought by collectors because of their relative scarcity. An expansion has occurred in the number of states where such automatic weapons may legally be owned; for example, automatic-weapons were legalized in Kansas in 2008, subject to federal NFA regulations.[59]
Many semi-automatic versions of fully automatic military assault riflesand the larger 20- or 30-round magazines they typically useceased to be prohibited for purchase by private citizens by US federal law after the "sunsetting" of the 1994 Federal Assault Weapons Ban on September 14, 2004. Some continue to be banned due to a 1989 amendment of the Gun Control Act which made importing of some foreign-made firearms illegal, but similar US-made firearms are not forbidden.[60][61]
In general terms, gun control advocates have paid little concern to the long guns used for sporting purpose as long guns are generally not viewed as associated with violent crime or suicide. For example, in 2011, 72% of the 8,583 homicides committed using firearms in the United States were committed using handguns, compared to 4% with rifles, 4% with shotguns, 1% with other guns, and 18% with type of firearm not specified. Non-criminal (i.e., acts of self-defense) and criminal homicides were not distinguished.[62]
Kruschke describes incidents where public political perceptions have been shaped by a few high profile violent crimes associated with automatic and semi-automatic weapons, resulting in a relatively small percentage of the crime in absolute numbers, none-the-less have brought public focus on that type of weapon.[63]
Kruschke states, however, regarding the fully automatic firearms owned by private citizens in the United States, that "approximately 175,000 automatic firearms have been licensed by the Bureau of Alcohol, Tobacco, and Firearms (the federal agency responsible for administration of the law) and evidence suggests that none of these licensed weapons has ever been used to commit a violent crime."[64]
Likewise, Kruschke states that automatic weapons are different than common semi-automatic hunting weapons, as the "most common examples [of automatic weapons] are machine guns, submachine guns, and certain types of military and police rifles."[65] This recognizes that there are semi-automatic household guns that are in widespread use like the .22 caliber Marlin Model 60 hunting rifle. Similarly, although Kruschke claims long guns are not being used in suicide, there are in fact instances of long guns that are used for suicides.[66]
Pro-gun groups claim that confusing voters about different types of guns continues to be a strategy of gun-control groups, who in turn claim that certain types of firearms are either particularly unsafe, particularly likely to be used in crime, or particularly unsuited for "sporting purposes," and therefore should be banned. The types of guns so designated has included: any small, inexpensive handgun ("junk gun" or "Saturday night special"[67]), any handgun weighing more than 50 ounces,[citation needed] any handgun not incorporating either new "smart-gun"[68] or "micro-stamping"[69] abilities, all handguns,[70] semi-automatic "assault weapons" (using either the 1994 definition[71] or a more expansive definition[72]), and .50 caliber rifles.[73]
Political arguments of gun politics in the United States center on disagreements that range from the practical does gun ownership cause or prevent crime? to the constitutional how should the Second Amendment be interpreted? to the ethical what should the balance be between an individual's right of self-defense through gun ownership and the People's interest in maintaining public safety? Political arguments about gun rights fall under two basic questions:
Does the government have the authority to regulate guns?
If it does, is it effective public policy to regulate guns?[43]
The first category, collectively known as rights-based arguments, consist of Second Amendment arguments, state constitution arguments, right of self-defense arguments, and security against tyranny and invasion arguments. Public policy arguments, the second category of arguments, revolve around the importance of a militia, the reduction of gun violence and firearm deaths, and also can include arguments regarding security against foreign invasions.
Courts and the law
Supreme Court decisions
Since the late 19th century, with three key cases from the pre-incorporation era, the Supreme Court consistently ruled that the Second Amendment (and the Bill of Rights) restricts only the federal Congress, and not the States, in the regulation of guns.[77] Scholars predicted that the Court's incorporation of other rights suggests that they may incorporate the Second, should a suitable case come before them.[78]
"Americans also have a right to defend their homes, and we need not challenge that. Nor does anyone seriously question that the Constitution protects the right of hunters to own and keep sporting guns for hunting game any more than anyone would challenge the right to own and keep fishing rods and other equipment for fishing or to own automobiles. To "keep and bear arms" for hunting today is essentially a recreational activity and not an imperative of survival, as it was 200 years ago. "Saturday night specials" and machine guns are not recreational weapons and surely are as much in need of regulation as motor vehicles." Ex-Chief Justice Warren Burger, 1990.[79]
Until recently, there had been only one modern Supreme Court case that dealt directly with the Second Amendment, United States v. Miller.[80] In that case, the Supreme Court did not address the incorporation issue, but the case instead hinged on whether a sawed-off shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated militia."[78] In quashing the indictment against Miller, the U.S. District Court for the Western District of Arkansas stated that the National Firearms Act of 1934, "offend[ed] the inhibition of the Second Amendment to the Constitution." The federal government then appealed directly to the US Supreme Court. On appeal the federal government did not object to Miller's release since he had died by then, seeking only to have the trial judge's ruling on the unconstitutionality of the federal law overturned. Under these circumstances, neither Miller nor his attorney appeared before the US Supreme Court to argue the case. The Court only heard argument from the federal prosecutor. In its ruling, the Supreme Court overturned the trial court and upheld the law. For a more complete reading of this case, see Reynolds, Glenn Harlan and Denning, Brannon P., "Telling Miller's Tale" . 65 Law & Contemp. Probs. 113 (Spring 2002).[81]
District of Columbia v. Heller
See also: District of Columbia v. Heller and Firearm case law in the United States
On June 26, 2008, in District of Columbia v. Heller,[82] the United States Supreme Court affirmed, by a 5-4 vote, the decision of the D.C. Circuit Court of Appeals.[83] This decision struck down the D.C. gun law. It also clarifies the scope of the Second Amendment to the United States Constitution, stating that it stipulates an individual right irrespective of membership in a militia. However, the court made it clear that like other rights, the right to bear arms is not without limitations, leaving open the prospect of governmental regulation. The decision declined to rule on the incorporation of the Second Amendment, leaving its applicability to the states unsettled ("While the status of the Second Amendment within the twentieth-century incorporation debate is a matter of importance for the many challenges to state gun control laws, it is an issue that we need not decide."[84]).
McDonald v. Chicago
Further information: McDonald v. Chicago
June 28, 2010, Chicago gun control law struck down 5 to 4. "The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States."
Gun laws
Mall of America sign giving notice that state law allows private establishments to prohibit guns on the premises.
See also: Gun laws in the United States (by state) and Gun law in the United States
Gun control laws and regulations exist at all levels of government, with the vast majority being local codes which vary between jurisdictions. The NRA reports 20,000 gun laws nationwide.[85] A study published in the American Journal of Preventive Medicine notes 300 federal and state laws regarding the manufacture, design, sale, purchase, or possession of guns.[86]
At the federal level, fully automatic weapons, short barrel shotguns, and short barrel rifles have been taxed and mandated to be registered since 1934 with the National Firearms Act. The Gun Control Act of 1968 adds prohibition of mail-order sales and prohibits transfers to minors. The 1968 Act requires that guns carry serial numbers and implemented a tracking system to determine the purchaser of a gun whose make, model, and serial number are known. It also prohibited gun ownership by convicted felons and certain other individuals. The Act was updated in the 1990s with the Brady Handgun Violence Prevention Act, mainly to add a mechanism for the criminal history of gun purchasers to be checked at the point of sale, and in 1996 with the Domestic Violence Offender Gun Ban to prohibit ownership and use of guns by individuals convicted of misdemeanor domestic violence.
The 1994 Violent Crime Control and Law Enforcement Act enacted the now-defunct Federal Assault Weapons Ban, which banned the purchase, sale, or transfer of any weapon specifically named in the act, other weapons with a certain number of "defining features", and detachable magazines capable of holding more than 10 rounds of ammunition, that had been manufactured after the beginning date of the ban. The Assault Weapons Ban expired in 2004, but H.R. 6257 introduced June 12, 2008 sought to re-instate the ban indefinitely as well as to expand the list of banned weapons. The bill ultimately died in committee. New York, California, Massachusetts, Hawaii, Connecticut, and New Jersey and several municipalities have codified some provisions of the expired Federal ban into State and local laws.
Gun Free School Zones Act of 1995
The Gun-Free School Zones Act of 1990 severely limited where a person may legally carry a firearm, although this was voided by United States v. Lopez as exceeding Congress' Commerce Clause authority.[87] The act was passed again in its current form in 1995. The act makes it generally unlawful for an armed citizen to travel on any public sidewalk, road, or highway, that passes within one thousand (1000) feet of the property line of any K-12 school in the nation. Only if one has a state permit to carry a firearm are they exempt from the one-thousand foot rule. In which case, depending on the laws of the individual states, full access to the schools is lawful under the Act. "(B) Subparagraph (A) does not apply to the possession of a firearm ...(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located"
Rate of homicides by firearm
Main article: Gun violence in the United States#Homicides
See also: List of countries by intentional homicide rate
The United States has about five percent of the total world population but residents of the United States own about 42 percent of all the world's civilian-owned firearms. In 2009, according to the UNODC, 60% of homicides in the United States were perpetrated using a firearm.[88]
The table below compares the rate of firearm ownership in the United States with that of several other countries and the number and rate of homicides by firearm.Country Civilian firearms per 100 residents[89] Number of homicides by firearm[90] Homicide by Firearmsrate per 100,000 population[90] Homicide rate per 100,000 population[90]
United States of America [91] 89 9,960 3.2 4.8
Switzerland [92] 46 40 0.52 0.7
Sweden[93] 31.6 18 0.19 1.0
France[94] 31.2 142 0.23 1.1
Canada [95] 31 173 0.5 1.6
Germany[96] 30 158 0.2 0.8
Mexico 15 11,309 10 23.7
Australia[97] 15 30 0.1 1.0
Turkey[98] 12.5 3.3
United Kingdom[99] 6 18 0.03 1.2
Japan[100] 0.6 11 <0.01 0.4
Note: Statistics are for latest year available, usually 2009 or 2010.
U.S. homicides by firearm vary widely from state to state. In 2010, the lowest homicide by firearm rates were in Vermont (.3) and New Hampshire (.4) and the highest were in the District of Columbia (16.0) and Louisiana (7.8).[101]
"Let me issue and control a nation's money and I care not who writes the laws. - Mayer Rothschild
"Civil disobedience is not our problem. Our problem is civil obedience! People are obedient in the face of poverty, starvation, stupidity, war, and cruelty. Our problem is that grand thieves are running the country. That's our problem!" - Howard Zinn
"If there is no struggle there is no progress. Power concedes nothing without a demand. It never did and never will" - Frederick Douglass
"A WELL REGULATED MILITIA": THE SECOND AMENDMENT IN HISTORICAL PERSPECTIVE
27th January 2013
Chicago-Kent Law Review
Symposium on the Second Amendment, vol. 76, 2000: 195
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
"A WELL REGULATED MILITIA": THE SECOND
AMENDMENT IN HISTORICAL PERSPECTIVE
Paul Finkelman*
About the author: A specialist in American legal history, constitutional law, and race and the law, Professor Paul Finkelman is the author of more than 150 scholarly articles and more than 30 books. His op-eds and shorter pieces have appeared in the New York Times, the Washington Post, USA Today, and on the Huffington Post. He was recently named the ninth most cited legal historian according to "Brian Leieter's Law School Rankings."
A well regulated Militia, composed of gentlemen freeholders, and other freemen, is the natural strength and only stable security of a free Government. George Mason[1]
The history of the Second Amendment is rooted in English conflicts between the king and his people. It involves the relationship between the standing army and the militias during and after the English Civil War. It also involves the struggles of the colonists against the Crown before and during the Revolution.
This English background is useful, and certainly interesting, but the history of the drafting and adoption of the Second Amendment emerges out of far more immediate events. The failure of the national government under the Articles of Confederation prompted the call for a convention to revise the Articles.
While American leaders were contemplating calling a convention to revise the Articles, violent resistance to traditional law enforcement¾most notably Shays's Rebellion in Massachusetts¾underscored the sense of crisis that many Americans felt. Farmers led by Captain Daniel Shays marched on local courthouses in western Massachusetts, shutting down the courts and intimidating judges and others. Eventually militia companies from eastern Massachusetts dispersed Shays and his followers.
The delegates to the Philadelphia Convention met with this event fresh in their memories and with the knowledge that the government under the Articles of Confederation would probably be [Page 196] helpless in a similar situation. Thus, when he introduced the Virginia Plan at the Philadelphia Convention, Governor Edmund Randolph "commented on the difficulty of the crisis" facing the nation and spoke of "the necessity of preventing the fulfillment of the prophecies of the American downfall."[2] Randolph "then proceeded to enumerate the defects" in the present government, noting that "the confederation produced no security against foreign invasion; congress not being permitted to prevent a war nor to support it by their own authority" and that "neither militia nor draughts being fit for defence on such occasions, enlistments only could be successful, and these could not be executed without money."[3] He pointed out that "the federal government could not check the quarrels between states, nor a rebellion."[4] He expressed his admiration for those who had written the Articles of Confederation, but noted that they had produced that document when the inefficiency of requisitions was unknown no commercial discord had arisen among any states no rebellion had appeared as in Massts.¾foreign debts had not become urgent¾the havoc of paper money had not been foreseen¾treaties had not been violated¾and perhaps nothing better could be obtained from the jealousy of the states with regard to their sovereignty.[5]
Most of the Convention delegates agreed with Randolph's analysis and quickly moved from revising the Articles of Confederation to writing a wholly new Constitution. In the end, they produced a document that strengthened the national government and provided a framework for a viable national defense. Opponents of the new form of government¾Antifederalists who feared a strong national government¾proposed numerous amendments in the state conventions called to ratify the Constitution. The Antifederalists also expressed their fears of the new Constitution in an enormous amount of public commentary.[6]
Though the public commentary fell into two general classes, the [p. 197] bulk of the proposed amendments were designed to remake the Constitution by severely limiting the power of the national government. If the Antifederalists had succeeded, the United States would have reverted to a decentralized collection of sovereign states with a weak national congress, an almost invisible federal judiciary, and a powerless military with virtually no standing army.
Not surprisingly, the Federalists who dominated the First Congress rejected all of these structural changes and did little to alter the power of the national government under the new Constitution. The Federalists did, however, offer a series of amendments that, for the most part, recognized existing limitations on the national government under the new Constitution.
The Bill of Rights confirmed that the national government would not trample on the rights of conscience, deny people due process of law, or impose cruel and unusual punishments on convicted criminals. While some of its provisions actually created new rights¾such as the right to counsel in the Sixth Amendment¾most of the amendments simply confirmed what the national government could not do under the Constitution. The Second and Tenth Amendments reconfirmed existing relations between the states and the national government but did not create any new rights or structural relationships. In particular, the Second Amendment reconfirmed that even though the national Congress would have the primary responsibility for arming and organizing the state militias, the states could maintain their own militias, if Congress failed to do its job.
I. THE ANTIFEDERALISTS' GOALS
During the debates over ratification, Governor Patrick Henry of Virginia and many other Antifederalists used the absence of a bill of rights in the Constitution to galvanize opposition to ratification. They persisted, from beginning to end, in claiming that the Constitution would create a tyranny and that the failure to insert a bill of rights was an indication of the desire of the framers to take away the liberties of the American people.
However, for the most dedicated opponents of the Constitution, the demand for a bill of rights was fundamentally a ruse. They truly hoped to defeat the Constitution and thus either leave the Articles of Confederation in place or force a second convention that would have created a substantially weaker national government than the Philadelphia Convention had proposed. [Page 198]
The Antifederalist plan for stopping ratification of course ended in July 1788, when they were outmaneuvered in their two most important strongholds¾Virginia and New York. New Hampshire's ratification had supplied the necessary ninth state to have the Constitution go into effect. Ratification in Virginia and New York not only put the Federalists well over the top but, more importantly, brought the most populous state (Virginia) and the state with the nation's most important seaport (New York) into the government.
As they met with defeat in one state after another, the Antifederalists fell back to their secondary position of demanding amendments to alter the nature of the government.[7] Thus, in a number of the states, the defeated Antifederalists proposed amendments that they hoped would be added after ratification. Though this was not an ideal strategy for the Antifederalists, it was their last hope. Some of these amendments contained suggestions that would have created a bill of rights, but most of the Antifederalist proposals were crippling amendments that would have resulted in a weaker Constitution.
The Antifederalists wanted the state ratifying conventions to endorse their proposed amendments. But this support was not always possible since the Antifederalists negotiated from a position of weakness compared to the Federalist majorities in the state conventions.[8] In Pennsylvania, for example, the Federalist majority completely ignored the Antifederalists, who then issued their Reasons of Dissent as a pamphlet.[9] In Maryland, the Antifederalists met with the same fate and resorted to a newspaper publication of their proposed amendments.[10] As Herbert Storing notes, the Maryland [Page 199] Antifederalists tried to get the convention to endorse their amendments in return for a promise that the Antifederalists would support the Constitution. But, having successfully ratified the Constitution, the Maryland Federalists "brushed aside" the deal offered by the Antifederalists who had just been soundly defeated.[11]
On the other hand, in Massachusetts, New Hampshire, and Virginia, the Federalist majorities included the proposed amendments as part of the official proceedings of the ratifying conventions to placate large Antifederalist minorities. This compromise also occurred in New York. Though the Antifederalists were the majority in that state, a substantial minority of them voted to ratify the Constitution because ten states had already done so. In addition, growing support for the Constitution in and around New York City convinced many Antifederalist delegates at the New York convention that their constituents now wanted ratification.[12] John Jay, a Federalist leader, helped bring this about by a preemptive strike: he proposed that the convention delegates attach a list of recommended amendments to its ratification. This arrangement "embarrassed the Antifederalists"[13] by compelling them to admit the weakness of their position and, in a sense, forcing them to accept the best deal they could negotiate with the Federalists. Jay's move led to a compromise with the more moderate Antifederalists, who agreed to vote for ratification in exchange for Federalist endorsement of recommended amendments. To sweeten the deal, Jay also offered to support a circular letter calling for a second convention; this was a "sham compromise that was in fact a total surrender" by the Antifederalists.[14] In the end, enough Antifederalists voted for ratification to get the document through the New York convention. Appended to the ratification was an absurdly long list of proposed changes that included some thirty-two amendments plus twenty-five statements of principles.[15]
By the end of the ratification process, the conventions in [Page 200] Massachusetts,[16] South Carolina,[17] New Hampshire,[18] Virginia,[19] and New York[20] had appended to their ratification documents various proposed amendments to the Constitution. In addition, the Antifederalists in Pennsylvania[21] and Maryland[22] had published their own recommended amendments. The officially endorsed amend-ments numbered over one hundred, but many of the separate amendments actually covered many topics. Thus, the total number of proposed amendments was at least two hundred. Many concerned issues we normally think of as Bill of Rights protections. However, the majority of the Antifederalist demands were structural in nature, designed to remake the Constitution by weakening the national government. By eliminating duplications, "about 100 separate proposals can be distinguished," and a "clear majority" of these called for structural changes.[23]
When Madison proposed what became the Bill of Rights in Congress, he ignored virtually all of the structural proposals, which, not surprisingly, infuriated the hard-core Antifederalists. Indeed, the refusal of Madison and his committee to even consider the long list of structural changes proposed by the Virginia Ratifying Convention led Virginia's two senators, William Grayson and Richard Henry Lee, who were the only Antifederalists in the U.S. Senate, to publicly denounce the proposed amendments.[24] They did not approve of Madison's proposed amendments because they believed the amendments would undermine their cause, prevent the calling of a second convention, and yet leave the structure of the Constitution [Page 201] intact. As Madison explained to Jefferson, even before the Constitution was ratified, the Antifederalists wanted to "strike at the essence of the System," and either return to the government of the old Confederation, "or to a partition of the Union into several Confederacies."[25]
A good example of what the Antifederalists really wanted can be found in the Virginia convention's list of forty proposed amendments. The first twenty proposals formed "a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable Rights of the People."[26] Only a few proposals were structural in nature, such as a requirement for rotation in office and a prohibition on hereditary offices.[27] Most proposals dealt with the civil liberties that are today protected by the Bill of Rights subsequently adopted in 1791.[28]
After this list of twenty amendments, which would form a "Bill or Declaration of Rights," the Virginia delegates wrote twenty more proposed changes called "Amendments to the Body of the Constitution."[29] With the exception of one proposal dealing with juries, this list contained proposals that would have remade the powers of the government and revamped the political process. Many of the proposals would have hamstrung the operations of the national government, weakened all three branches of the government, and rendered the system more cumbersome.
This second list, which was by far the more important list for Antifederalists like Patrick Henry, proposed a wholesale remaking of the system of government. The Virginia Antifederalists wanted super-majorities in Congress for many important government functions, including: (1) a three-fourths majority of both houses for all noncommercial treaties, (2) a two-thirds majority of the Senate for the adoption of all commercial treaties, (3) a two-thirds majority in each house of Congress for all regulations of commerce (which the Antifederalists called navigation laws), and (4) a two-thirds majority in Congress to maintain a peacetime army.[30] They also clamored for mandatory term limits (rotation in office, as they called it) for [Page 202] presidents and severely limited federal jurisdiction over what became the District of Columbia.[31] Aside from the Supreme Court, these Antifederalists would have allowed only "courts of Admiralty."[32] They would have permitted impeachment trials of senators by "some Tribunal other than the Senate" and limited the power of the national government to collect taxes in the states.[33]
Antifederalists in other states wanted similar changes that would have cut the heart out of the new Constitution. Virtually all the Antifederalists would have rewritten the judiciary article to the point where the federal court system would have been unrecognizable and our resulting constitutional history would have been altered in unimaginable ways.[34] Delegates to the New York Ratifying Convention, with its large Antifederalist majority, proposed structural changes similar to those the Virginia Antifederalists demanded. A Constitution amended to satisfy these New Yorkers would have limited federal diversity jurisdiction only to cases involving land grants, prohibited any federal treaty from operating against a state constitution (thus undermining the Supremacy Clause), and proscribed Congress from granting monopolies.[35] In addition, the New Yorkers would have limited power with the following requirements: (1) a two-thirds majority in both houses of Congress to borrow money or to declare war, (2) strict temporal limitations on the suspension of habeas corpus, (3) mandatory rotation in office for U.S. senators, and (4) prohibitions on federal capitation taxes and on the creation of intermediate appellate federal courts.[36] The New Yorkers also suggested limitations on the president's pardon power and on the federal power to adopt bankruptcy laws.[37] Antifederalists in Massachusetts and New Hampshire similarly sought to limit federal court jurisdiction, prohibit the federal government from granting monopolies, and restrict the federal government's power to tax.[38]
The fact that the majority of Antifederalist proposals were structural, rather than libertarian, underscores the fact that the most [Page 203] prominent Antifederalists were only marginally interested in a bill of rights. Indeed, among the hard-core Antifederalists it is clear that the argument about a bill of rights was, for the most part, a stalking horse for their larger goal¾to undermine the strength of the new central government. Antifederalist leaders like Henry and Lee really wanted to defeat the Constitution and either go back to the old system or force a second convention where they could rewrite the document along the states' rights lines that interested them. But, having failed to defeat the Constitution, they strove for crippling amendments that went to the very structure of that document. James Madison believed that the Antifederalist leaders were really involved in a "conspiracy agst. direct taxes" which was "the real object of all their zeal in opposing the system."[39] Madison believed their ultimate goal was to destroy the power of the national government to levy any taxes and thus "re-establish the supremacy of the State Legislatures."[40] Thus, they vociferously demanded a bill of rights before the Constitution was ratified in hopes that the purported lack of libertarian protections would persuade more moderate Americans to help them defeat ratification. But, once the Constitution was ratified, they were no longer interested in a bill of rights and instead wanted a wholesale restructuring of the Constitution.
This quick overview of the major Antifederalist demands illustrates how out-of-step they were with the Federalist majorities in the ratifying conventions and how decisively they were defeated in 1787-88, when the Constitution was ratified. Similarly, they were even more out-of-step with the massive Federalist Congressional majority in 1789, which proposed the Bill of Rights. In 1789-91, the hard-core Antifederalists suffered their final defeat, as Federalists and moderate Antifederalists accepted the Bill of Rights, and with it, the victory of the Constitution itself.
The Second Amendment arose out of the conflict between Federalists and Antifederalists over those portions of the Consti-tution that dealt with the militia and the national army. But it was ultimately tied to the larger Federalist-Antifederalist conflict over the nature of the new government itself. [Page 204]
II. THE CONSTITUTION, THE MILITIA, AND THE NATIONAL ARMY
The framers in Philadelphia gave Congress and the president shared responsibility for the ultimate control of the militia. They also gave state governments important responsibilities and powers in organizing and training militias, while at the same time taking ultimate authority from the states.
Article I of the Constitution gives Congress power to "declare War,"[41] "to raise and support Armies,"[42] to "maintain a Navy,"[43] to make "Rules for the Government and Regulation of the land and naval Forces,"[44] to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions,"[45] and "to provide for organizing, arming, and disciplining, the Militia."[46] Furthermore, Article I declares that the states may not "keep Troops, or Ships of War in time of Peace."[47] Article II makes the president of the United States the "Commander in Chief of the Army and Navy" and "of the Militia of the several States, when called into the actual Service of the United States."[48] These provisions also contain two important limitations. Congress can only appropriate money for the military for two years,[49] and the states retain the power to appoint all militia officers and to train the militia, provided this training complies with "the discipline prescribed by Congress."[50]
Taken together, these provisions contemplated two levels of military protection for the new nation: (1) a national army created and governed solely by Congress and ultimately under the authority of the president in his capacity as commander in chief, and (2) a system of state militias, essentially organized and under control of the states, but subject to regulation by Congress and to "federalization" at the command of the president. Part of that regulation included the idea that the national government had the power¾and the obligation¾to provide arms for the local militias.[51] As Rufus King [Page 205] explained at the Convention, "arming meant not only to provide for uniformity of arms, but included authority to regulate the modes of furnishing, either by the militia themselves, the State Governments, or the National Treasury."[52] Thus, the defense of the United States would rely on both the state militias and the standing army.
For a variety of reasons, most Antifederalists feared these arrangements. They were most concerned about the federal standing army. According to the traditional Whig and Republican ideology of the period, a standing army threatened the liberties of a free people.[53] This argument was rooted in English history, where the army was traditionally a remote mercenary force, disconnected from the people, and under the direct control of a hereditary monarch. The experience of the Revolution also led to hostility for the standing army. For example, in 1770, after Lord Hillsborough sent British troops to American soil, Benjamin Franklin reportedly felt that the British army had been sent to silence the protests of the colonial settlers, rather than cure the problems of which they complained.[54] The Declaration of Independence, which Franklin later helped write, polemically, but accurately, included the standing army in its laundry list of complaints against the king:
He has kept among us, in times of peace, Standing Armies without the Consent of our Legislature.
He has affected to render the Military independent of and superior to the Civil Power.
He has . . . given . . . his Assent to . . . acts of pretended Legislation:
For quartering large bodies of armed troops among us.[55]
Madison and other Federalists believed that the Constitution directly responded to these issues in several ways. In the Constitution, the military was triply under civilian control: Congress regulated all branches of the military, the president was the ultimate commander in chief of all the military, and the governors controlled the state militias when not under federal authority. Meanwhile, appropriations for the military were limited to two years, thus preventing a true standing army from taking control. The only [Page 206] "military" provision of the Declaration not directly addressed by the Constitution was the fear of the "quartering of large Bodies of Troops among us." Wisely, the framers left that problem to the political process. Given the close proximity to the British in Canada, the Spanish in the west, and Native Americans everywhere, it would have been foolish indeed to prohibit the placement of troops close to population centers.[56] Ironically, of course, modern civic leaders across the nation avidly compete for the location of forts and bases in their communities. The complaint of many communities like Fort Dix, New Jersey, is that Congress, the president, or some faceless base-closing commission has refused to continue to quarter "large Bodies of Troops among us."
The Antifederalists proposed amendments that would have altered these provisions of the Constitution. Had the Antifederalists succeeded, the United States would have become a fundamentally different, and weaker, nation. However, Madison and his colleagues in Congress soundly rejected the Antifederalist proposals.
III. ANTIFEDERALIST HOPES: THE CASE OF THE PENNSYLAVANIA MINORITY
At the end of the Pennsylvania Ratifying Convention, the Antifederalists were soundly defeated. After that state convention, they published their Reasons of Dissent.[57] Part of this document contained a list of fourteen proposed amendments to the Constitution. Some of these proposals¾those dealing with the protection of individual libertarian rights and legal due process¾were later incorporated, almost word-for-word, into the Bill of Rights. The essence, and in some places the exact language, of the Free Exercise [Page 207] Clause[58] and the Free Press and Speech Clauses[59] of the First Amendment are found in these fourteen proposals, as are the essence and language of the Fourth,[60] Fifth,[61] Sixth,[62] Seventh,[63] and Eighth[64] Amendments. Elements of the Tenth Amendment are also found in the proposals.[65] Congress ignored a number of other proposed amendments on taxation, the size of the House of Representatives, the power of the federal courts, and treaty-making power.
The Pennsylvania Antifederalists also proposed amendments concerning the army, the militia, the right to bear arms, and the right to hunt. These amendments addressed at least six separate issues: (1) the right of self-protection through the ownership of weapons, (2) the right to serve in the militia, (3) the right to hunt and fish, (4) the prevention of a standing army, (5) the power of Congress over the states, and (6) the power of the states to control their own armies or militias.[66] The proposals, which are found in three of the fourteen [Page 208] amendments offered by the Pennsylvania minority, help us understand the intentions of the framers of the Second Amendment. This understanding, however, is a negative one. By seeing what the framers of the Second Amendment did not do, we can better understand what they did do.
Had the proposals of the Pennsylvania Antifederalists on this issue been written into the Bill of Rights, the Second Amendment might be the least controversial of the first ten Amendments. It is of utmost significance, however, that unlike other aspects of the Pennsylvania proposals, which were incorporated into the Bill of Rights almost word-for-word, Madison and his colleagues in the First Congress emphatically rejected the goals and the language of the Pennsylvania Antifederalists on these issues.
Thus, it is useful to consider what Congress might have written, but did not. Number Seven of the amendments listed in the Reasons of Dissent provided
[t]hat 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 for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers.[67]
Number Eight, an entirely separate provision, asserted that:
The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times, on the lands they hold, and on all other lands in the United States not enclosed, and in like manner to fish in all navigable waters, and others not private property, without being restrained therein by any laws to be passed by the legislature of the United States.[68]
Number Eleven from the dissenters' list was the only one that contained two separate paragraphs. At first glance the paragraphs seem entirely separate and oddly juxtaposed. Careful examination suggests a connection. The first paragraph declared
[t]hat the power of organizing, arming, and disciplining the militia (the manner of disciplining the militia to be prescribed by Congress) remain with the individual states, and that Congress shall not have authority to call or march any of the militia out of their own state, without the consent of such state, and for such length of [Page 209] time only as such state shall agree.[69]
The second paragraph of Number Eleven asserted "that the sovereignty, freedom, and independency of the several states shall be retained, and every power, jurisdiction, and right which is not by this constitution expressly delegated to the United States in Congress assembled."[70] This second paragraph, when tied to the previous one, underscores the connection many Antifederalists saw between state sovereignty and the control of the state militia.
If Congress in 1789 had accepted these proposals of the Pennsylvania minority, then one might persuasively argue that the Constitution, as amended, guaranteed a personal and individual right of Americans to own weapons "for the defense of themselves and their own state, or the United States, or for the purpose of killing game."[71] Both the personal self-defense interests and the "American sportsman" interests of organizations of gun owners would then have been explicitly protected by the Bill of Rights. We might argue today about what sort of weapons are protected. It is not clear that such provisions would today protect the private ownership of Saturday night specials, assault rifles (however Congress might define them), submachine guns, sawed-off shotguns, bazookas, or flamethrowers. But, whatever fell in or out of the protected arena, the constitutional principle of private ownership of weapons would have been clear.
Had Congress added these provisions to the Bill of Rights, we would also have a very different country than we have today, assuming, of course, that we still would have a country. It is entirely possible that the provisions limiting both a standing army and the power of the national government to call up the militia would have long ago led to a destruction of the nation from either outside forces or internal disruptions.
If we contemplate the implications of the Pennsylvania proposals¾especially in light of subsequent developments in American history¾we immediately see why Congress completely rejected the Pennsylvanians' demands for state control of the militia and for personal ownership of guns.
Such provisions might have prevented the Washington administration from effectively suppressing the Whiskey Rebellion or the Madison administration from calling out troops to face down the [Page 210] British in 1812. Without the ability to call up the militia, President Andrew Jackson might not have successfully stood up to the nullificationists in South Carolina.[72] In responding to the Nullification Proclamation in 1832, President Jackson reminded the citizens of South Carolina that "disunion by armed force is treason,"[73] and made it clear that this behavior would be met by military force equal to the task of crushing the rebellion. This stance would not have been possible if the states had retained full control of the militias or if the national government had been precluded from disarming rebellious citizens. Similarly, if the Pennsylvania Antifederalists had succeeded, it is unlikely that the Pierce administration could have used the Massachusetts militia to help return the fugitive slave Anthony Burns from Boston in 1854.[74]
Then, of course, there is the war of 1861-65¾variously called the Civil War, the War Between the States, the War for Southern Independence¾but rarely any more called by its only official name, the War of the Rebellion.[75] Had the restrictive provisions of the Pennsylvania minority been enacted, President Lincoln might have been unable to call out the state militias to suppress the rebellion.
Madison and his colleagues could not have predicted the Whiskey Rebellion, the Nullification crisis, or the Civil War. But they were shrewd enough to know that the lack of national military power¾and with it the power to disarm those who are in rebellion or might be in rebellion¾would undermine any national state. Having just created a stronger national state in the wake of Shays's Rebellion and similar rebellions in other states,[76] the Federalists in Congress, [Page 211] many of whom had been in the Philadelphia Convention, the state ratifying conventions, or both, took no steps to undermine the ability of the national government to protect itself from enemies without or rebels and traitors within.
If the Second Amendment had responded to the demands of the Pennsylvania minority and similar demands from other Antifederalists, the national government would have been severely, perhaps fatally, weakened from the beginning. Congress would have been unable to regulate the use, ownership, or display of firearms in those places where it has plenary jurisdiction, such as the District of Columbia, the federal territories, or overseas possessions and lands, such as present day Puerto Rico and the Virgin Islands.
At the time of the drafting of the Constitution, "every state had gun control legislation on its books."[77] But, an amendment along the lines of the Pennsylvania Antifederalists' would have prevented such a law in the federal district.[78] It also might have prevented preemptive strikes against pirates, illegal slave traders (after 1808), filibusters preparing for the illegal invasion of Latin American countries,[79] or others gathering weapons for illegal purposes.
As previously discussed, one of the primary reasons for calling the Constitutional Convention was the fear that without a stronger central government the new nation would be unstable, militarily weak, and might not survive. In 1786, disgruntled farmers in western Massachusetts, led by Captain Daniel Shays, had shut down courts and threatened a full-scale civil war in the Bay State. Some militia units had joined the rebels before militiamen from eastern Massachusetts finally dispersed Shays's followers.[80] Shays's Rebellion had deeply frightened the elected political leaders who governed the nation after the Revolution. As Edmund Randolph noted when he introduced the Virginia Plan at the Philadelphia Convention, the "rebellion [that] had appeared . . . in Massts"[81] underscored the need [Page 212] for a stronger government.
The Federalists at the Philadelphia Convention wanted a government that would have the prestige, organizational apparatus, tax revenue, and military power to suppress such rebellions in the future. Indeed, Shays's Rebellion helped convince many of the need for a new constitution with a strong national military.
The kind of amendments that the Pennsylvania minority wanted would have undermined these powers and the new government itself. Such amendments would have crippled the national government's ability to suppress insurrections, regulate trade with the Indians,[82] fight piracy, or even prevent crime in the federal district (now Washington, D.C.), in the federal territories, and wherever else federal jurisdiction existed. Thus, in drafting the Bill of Rights, James Madison and his Congressional colleagues emphatically rejected the sweeping provisions of the Pennsylvania minority and other Antifederalists relating to the military, the militia, and firearms[83] and instead adopted a much more limited amendment, directed at only one particular issue: the preservation of the organized state militias as a military force. The Congressmen of 1789 were not interested in protecting the rights to "killing game," "to fowl and hunt in seasonable times," "to fish in all navigable waters," or even to guarantee that people should be able to "bear arms for the defense of themselves."[84] Congress was certainly on notice that demands for explicit protections of such rights were on the table and could easily have put such language into the Bill of Rights. Madison, along with the rest of Congress, was well aware of the Reasons of Dissent, which was printed in numerous Pennsylvania papers, including the important Pennsylvania Packet, and was also published as a broadside.[85] The fact that Madison and Congress did not propose amendments along the lines demanded by the Pennsylvania minority leads to a prima facie conclusion that they did not intend to incorporate such protections into the Bill of Rights. [Page 213]
IV. THE BILL OF RIGHTS: PRESERVING THE CONSTITUTION
Why is it that Madison and his colleagues rejected the demands of the Pennsylvania Antifederalists on the issues of guns, the militia, and the national military? The Second Amendment, like the others in the Bill of Rights, was designed to preserve the Constitution as written in 1787 by adding to the Constitution a bill of rights that did not fundamentally alter the nature of the national government or significantly limit its powers.
In examining what became the Second Amendment, it is also critical to remember that Madison, who proposed the amendments, had, in fact, little enthusiasm for them. His paternity as the father of the Bill of Rights was truly reluctant.[86] When Madison introduced the amendments to the House of Representatives, he did not argue with passion or conviction for his proposal. He told Congress that he had "never considered" a bill of rights "so essential to the federal constitution" that the lack of one should have been allowed to impede ratification.[87] But, with the Constitution ratified, Madison was willing to concede "that in a certain form, and to a certain extent," a bill of rights "was neither improper nor altogether useless."[88] While proposing amendments that were neither "improper" nor "useless," Madison was careful, as he noted in a private letter to Edmund Randolph, to make sure that "the structure & stamina of the Govt. [were] as little touched as possible."[89] It is this goal of Madison¾to protect the "structure & stamina" of the new government¾that most illuminates the very limited nature of what became the Second Amendment.
In general, Madison saw the Bill of Rights as clarifying the meaning of the Constitution and not fundamentally changing its nature.[90] He had no problem expressly protecting freedom of religion, for example, because he did not think that the purpose of the Constitution was to allow Congress to regulate religion, even where Congress had plenary jurisdiction.[91] Similarly, he had no desire to deny the right of a jury trial in federal prosecutions and so had no [Page 214] problem explicitly protecting that right in the Sixth Amendment.[92] In the same way, Madison did not think that the purpose of the Constitution was to allow the national government to dismantle or disarm the state militias. Since some people feared the Federalists might do this,[93] Madison was willing to put a provision in the Bill of Rights explicitly stating that Congress would not disarm the state militias. At the same time, he had no interest in preventing Congress from regulating weapons in the places where Congress had clear legislative power. Thus, Madison did not accept the sweeping proposed amendments of the Pennsylvania Antifederalists on this issue. Madison had worked for a strong government, with a national army and the power to federalize state militias, at the Philadelphia Convention. He had no interest in undermining this strength in the Bill of Rights either by prohibiting a standing army, removing the power of the national government to control the state militias, or by permitting individual citizens or groups of them to have unfettered access to weapons.[94]
Indeed, given what was accomplished in 1787, it would have been out of character for Congress, dominated as it was by supporters of the new Constitution, to cripple the new government's ability to control dangerous, musket-toting elements of the population like Daniel Shays. Similarly, it would have been out of character to take the citizens' army¾the militia¾and turn it over to the complete control of state governors, who might not be sympathetic to the policies of the national regime. Not surprisingly, in the Bill of Rights, including what became the Second Amendment, Congress did not take such drastic actions.
V. THE BILL OF RIGHTS: A GREAT FEDERALIST VICTORY
It is commonplace among some scholars to view the struggle for the Bill of Rights as a victory for the Antifederalists, the original opponents of the Constitution. At first glance, this argument makes a certain sense. Many Antifederalists argued that they feared a strong central government because the Constitution lacked a bill of rights. If the Constitution had a bill of rights, these Antifederalists claimed, they could then support the system of government created in [Page 215] Philadelphia. Because the Antifederalists asked for a bill of rights, some scholars incorrectly see the adoption of the Bill of Rights as a successful counterattack by the Antifederalists.
This argument is, at best, only half true. Certainly it is unlikely that the Federalists, who completely dominated the new government, would have proposed and passed a bill of rights if the Antifederalists had not called for one. But it is clear that the Bill of Rights adopted by Congress, and sent on to the states, contained only a tiny portion of what the Antifederalists wanted. Moreover, these changes were in many ways the least important in the minds of the Antifederalist leadership, like Patrick Henry and Richard Henry Lee. Hard-core Antifederalists considered the Bill of Rights to be a "tub to the whale,"[95] designed to distract the people away from calling a second convention to substantially rewrite the Constitution.
One insight into the Antifederalist disappointment over the amendments comes from a cursory glance at the order of the states that ratified them. Five of the first six states to ratify the Bill of Rights were Federalist strongholds.[96] Virginia, the state most often associated with the call for a bill of rights, was actually the last state to ratify the ten amendments that became the Bill of Rights.
The story of ratification of the Bill of Rights in Virginia illustrates just how much the Antifederalists' demand for amendments became a defeat for their cause. Patrick Henry, the most powerful political figure in this Antifederalist stronghold, disliked the proposed amendments. Henry had campaigned against the Constitution because he wanted to defeat it and start all over. He used the lack of a bill of rights as an argument against the Constitution; but when offered the Bill of Rights in 1789, he balked.[97] Henry fully understood that a bill of rights would destroy the possibility of achieving his real goal, which was to destroy or completely undermine and remake the new Constitution. Henry and his cohorts correctly realized that if the lack of a bill of rights were no [Page 216] longer an issue, many of the softer Antifederalists would be satisfied with the Constitution and accept the new government. Thus, in the fall of 1789, Virginia's two U.S. senators, William Grayson and Richard Henry Lee, urged their state to defeat the Bill of Rights and to hold out for more sweeping amendments.[98] Following this plan for more than two years, Patrick Henry prevented the Virginia legislature, which he dominated, from ratifying the new amendments.[99] Henry was hoping that in these two years Americans would come to accept his view that the stronger national government was dangerous to the liberty of the people.[100] But, in Virginia, precisely the opposite happened. Two intervening elections sapped much of Henry's strength in the Virginia Assembly, which finally ratified the Bill of Rights in December 1791.[101]
Ultimately the Antifederalists were triple losers. They failed to prevent ratification of the Constitution, they failed to make ratification conditional on the adoption of a whole series of amendments, and in the end, they failed to gain acceptance of what they considered to be their most important amendments. The Virginia Antifederalists, for example, proposed forty separate amendments to the Constitution, including twenty to the "Body of the Constitution."[102] Congress ignored these twenty and a good number of the other twenty that would have made up a "Declaration or Bill of Rights."[103] New York's proposed amendments take up seven printed pages, with fifty-nine separate paragraphs and scores of proposed changes. New Hampshire modestly proposed only twelve changes, and Massachusetts a paltry eight. But, had Congress accepted all, or most, of the proposals from the ratifying conventions of just these four states, along with the demands of the Pennsylvania minority, it would have effectively rewritten the Constitution, creating an entirely different kind of government.
Again, we should not be surprised that this result did not happen. Most Federalists wanted no changes in the Constitution. They believed a bill of rights was unnecessary because the new national government, as a government of limited and enumerated powers, [Page 217] could not threaten fundamental rights and individual liberties. Nevertheless, Federalists in the First Congress were willing to accept amendments that enumerated basic civil liberties and procedural rights or explicitly reaffirmed limitations on the national government that they believed were already in the Constitution of 1787. These amendments were neither designed to affect, nor did they affect, the structure of the Constitution or the new national government formed under it. In presenting them to Congress, Madison was unequivocally "unwilling to see a door opened for a re-consideration of the whole structure of the government, for a re-consideration of the principles and the substance of the powers given."[104] The Bill of Rights was emphatically neither a Constitution,[105] nor a significant alteration of the political relationships created by the Constitution. The Bill of Rights did not shift any political power from the national government to either the states or "the people." It merely clarified the powers, rights, and responsibilities that the national government had under the Constitution.
The hard-core Antifederalists, of course, did not condone Madison's proposed amendments precisely because they believed that the amendments would undermine their cause, while leaving the structure of the Constitution intact. They wanted to "strike at the essence of the System," and either return to the government of the old Confederation "or to a partition of the Union into several Confederacies." [106]
As the "loyal opposition" in the ratification process,[107] the Antifederalists were responsible for placing the demand for a bill of rights on the national agenda. Moreover, their demands forced the Federalists to respond. The accomplishment of the Antifederalists was to pressure the Federalists to add a bill of rights to the Constitution. But in a sense, this "accomplishment" was their failure. The Antifederalists, especially the hard-core opponents of the Constitution led by Patrick Henry, did not want to modify the Constitution with a bill of rights so that it would be more palatable to the people; they wanted to totally undermine the Constitution or [Page 218] replace it with something else. This, they failed to achieve.
VI. FEDERAL POWER TO SUPPRESS VIOLENCE
In addition to creating national military powers, the Constitution contains a series of clauses that empowered Congress to suppress the activities of people who threatened the public order. Certainly the framers anticipated that most law enforcement would be at the local level, but they also knew that some would be at the national level.
Thus, Congress had the power to punish counterfeiting,[108] to "punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,"[109] to "suppress Insurrections and repel Invasions," by employing the militias,[110] and to suppress the African Slave Trade after January 1, 1808.[111] Congress could also "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."[112] The U.S. government also was obligated to "protect" each state from "Invasion" and "domestic Violence."[113]
As previously noted, some of the impetus for the Constitution stemmed from the violence of Shays's Rebellion and the general fear of anarchy. This motivation was clear during the Convention, as Randolph's first speech suggests.[114] Even before the delegates met in Philadelphia, those who would emerge as Federalists argued for a strong and vigorous government to defeat anarchy. In the months before the Convention, Alexander Hamilton declared, "It might be said that too little power is as dangerous as too much, that it leads to anarchy, and from anarchy to despotism."[115] And, just as the Convention began serious work, Henry Knox, who was not a delegate, wrote that "we are verging fast to anarchy and that the present convention is the only means to avoid the most flagitious evils that ever afflicted three millions of freemen."[116] [Page 219]
At the Convention, delegates picked up on this theme and tied it to the military. Charles Pinckney argued that a strong national government was necessary to create "a real military force."[117] He noted that "the United States had been making an experiment without" a strong military, "and we see the consequence in their rapid approaches toward anarchy."[118] James Wilson believed the nation had to worry about "anarchy & tyranny within" but also needed to be strong to avoid "wars" and to make "treaties."[119] Wilson argued that a weak government would be "liable to anarchy & tyranny."[120] Hugh Williamson feared that "the probable consequences of anarchy in the U.S." would be military force against the states, which in turn would lead to tyranny.[121] Thus, the framers wrote a Constitution that made the state militias subordinate to the national government and guaranteed that the national government would have the power to enforce its laws.
After the Convention, Federalists hammered home this theme. Writing as "Publius," Alexander Hamilton argued that "[a] Firm Union will be of the utmost moment to the peace and liberty of the States" and would prevent "domestic faction and insurrection."[122] The alternative was a society "kept in a state of perpetual vibration between the extremes of tyranny and anarchy."[123] Only the Constitution could prevent the recurring "tempestuous waves of sedition and party-rage."[124] With the Constitution ratified, George Washington could only hope the new system would work as planned:
The business of this convention is as yet too much in embryo to form any opinion of the conclusion. Much is expected from it by some; not much by others; and nothing by a few. That something is necessary, none will deny; for the situation of the general government, if it can be called a government, is shaken to its foundation, and liable to be overturned by every blast. In a word, it is at an end; and, unless a remedy is soon applied, anarchy and confusion will inevitably ensue.[125] [Page 220]
Madison was not even as hopeful as the great man from Mount Vernon. In private correspondence, Madison argued that the government created by the Constitution was still too weak. Shortly before the Convention ended, he wrote in secret code to Jefferson, who was still in France, that the plan of government "will neither effectually answer its national object nor prevent the local mischiefs which every where excite disgusts agst the state governments."[126] In late October, he still bemoaned that the Convention had not adopted his proposal to give Congress a "constitutional negative on the laws of the States."[127]
Clearly, supporters of the Constitution, who thoroughly dominated Congress in 1789 when the Bill of Rights was written, had no intention of undoing their handiwork with a series of debilitating amendments that would weaken the national government. They emphatically rejected attempts to undermine the power of the government to control weapons of war and to suppress a revolution. For example, they rejected a New Hampshire suggestion for an amendment to prohibit the creation of a standing army "in time of Peace unless with the consent of three fourths of the Members of each branch of Congress."[128] Though the New York Antifederalists would have banned standing armies altogether,[129] the First Congress would not accept such a limitation. It refused to compel the nation to wait until the rebellion had actually started before it could organize an army and step in to disarm another Daniel Shays.[130]
Not surprisingly, then, when Madison reluctantly and unenthu-siastically[131] proposed his amendments, he wanted to be certain that "the structure & stamina of the Govt. [were] as little touched as possible."[132] He also "limited" his proposed amendments "to points which are important in the eyes of many and can be objectionable in those of none."[133] Thus, Madison tried to avoid controversial political issues affecting the structure of the government and concentrated on [Page 221] alterations that would preserve individual liberty. He thought that "nothing of a controvertible nature ought to he hazarded" because that might defeat the amendments and lead to renewed support for a second convention.[134] He told Edmund Randolph that he had avoided anything of a "controvertible nature" because of the "caprice & discord of opinions" in the House and Senate, which had to approve the amendments by a two-thirds vote, and in the state legislatures, three-fourths of which had to approve the amendments.[135] The amendments had a "twofold object of removing the fears of the discontented and of avoiding all such alterations as would either displease the adverse side, or endanger the success of the measure."[136]
Finally, we must remember that those who created the United States understood the nature of a revolution¾they had participated in one. In the Declaration of Independence they certainly asserted the right "to alter or to abolish" any government.[137] But, with a democratic republic created by the Constitution, the need for a violent revolution disappeared. Every two years there would be an opportunity to participate in an orderly process to replace the existing government. Some of the very early state constitutions, written during the Revolution itself, not surprisingly endorsed the right of revolution. However, the framers of 1787 did not endorse such a right. The Constitution does not have a suicide clause in it, and no one intended that it should have such a clause. Indeed, as John Marshall said even before the Convention finished its deliberations, "nothing but the adoption of some efficient plan from the Convention can prevent Anarchy first, & civil Convulsions afterwards."[138] After the Convention, Oliver Ellsworth, who would precede Marshall as Chief Justice, summed up this position: "Anarchy, or a want of such government as can protect the interests of the subjects against foreign [Page 222] and domestic injustice, is the worst of all conditions."[139] The goal was to prevent anarchy, violence, and rebellions. This prevention was accomplished by controlling the militias and the army and by retaining the right to limit weapons to those who formed "A well regulated Militia."
President Jackson made this point clear during the Nullification Crisis, when warning South Carolina to step back from the brink of secession and constitutional disaster. Responding to the Palmetto State's claim to a Revolutionary-era heritage, Jackson reminded the nullifiers that they were "free members of a flourishing and happy Union," and that "there [was] no settled design to oppress [them]."[140] Jackson's point, which Lincoln would reiterate to the South in 1861, was that the Constitution contemplated numerous ways for unhappy citizens, or even states, to protest federal legislation, but that these means did not include nullification, secession, or any other sort of rebellion.
The Constitution provided for a standing army and for the national government to arm and provide rules and regulations for state militias, which could be federalized when necessary. The Second Amendment allows for these state militias, which were "well regulated" under statutes passed by Congress, but the Amendment was clearly not designed to insure some sort of permanent revolutionary potential. Indeed, allowing for armed, unregulated citizens, who could threaten the public order and the national state, was unnecessary, unwise, and utterly in conflict with the "more perfect Union" the framers had created in Philadelphia. The "father of the Constitution," as Madison is often called, did not draft the Bill of Rights to undo his hard work at Philadelphia.
VII. ANTIFEDERALIST FEARS OF FEDERAL MILITARY POWER
Antifederalists, of course, thought the Constitution created a government that was too strong. Hostile to a strong central govern-ment, they feared the concentration of power, including military power, in the hands of the new president and Congress. Among their many fears, they worried that the military clauses in the Constitution might [Page 223] threaten the states in one of two quite contradictory ways.
Some Antifederalists feared that the ability of the new government to nationalize the state militias was the first step towards a military dictatorship. As early as 1783, George Washington had argued for stronger national control over the militias. In his Sentiments on a Peace Establishment,[141] Washington argued for drawing a select group of men, either as volunteers or draftees, from the state militias to serve in a national army.[142] As many scholars have noted, and as his own letters show, Washington had little use for the militias and would probably have happily seen them wither away while a trained, professional army maintained the defense of the nation.[143] Henry Knox, the secretary of war under the Articles of Confederation, proposed a less drastic form of nationalized training for the state militias and their removal from the states, when necessary, for no more than a year at a time.[144] However, such proposed reforms were fruitless, because the states rejected them.[145] Virginia tried to institute Washington's modest proposal that militia officers be chosen on the basis of ability, rather than social class and connections, but that reform fell flat on its face.[146]
The Constitution offered a remedy for these proposals by allowing for the nationalization of militia training and rules and by allowing the federalization of the militias under the president's control when necessary "to execute the Laws of the Union, suppress Insurrections and repel Invasions."[147] But such powers truly frightened the Antifederalists.
"Philadelphiensis" feared that the "president general" would be able to "order . . . the militia to exercise, and to march when and where he pleases."[148] In Maryland, an Antifederalist writing as "A Farmer and Planter," worried that with such a provision, the national government would levy oppressive taxes and that when people [Page 224] refused to pay them, the
great Lords and Masters . . . [would] send the militia of Pennsylvania, Boston, or any other state or place, to cut [their] throats, ravage and destroy [their] plantations, drive away [their] cattle and horses, abuse [their] wives, kill [their] infants, . . . ravish [their] daughters, and live in free quarters, until [they] get into a good humour, and pay all that they may think proper to ask of [the people], and [they] become good and faithful servants and slaves.[149]
The new government would, in effect, be able to federalize the militia of one state and use it against another.[150] The national government might also be able to use a local militia, under federal officers, to attack their neighbors. This ability, the opponents of the Constitution feared, would be the first step to tyranny.
The next step would be to actually take over the state militias, ordering them here and there to suppress liberty. Mercy Otis Warren, writing as "A Columbian Patriot," echoed this fear, complaining that under the Constitution "the militia of the country, the bulwark of defence, and the security of national liberty [would] no longer [be] under the controul of civil authority" but instead would be under the control of the president and the Senate.[151] Warren, carried away by her own rhetoric, referred to the president and Senate as "the Monarch" and "the aristocracy."[152]
While some Antifederalists feared the federalization of the militia, others feared the national government would simply destroy the militia. John DeWitt, writing in Massachusetts, complained that the organizers of the new government "[did] not mean to depend upon the citizens of the States alone to enforce their powers."[153] DeWitt argued that the only protection of a free state against tyranny was "a well regulated militia, composed of the yeomanry of the country" which had always "been considered as the bulwark of a free [Page 225] people."[154] He worried that the national government would "neglect to arm, organize and discipline the men" in the state militias,[155] thus making them weak and ineffective. Then a standing army could easily defeat the state militias and take over the nation. Similarly, Brutus, writing in New York, predicted that men would be "impressed from the militia" and forced into the national army.[156]
Other Antifederalists tied the taxing power to the creation of a national army. Brutus devoted an entire essay to the combined power of the United States "to borrow money . . . and to raise and support armies."[157] Indeed, a common theme among many Antifederalists was the fear of national taxes that would be collected by military force. One way of accomplishing this end was to cripple the military and thus prevent the national government from having the force to suppress tax rebellions. The Antifederalists could not figure out whether this force would be the federalized militia, as "A Farmer and a Planter" feared, or a standing army that could easily defeat a demoralized and untrained state militia, as DeWitt feared. But, either way, the strong national government, with its strong military, was the enemy. The plans of Washington outlined in his Sentiments on a Peace Establishment,[158] or the less drastic suggestions of Secretary of War Knox, only confirmed the dangers imposed by the military clauses of the new constitution. By 1787-88 both men had become ardent Federalists, and everyone assumed that if the Constitution were ratified, Washington would be president. The Antifederalists had strong reasons to fear that the new government might indeed destroy the state militias.
Thus, the opponents of the Constitution proposed amendments to limit the national government, including many changes in the military structure. As we know, these proposals failed to gain any substantial support in Congress.
VIII. THE DEBATE IN CONGRESS AND THE LANGUAGE OF THE AMENDMENT
There is frustratingly little of the Congressional debates over the [Page 226] Bill of Rights available to modern scholars. The Senate for this period kept no records of its debates, but only records of bills, motions, and votes. The House spent little time on the drafts that became the Second Amendment. The debate began with Madison's first draft of the proposed amendment, which stated that, "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 b
"Let me issue and control a nation's money and I care not who writes the laws. - Mayer Rothschild
"Civil disobedience is not our problem. Our problem is civil obedience! People are obedient in the face of poverty, starvation, stupidity, war, and cruelty. Our problem is that grand thieves are running the country. That's our problem!" - Howard Zinn
"If there is no struggle there is no progress. Power concedes nothing without a demand. It never did and never will" - Frederick Douglass
Only from my cold dead hands can anyone steal my arms.
I grew up not shooting a .22 rifle in "camps", at age 12 I was given the right to WITH PERMISSION and KNOWLEDGE of my family use a bolt action Marlin .22 rifle. The next morning I had a new job. I was up and out the door at 04:30 with my rifle to kill the groundhog that was tearing the half acre (a half football field) garden up. I did but it was a little different than I was led to expect from TV shows.
Within a few seasons I was granted the use of various long arms for hunting and eliminating varmints like the groundhog above. Firearm safety was not the purview of any government, it was taught by the family. It was reinforced by reality using firearms as ONLY ANOTHER TOOL and seeing what firearms do.
(I never touched a pistol until the USMC handed me a 1911 Colt .45 to qualify with. Pistols are useless on the home place - except to kill a person and in that case the 12 gauge pump works better than a pistol --- hopefully the sound of racking the pump convinces the intruder to get gone).
On the home place in the sticks of my youth, the fastest way to lose the permission was to violate safety rules.
In this age of repression by Government, no matter the law I will NEVER give up the rights I have now.
Nor will I ever surrender arms to anyone.
I have never had a firearm accidentally discharge, I have never accidentally shot anything or anyone I did not fully intend to shoot before the well maintained weapon was in my hand(s).
The damned USG once paid me to carry a junk weapon paying damn little for the job. It liked to blow or not fire at all and jam so nicely. Thanks Curt Le May you SOB.
Now the agenda has changed and some endorse the US Government's coming 2nd Amendment Abridgment.
Only the criminals and US Government criminals will be armed if this BS keeps up. I guess except some like me that will refuse to obey a law to disarm me and mine. I'm no criminal but can be made into one for freedom sake.
Totalitarian Regimes must first disarm their own people.
THE ONLY EXCUSE FOR VIOLENCE IN ANY FORM WITH OR WITHOUT WEAPONRY IS TO PROTECT OR DEFEND ONE'S SELF OR OTHERS. OK and protect property of the same people.
BUT I DEMAND IN THESE TIMES TO RETAIN THE MEANS TO RESIST AND THEREBY THE POSSIBILITY TO RESIST OPPRESSION BY ANYONE.
Ask yourself this question. Would Dan'l Boone have registered his bullet mold and powder horn? Would he have given them up to the Redcoats? To the Continental Army?
This is 200 years later? The danger today is a real as Dan'l's day, just not as furry or red-skinned. Nor as obvious as in Dan'l's day. The boiling frog thing.
On this point my decision was actually made long ago, in 1980 when I woke to PIGS violating my home without a warrant. This was before RReagan "no knock laws".
Nothing came of it all except I was changed. Wrong address wrong name their ass bigtime. It was an intimidation psyop I know now.
Before that illegal home invasion I was around no weapons and like my Father after military service we were allergic to hunting and shooting for sport. Neither one of us enjoys/enjoyed hunting to this day.
I would bet that Ruby Ridge and Waco and 9-11 were factors in my Fathers like change about the 2nd Amendment Rights. It was that time frame he changed too and bought an M1 Carbine and a 9 mm.
As I was awakened in 1980.
With a month I joined the NRA. A leftist member of the NRA. Imagine that.:jawdrop:
Jim
My aircraft is grounded for icing conditions.
A new trend among gun lovers: Armed demonstrations inside state capitals. Several hundred gathered legally in Oregon and Washington's legislative lobbies armed with conceal carry permits and loaded weapons to support their gun-toting "fellow patriots," with more planned. What could go wrong? Oh yeah, another shooting today, with at least three dead, in a Delaware courthouse.
"You never change things by fighting the existing reality. To change something, build a new model that makes the existing model obsolete.â€
Buckminster Fuller
The US will never "give up the right to bear arms" as Canada, GB, Australia etc. have done.
This nation fought one revolution against European based Elite's monarchy of extreme oppression, in effect subjugation to colonial slavery and over-taxation to support a bloated Empire and exploiting elite classes. Balancing an over-spent royal enterprise budget on the backs of the Americans and other "colonials".
"Citizens not subjects" is/was the issue that had to be enforced with arms, not debating points, hot lead headed down range quickly and accurately and concentrated.
The exchange of dispatches 1780:
"Stop shooting our Officers at long range, it isn't sporting!"
"Sporting Sir? Shut the f*ck up and go home or die!"
Familiar today to any American are the same issues: Over taxation and oppression for the sake of the international elite. Today the oppressors are closer than in 1770.
It is a cultural and ingrained thing in American culture. A patriot must always be ready to defend his or her country from his or her government.
It is an American view that "the only freedoms a citizen has are the rights exercised in daily life".(Operative term being citizen - not anyone's subject).
The 2nd Amendment as Mr. Bill Kelley pointed out was WRITTEN SPECIFICALLY TO PROTECT THE ABILITY OF WE-THE-PEOPLE TO RESIST AN ABUSIVE GOVERNMENT AS THE ROYAL HOUSE OF LONDON IS AND WAS.
Aside from the fact that the US saved Britain's bacon twice in european wars. European wars the American People wanted NO DAMN PART OF EITHER TIME. So those uncouth and over-sexed Yanks with their ability to shoot better and fight better were useful once, no twice.
The US Army and the Red Army defeated the european fascists in WW2. Fact not propaganda.
The Japanese fascists we did almost completely alone with the 'Roos. Thanks God FDR told Churchill the US would not take back the SE Asian lands to hand back to the Brit Empire. The SE Asian wargames could have begun in 1944 instead of 1955.
OK reality says the start was 1945 but that was a French choice to kill "colonials", inferior "gooks" for Empire and Michelin Rubber Corporate interests based in France.
Yeah the Yanks told the Brits, the French and the Dutch where to get off spending American blood for elite empires in 1941. The Atlantic Charter.
History talks facts not rhetoric.
Don't expect the Americans to meekly submit to authority. It is a deeply held American cultural distrust of authority no matter how nicely finished the velvet glove around the iron fist. It is a large part of who Americans are to distrust power.
We will secure our own freedom as WeThePeople always have.
To secure that freedom WeThePeople can't use rhetoric. Unfortunately blood is the only currency freedom and liberty accept as payment.
Don't judge the gun owners with the lunatics that get the news coverage.
Joe 6 pack Yank isn't going to tell you how to run your country. So don't try to dictate to the Americans what you think ought to be done. Nosy neighbors may be tolerated but not for long.
Nor will Joe and Josephine 6-Pack be swept up in BS to allow himself or herself to be disarmed by a corrupt law. That way can only LEAD TO TYRANNY and it always has in history.
"Live Free or Die" is not just a license plate motto. It is a way of thought and life. We Yanks kind of like the idea as a warning to any and all oppressors, foreign and domestic.
Read not to contradict and confute;
nor to believe and take for granted;
nor to find talk and discourse;
but to weigh and consider.
FRANCIS BACON
