History: 2nd Amendment - Hypothesis on creation, not interpetation

[Flex]

Okay,

I’ve had a hypothesis for the last couple of years that I would like to spread around.

Laws usually reflect, to some extent, the society which creates them. A society which bans a practice usually means that someone in the society was performing the thing that the society thinks is disgusting, immoral, or wrong. For example, the laws banning bestiality are probably in place because some people performed that act and the rest of society is disgusted with it. If no one actually had sex with an animal, the question about it’s being immoral would probably not arise.

It’s harder to think of things which are not banned, but which people would think of as being disgusting. I’m certain this creative group could think of a few examples.

So, looking at the 2nd amendment to the Constitution of the United States in this light, what prompted the authors of the Bill of Rights to include it? Most of the other amendments are about fairly general rights, which were discussed, in a general fashion for years. But the 2nd amendment is an exception. It is very specific. So what prompted the authors of the Bill of Rights to include it?

Just for the record, I do not think that the author’s of the Bill of Rights could foresee the current debates over the meaning of the 2nd amendment. Sorry, they may have been the best educated men of the day, but they were still men. I discount prescience as a reason.

So, we have to look at events which occurred close to the period of the 2nd Continental Congress to see which events may lead to the formation of the 2nd amendment.

We don’t have to look far. Shay’s Rebellion occurred during the meeting of the 2nd Continental Congress, and would have been fresh in the minds of the author’s of the 2nd amendment. It even seems that the 2nd Continental Congress even discussed Shay’s Rebellion in detail, encouraging the formation of the ‘Virginia Plan’ which gave us the strong federal government over the ‘New Jersey Plan’ which gave more power to the states.

But that doesn’t really answer why the 2nd amendment was added.

My hypothesis is that the Massachusetts Legislature attempted to enact a piece of gun control legislation. I don’t find it in any of the passed bills during that period, but the mere fact that it would have been introduced would have been known. This would have encouraged the author’s of the Bill of Rights, who would have been concerned that without a standing army the militia needs to be ready to mobilize at any moment, to include the 2nd amendment in the Federal Constitution.

Is this a reasonable hypothesis? Is anyone aware of proposed Massachusetts’ bills from 1786 through 1791 which may have attempted to limit gun ownership? Does anyone want to do research on this issue? I have no evidence at all.

Finally, someone may have already formulated this hypothesis, and so I have a bit of egg on my face. No matter. If someone does know better, please point me to the any evidence available.

-Flex

P.S. Why in this forum rather than in the History Forum? Well, I think this forum is much more fun. -F

Disclaimer: I am not attempting to interpret the 2nd amendment in any fashion. I am interested in learning the motivation for its inclusion. Please do not let this thread degrade into the meaning of the 2nd amendment, for this discussion it’s interpretation is immaterial. –F.

[NarrMaster]

Personally, it is my belief that the 2nd amendment was included to protect the 1st, 3rd, 4th, 5th, and 6th amendments from encroachment by an oppressive government.

And no, I am not a member of a right-wing militia.

[RandFan]

Quote:

Originally posted by Flex
Just for the record, I do not think that the author’s of the Bill of Rights could foresee the current debates over the meaning of the 2nd amendment. Sorry, they may have been the best educated men of the day, but they were still men. I discount prescience as a reason.

I'm guessing they hadn't considered photos of naked children or ridding crops inserted into men's rectums and fingers inserted into men's urethras (Mapplethorpe) or a libelous parody accusing a preacher of intercourse with his mother (Larry Flint) either. Further I don't think they considered 10 year olds downloading porn from an internet web site (*www.whitehouse.com).

I'm not sure of the relevance of this point.

*No longer a porn site.

Edited to add: As it pertains to the 1st Amendment.

[Meadmaker]

Quote:

Originally posted by Flex

My hypothesis is that the Massachusetts Legislature attempted to enact a piece of gun control legislation.

Is this a reasonable hypothesis?

No. It is not.

A reasonable hypothesis would be that the King of England, or Parliament or someone, tried to enact a piece of militia control legislation. On April 19, 1775, the British soldiers went to seize weapons from the local Massachusetts militia at Concord. They weren't trying to seize the guns of the soon to be embattled farmers, just the arms of the local militia.

The federalist papers speak at length about the need to have local militias, with their own weapons, with officers drawn from local troops, willing to defend their liberty against all attackers, including, implicitly, the central government.

One way to see that this is the case is to study the history of the phrase "to bear arms". In 18th century English, that phrase is not synonymous with "to carry weapons" or "to own weapons". It is synonymous with "to join an army". When one understands this, the existence of the phrase "a well regulated militia being necessary.." becomes obvious.

(Of course, someone could disprove this hypothesis by finding a single instance of English usage prior to 1800 in which the phrase "to bear arms" referred to an individual going about his own business, independent of any armed force.

Of course, the second ammendment does more than guarantee the right to bear arms. It also guarantees the right to "keep arms", which sounds to me a lot like "own weapons". From what I have read, the supporters of the ammendment believed that private ownership was necessary to be sure that men would have arms when they were called upon to bear them.

[Flex]

Quote:

Originally posted by Meadmaker
No. It is not.

A reasonable hypothesis would be that the King of England, or Parliament or someone, tried to enact a piece of militia control legislation. On April 19, 1775, the British soldiers went to seize weapons from the local Massachusetts militia at Concord. They weren't trying to seize the guns of the soon to be embattled farmers, just the arms of the local militia.

Hmm.

Your point is well taken. I know the Federalist Paper speak at length about the need to keep a militia ready. Not that I've seen any evidence that the British were attempting to enact gun control laws. Instead, confiscation is illustrated by this example not laws dealing with control.

Your point does not explain why it was fresh in the minds of the authors of the Bill of Rights. Not overtly at least. I concede that an argument may well have developed concerning the mere possibility of a state enacting gun control laws. Yet, the actions of the British, at this point a foreign nation, a decade previously seems little related to the precision of the language used.

Again, invoking my original argument, a constitutional amendment trumps any laws a state makes. But if the states were not attempting to make a law, and all agreed with the necessity of keeping the local militia trained and ready, why would such a law be included in the Bill of Rights?

The answer I infer from your statement, and the statements from other posters, is that the authors of the Bill of Rights were far more forward looking than seems reasonable and forsaw that states may attempt, sometime in the future beyond 1790, to enact gun control legislation. I don't buy that. I believe that they were looking at the problems, and proposed solutions, to the violence in their own time.

BTW, you didn't address the reasonableness of my hypothesis. All you did was provide another hypothesis of your own. While the discussion of the phrase "to bear arms" is interesting, I do not see how it applies to this particular discussion. That falls into the catagory of interpetation, not creation.

Cheers,

-Flex

[Flex]

Quote:

Originally posted by NarrMaster
Personally, it is my belief that the 2nd amendment was included to protect the 1st, 3rd, 4th, 5th, and 6th amendments from encroachment by an oppressive government.

And no, I am not a member of a right-wing militia.

Belief is a wonderous thing, but do you really think that the authors of the Bill of Rights had oppressive government in mind when they wrote the Bill of Rights? I tend to doubt it, as the 2nd Constitutional Congress chose the 'Virginia' plan, which calls for a strong federal government, over the 'New Jersey' plan which calls for a weak one.

The rights provided in the 1st, 3rd, 4th, 5th, and 6th amendments have never, to my knowledge, been defended at the point of a gun. Instead the rights provided by the 1st, 3rd, 4th, 5th, and 6th amendments have been defended by the courts. (And even expanded by the courts in some cases.)

To suggest that the men writing the Bill of Rights deliberatly included a section promoting a violent means of defending the Bills they were drafting from the government seems a bit odd to me. I suspect that if you suggested this to them they would reply, "If you are attacking the government anyway, why do you think any government laws apply to you?"

I have to believe that the 2nd amendment was included in order to give the new federal government the ability to quickly raise troops to defend the nation from a foreign attack, or to quell an uprising within. That is, the 2nd amendment was included to help defend the federal government, not overthrow it.

Modern interpetations vary somewhat from this view.

Cheers,

-Flex

[Suddenly]

Quote:

Originally posted by Flex

To suggest that the men writing the Bill of Rights deliberatly included a section promoting a violent means of defending the Bills they were drafting from the government seems a bit odd to me. I suspect that if you suggested this to them they would reply, "If you are attacking the government anyway, why do you think any government laws apply to you?"

Not really. The framers had a healthy respect for the right of the people to overthrow an unjust government, and were not so arrogant to believe that the one they were creating would be always just. Thus, they wanted it to at least respect the right of people living under the government to retain the physical ability to revolt.

Thus, one could live peacefully under a government without forfeiting the ability to overthrow that government if it became unjust. This is where your final assertion about illegal conduct comes apart. Holding the option to revolt is a completely different issue from actually revolting.

Jefferson's revolution every twenty years and all that...

Quote:

I have to believe that the 2nd amendment was included in order to give the new federal government the ability to quickly raise troops to defend the nation from a foreign attack, or to quell an uprising within. That is, the 2nd amendment was included to help defend the federal government, not overthrow it.

Modern interpetations vary somewhat from this view.

Cheers,

-Flex

That seems far-fetched if we accept that the Bill of Rights are created as limitations on federal power... The whole point of the Constitution is to strictly define and limit federal power to keep it from overwhelming the rights of the people and the soverignty of the States... To suggest that one of these provisions is not for that purpose but to rather increase federal power seems a bit strange...

[RandFan]

Quote:

Originally posted by Flex
To suggest that the men writing the Bill of Rights deliberatly included a section promoting a violent means of defending the Bills they were drafting from the government seems a bit odd to me. I suspect that if you suggested this to them they would reply, "If you are attacking the government anyway, why do you think any government laws apply to you?"

If one reads what they were saying at the time then I don't think it is odd at all.

"The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure."
--Jefferson

[Flex]

Quote:

Originally posted by LegalPenguin
Not really. The framers had a healthy respect for the right of the people to overthrow an unjust government, and were not so arrogant to believe that the one they were creating would be always just. Thus, they wanted it to at least respect the right of people living under the government to retain the physical ability to revolt.

Thus, one could live peacefully under a government without forfeiting the ability to overthrow that government if it became unjust. This is where your final assertion about illegal conduct comes apart. Holding the option to revolt is a completely different issue from actually revolting.

This seems a rather fine distiction to draw. The authors of the Bill of Rights saying, in effect,"You have the option to revolt, but we don't ever expect you to use this option." I find it hard to believe that they were saying that. Further, even without the 2nd amendment you have the option to revolt against your government. The argument that the 2nd amendment makes it easier to revolt is not a very strong one.

Quote:

Originally posted by LegalPenguin
That seems far-fetched if we accept that the Bill of Rights are created as limitations on federal power... The whole point of the Constitution is to strictly define and limit federal power to keep it from overwhelming the rights of the people and the soverignty of the States... To suggest that one of these provisions is not for that purpose but to rather increase federal power seems a bit strange...

Funny, I thought that the point of the Constitution was to create a federal government with enough power to enforce it's laws. As opposed to the Articles of Confederation which limited the powers at the federal level to just about nothing.

The limitations on the power of the federal government imposed by the Bill of Rights have some basis in things governments sometimes do. I.e. the right to a speedy trial, or the right to reasonable bail. So, Meadmaker's point may be valid in that the seizure of guns by the British may be a primary influence on the writing of the 2nd amendment.

However, the 2nd amendment seems to be the only amendment where the authors seem to need to explain their reasons for including it. The other amendments just baldly state the restriction, "Congress shall make no law respecting the establishment of a religion....", etc. The restrictions do not have any explaination as to why they are necessary.

The 2nd amendment however provides the reason for it's inclusion, "A well-regulated militia being necessary for the security of a free State,...." This suggests to me that the authors of the Bill of Rights found it necessary to explain this amendment. Which does set it apart from the others.

The militia being under the control of congress, and a general agreement that a standing army was a contributor to the European wars, suggests to me that the authors were being very specific in limiting the power of the states in regulating gun ownership. Which suggest to me that some state was attempting to regulate gun ownership.

So far I have seen nothing that refutes my hypothesis. Although I freely admit I have no evidence for my hypothesis either. I find the idea interesting, but I don't have the time to pursue it. If someone else finds the idea interesting, and desires to pursue it, I reliquish all rights to the idea.

BTW, Jefferson was the Ambassador to France when the Constitution was being drafted. Using quotes from his writings do not suggest that the framers of the Consitution agreed with him. This does not mean the Jefferson didn't have any effect on the Bill of Rights, but a quote from TJ is not evidence in this case.

Cheers,

-Flex

[Suddenly]

Quote:

Originally posted by Flex
This seems a rather fine distiction to draw. The authors of the Bill of Rights saying, in effect,"You have the option to revolt, but we don't ever expect you to use this option." I find it hard to believe that they were saying that. Further, even without the 2nd amendment you have the option to revolt against your government. The argument that the 2nd amendment makes it easier to revolt is not a very strong one.

Find it hard all you want... the record seems clear that the framers didn't want a national government that could uniformly impose its will on the states and the people...

I happen to believe that it protects the rights of the people to join state militias absent interference from the federal government....

Quote:

Funny, I thought that the point of the Constitution was to create a federal government with enough power to enforce it's laws. As opposed to the Articles of Confederation which limited the powers at the federal level to just about nothing.

Stronger than the articles of Confederation doesn't really say much. They were still wary of central power, and that is why they bothered writing down a definitive set of powers that only gave federal control to a few select areas, such as defense, coining money, regulation of interstate commerce, and some other stuff, and in those areas the feds would not be subject to the consent of the individual states. That is what a "strong" government refered to. Under the Confederation the national government was for the most part powerless to act absent consent from the states...

Quote:

The limitations on the power of the federal government imposed by the Bill of Rights have some basis in things governments sometimes do. I.e. the right to a speedy trial, or the right to reasonable bail. So, Meadmaker's point may be valid in that the seizure of guns by the British may be a primary influence on the writing of the 2nd amendment.

However, the 2nd amendment seems to be the only amendment where the authors seem to need to explain their reasons for including it. The other amendments just baldly state the restriction, "Congress shall make no law respecting the establishment of a religion....", etc. The restrictions do not have any explaination as to why they are necessary.

I agree with all of this.

Quote:

The 2nd amendment however provides the reason for it's inclusion, "A well-regulated militia being necessary for the security of a free State,...." This suggests to me that the authors of the Bill of Rights found it necessary to explain this amendment. Which does set it apart from the others.

Again, I agree that the "well regulated militia" should figure in to the interpretation of the clause.

Quote:

The militia being under the control of congress, and a general agreement that a standing army was a contributor to the European wars,

Don't get what you are saying here... either point... militias were state creatures, and the amendment itself looks toward "security of a free State" and what about "European wars?"

Quote:

suggests to me that the authors were being very specific in limiting the power of the states in regulating gun ownership. Which suggest to me that some state was attempting to regulate gun ownership.

Except that the bill of rights was not at the time of ratification meant to apply to the states, just the federal government. It took a civil war and a 14th amendment to get any of these rights to apply to the states.

[shanek]

Quote:

Originally posted by Flex
So, looking at the 2nd amendment to the Constitution of the United States in this light, what prompted the authors of the Bill of Rights to include it?

Breaking it down to its simplist components: Lots of big guys with guns tried to tell them what to do. They didn't like it; they believed in freedom. They fought off the big guys with guns. They did this because they themselves had guns. Therefore, people need to be armed to be able to stay free from big guys with guns.

Quote:

Most of the other amendments are about fairly general rights, which were discussed, in a general fashion for years. But the 2nd amendment is an exception. It is very specific. So what prompted the authors of the Bill of Rights to include it?

Because without it, how can you defend your other rights against the aforementioned big guys with guns? That includes government (both foreign and our own), criminal gangs, or even individual criminals.

Quote:

Just for the record, I do not think that the author’s of the Bill of Rights could foresee the current debates over the meaning of the 2nd amendment.

No, they very much did, and wrote about it as well. Madison wrote about it directly in Federalist #46. And most of the gun control advocates labor under the very misunderstanding of the Bill of Rights that Hamilton warned us about in Federalist #84: that people would consider the Bill of Rights to imply powers of government (in this case, the power to restrict the private ownership of firearms). It doesn't matter what they meant by "militia," "well-regulated," "arms," or "people." You can't use the language of the second amendment to figure out when government can restrict the private ownership of firearms. That power must come from elsewhere.

Essentially, the modern arguments for gun control are based on the same misconceptions that the founders warned us about.

Quote:

Is this a reasonable hypothesis? Is anyone aware of proposed Massachusetts’ bills from 1786 through 1791 which may have attempted to limit gun ownership?

I know of none at all. Most of what they were worried about was their experience under the rule of King George III. He used standing armies to try and subdue the colonists; they defeated those standing armies with privately-held arms. So they eschewed standing armies and saw the right to bear arms as a protection against that tyranny.

[toddjh]

Quote:

Originally posted by Flex
To suggest that the men writing the Bill of Rights deliberatly included a section promoting a violent means of defending the Bills they were drafting from the government seems a bit odd to me. I suspect that if you suggested this to them they would reply, "If you are attacking the government anyway, why do you think any government laws apply to you?"

...

This seems a rather fine distiction to draw. The authors of the Bill of Rights saying, in effect,"You have the option to revolt, but we don't ever expect you to use this option." I find it hard to believe that they were saying that.

There is precedent. New Hampshire's Constitution explicitly recognizes the right (and obligation) of the people to revolt against an unjust government:

Quote:

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

Edited to add: This clause, written in 1784, is the obvious inspiration for the Second Amendment. Note, for instance, the pioneering example of improper comma usage.

Jeremy

[Flex]

Quote:

Originally posted by toddjh
There is precedent. New Hampshire's Constitution explicitly recognizes the right (and obligation) of the people to revolt against an unjust government:

Edited to add: This clause, written in 1784, is the obvious inspiration for the Second Amendment. Note, for instance, the pioneering example of improper comma usage.

Jeremy

Thanks Jeremy, and everyone else for their comments.

I stand corrected.

Cheers,

-Flex

Edited to add: While I don't think that my hypothesis concerning Massachusetts law is disproved, at least one of the supporting premises has been reduced to the point where continuing to advocate a clear chain of events as I outlined above is now absurd. -F

[RandFan]

Flex,

Cool and classy. Great thread.

[shanek]

Quote:

Originally posted by toddjh
Edited to add: This clause, written in 1784, is the obvious inspiration for the Second Amendment. Note, for instance, the pioneering example of improper comma usage.

Actually, those extraneous commas in the Second Amendment were a transcription error that occured when the articles were copied onto parchment. They don't appear in the Congressional record and they're not officially part of the Bill of Rights as proposed and ratified. They only appear in copies that were based on the parchment, which, unfortunately, is most of them.

It actually reads: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." ("Well regulated" is officially not hyphenated, either.)

[Flex]

Isn't this how it's supposed to work?

I have a hypothesis/viewpoint which has a logical structure and clearly identifed assumptions.

I wish to test the hypothesis, so I present it.

When confirming data is not forthcoming, but sufficient indicators that my hypothesis is in error arise, I abandon my hypothesis.

The trouble I see on many of these threads is a confusion between opinions, facts, and assumptions. In many cases, if people would just agree on the definitions for the words they are using (and stop making fun of someone else's defintions), I suspect agreement would be closer than you think.

For example, in this thread I could have argued all day with LegalPenguin because he presented no factual evidence, just opinions.

ShaneK presented some evidence indicating that some of the issues I raised were being discussed at the time. I don't know if he would agree with my interpetation of the Federaist papers he cited, but I can't ignore the fact that those papers clearly indicate that the issues were being discussed during that time.

Jeremy put the nail in the coffin of my assumptions with the quote from the New Hampshire's Constitution.

I wasn't proved wrong by anyone challenging my main argument, but by removing one of the support assuptions for my argument, it collapsed.

If I can find another set of assuptions leading to the same conclusion, I may bring it up my conclusion again (and probably be shot down again) but it would be silly to continue to argue a conclusion when my supports are gone.

This thread was a serious thread, I have been considering this hypothesis for a couple of years. Now I know that my current chain of reasoning is faulty. I can either improve my chain of reasoning or discard the hypothesis. I can do neither rapidly (nor is there any need for me to revise rapidly).

Thanks for the kind words anyway.

Cheers,

-Flex

[Suddenly]

Quote:

Originally posted by Flex
Isn't this how it's supposed to work?

I have a hypothesis/viewpoint which has a logical structure and clearly identifed assumptions.

I wish to test the hypothesis, so I present it.

When confirming data is not forthcoming, but sufficient indicators that my hypothesis is in error arise, I abandon my hypothesis.

The trouble I see on many of these threads is a confusion between opinions, facts, and assumptions. In many cases, if people would just agree on the definitions for the words they are using (and stop making fun of someone else's defintions), I suspect agreement would be closer than you think.

For example, in this thread I could have argued all day with LegalPenguin because he presented no factual evidence, just opinions.

If we were going to be proper about it, your "hypothesis" would have been just rejected out of hand because you supplied zero data to support it.

No, it doesn't work that you just float some hypothesis based on nothing but your (mis)understanding of something and then expect others to do your work for you and to present data to disprove it. This is called shifting the burden. Calling it a "hypothesis" seems a bit charitable... in reality it seems to be a "wild speculation developed from a lack of data...."

Quote:

This thread was a serious thread, I have been considering this hypothesis for a couple of years. Now I know that my current chain of reasoning is faulty. I can either improve my chain of reasoning or discard the hypothesis. I can do neither rapidly (nor is there any need for me to revise rapidly).

Thanks for the kind words anyway.

Cheers,

-Flex

Here is an idea... next time you have a idea that you "consider" for a few years, try actually researching it and see if there is any basis whatsoever. If you have really been just sitting there staring out the window "considering" if Massechussets passed gun legislation that led to the second amendment... well, you may need a more practical method of research...

Having new ideas is easy... the hard part is wondering out into the cold hard world and showing that what is in your head corresponds with reality...

It isn't up to anyone else to disprove your ideas, rather up to you to prove them...

[Meadmaker]

Quote:

Originally posted by Flex
Hmm.

Your point is well taken. I know the Federalist Paper speak at length about the need to keep a militia ready. Not that I've seen any evidence that the British were attempting to enact gun control laws.

They weren't. On the other hand, they were specifically trying to disband the local militias. The Battle of Concord occurred because the British army seized the weapons which were held by the local branch of the militia. They then set fire to those weapons in the town square. A mile or so away, a group of members of said militia were standing on the other side of a bridge that arched a flood separating them from the British regulars. Seeing the smoke, one of them declared, "They are burning the town!" The locals opened fire, and the rest is history.

The second ammendment is about local militias, although the inclusion of the word "keep" in "to keep and bear arms" does suggest that private gun ownership is protected.



Again, invoking my original argument, a constitutional amendment trumps any laws a state makes. But if the states were not attempting to make a law, and all agreed with the necessity of keeping the local militia trained and ready, why would such a law be included in the Bill of Rights?

The states weren't attempting to quarter troops in private homes, either, but they included that provision as well. The Bill of Rights addressed a variety of things that they thought a tyrannical government might do, based on hypothetical musings, and examples of things that tyrannical governments had done in the past.



While the discussion of the phrase "to bear arms" is interesting, I do not see how it applies to this particular discussion. That falls into the catagory of interpetation, not creation. [/quote]

It is important because in order to understand the second ammendment, you have to understand that it protects the right to bear arms. To do that, you have to understand what it means to bear arms. It doesn't mean to own weapons. The people who wrote that ammendment were not trying to protect the right to own weapons, although they might have thought that was a necessary means to the end, which was protecting the right to bear arms.

The British, meanwhile, were trying to eliminate the right to bear arms, but they hadn't made any serious attempt to eliminate the right to own weapons. (I think they may have occaisionally confiscated private weapons, in which they might have been restricting the right to keep arms, but only in situations where they believed those arms might end up being borne at a later time.

Ironically, in America today, we do not have the right to bear arms, and the NRA isn't doing anything to change that. We have fairly strong rights to own weapons, but not to bear arms.

[Meadmaker]

Quote:

Originally posted by Flex

The 2nd amendment however provides the reason for it's inclusion, "A well-regulated militia being necessary for the security of a free State,...." This suggests to me that the authors of the Bill of Rights found it necessary to explain this amendment. Which does set it apart from the others.

The militia being under the control of congress, and a general agreement that a standing army was a contributor to the European wars, suggests to me that the authors were being very specific in limiting the power of the states in regulating gun ownership. Which suggest to me that some state was attempting to regulate gun ownership.

The miltia is very specifically not under the control of Congress. The standing army is under control of Congress. The militias are not. At some point, the President was given the power to nationalize the National Guard units, which are the successor to the militias, but that wasn't contemplated at the time the Constitution was written. I doubt that the framers would have liked the idea very much at all.

I have heard it said that the original language of the second ammendment, during the debate, was much more forceful and said that there should be no standing armies, just militias. I don't know if that is true, as it was just said by some guy talking on the radio. The story went that some people thought that a standing army might sometimes serve a purpose, and so it was compromised that there should be no prohibition against a standing army, but that a civilian, the President, should be its commander in chief. Meanwhile, the language of the second ammendment was changed to emphasize that a militia was necessary.

[CapelDodger]

Flex : It's refreshing to find someone trying to understand something in its historical context, rather than as fodder for sophistry in a modern debate. Kudos.

I think too much is being read here into local and contemporary events. The thinking behind the Constitution was argued out in the coffee-houses, printing-shops and bordellos of Europe (and New England) over several centuries. A common consensus was that a standing army is inevitably the tool of tyranny, something reflected in the body of the Constitution. The contentious issue is what replaces it - some defensive strategy being necessary - without itself becoming a tool of tyranny. From which argument, I think, derives the Second Amendment. If all (male) members of the community have a right to serve when a militia is mobilised, the militia cannot be monopolised by one interest against another. And the right to keep arms at home, rather than have them locked in a local arsenal available only to authority, means that mobilisation is meaningful.

from LegalPenguin:

Quote:

Jefferson's revolution every twenty years and all that...

Mao's "Permanent Revolution". The idea that the new society will be subverted, however carefully it's designed, and must be renewed. There is no perfect answer because some people are clever and. let's face it, not always well-meaning. And most people aren't clever at all and fall easily for demagoguery and flim-flam.

The Second Amendment, I think, is about giving people the practical ability to rebel. Only that ultimately holds leadership to account. It is not about people having a rack of guns at home because they have personal issues.

[shanek]

Quote:

Originally posted by Meadmaker
The miltia is very specifically not under the control of Congress.

Well, not exactly. Article I Section 8 Clause 15 allows them to call forth the militia, and Clause 16 allows them to "provide for organizing, arming, and disciplining, the Militia." Clause 16 goes on to say that they can only govern the part of the militia that is "employed in the Service of the United States."

So, they do have some power over the militia. Not much, but some.

Quote:

I have heard it said that the original language of the second ammendment, during the debate, was much more forceful and said that there should be no standing armies, just militias.

Here's the original language as it passed the Pennsylvania convention, the first convention on a Bill of Rights:

Quote:

That the people have a right to bear arms for the defence 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.

[Meadmaker]

Quote:

Originally posted by shanek
Well, not exactly. Article I Section 8 Clause 15 allows them to call forth the militia

I stand corrected.


It's interesting that they toned down the private gun ownership language so much. (The Guy On The Radio didn't mention that.)I wonder why they did that. As best I can tell, none of them seemed to want to control gun ownership, and some were quite vocal about the people's right to private ownership of firearms. It seems that there must have been a faction that wasn't quite so vocal about it, and the language must have been toned down to make sure that they got their support.

[shanek]

Quote:

Originally posted by Meadmaker
It's interesting that they toned down the private gun ownership language so much.

Ironically, they felt that, by making it simpler, they'd reduce the possibility of misinterpretation. They also felt that if they kept the same language as the Articles of Confederation there'd be less of a chance of misinterpretation as well.

[Flex]

Quote:

Originally posted by shanek
Here's the original language as it passed the Pennsylvania convention, the first convention on a Bill of Rights:

That the people have a right to bear arms for the defence 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.

Yet, I could see that this language could lead to just as many problems. The "real danger of public injury from individuals" section could be interepted several different ways.

I guess that's what makes life interesting.

-Flex

[shanek]

Quote:

Originally posted by Flex
Yet, I could see that this language could lead to just as many problems. The "real danger of public injury from individuals" section could be interepted several different ways.

I guess that's what makes life interesting.

Well, let's be fair to our founders: no matter how they worded it, it was going to be misused. It's not their fault for not writing it better; it's our fault for letting government take so many of our liberties away.

[merphie]

Quote:

Originally posted by Flex
My hypothesis is that the Massachusetts Legislature attempted to enact a piece of gun control legislation. I don’t find it in any of the passed bills during that period, but the mere fact that it would have been introduced would have been known. This would have encouraged the author’s of the Bill of Rights, who would have been concerned that without a standing army the militia needs to be ready to mobilize at any moment, to include the 2nd amendment in the Federal Constitution.

Is this a reasonable hypothesis? Is anyone aware of proposed Massachusetts’ bills from 1786 through 1791 which may have attempted to limit gun ownership? Does anyone want to do research on this issue? I have no evidence at all.

It's easy. Read some of the founding fathers writings. They make their intent clear. One thing they didn't want was a standing army. So it would be up to the citizens to protect the country if invaded.

[CapelDodger]

Quote:

Originally posted by merphie
It's easy. Read some of the founding fathers writings. They make their intent clear. One thing they didn't want was a standing army. So it would be up to the citizens to protect the country if invaded.

That was the view of many Revolutionaries, but it took more than them to get the Constitution through. In a perfect world there would be no need for standing armies, and no doubt the shining example of democracy that was the USA would in time lead the world to that happy state. (I hear it's getting closer every day.) In the meantime the real world did have standing armies, one of which was ill-disposed and one of which, having won the war for the Americans, might start making all sort of demands in return. And so standing armies "ought not" to be maintained because they were "dangerous" to liberty - not "Tools of Tyranny" as some extremists would have insisted. The stuff about "shall be kept under strict subordination ..." is just wish-listing, stating the problem and being agin it.

This clause in the Pennsylvania document is a diplomatic waffle designed simply to pass so that real life could carry on. Just like the Constitution, really. It defines those things that can be agreed and obfuscates those that can't.

[CapelDodger]

Quote:

Originally posted by shanek
Well, let's be fair to our founders: no matter how they worded it, it was going to be misused. It's not their fault for not writing it better; it's our fault for letting government take so many of our liberties away.

Not my fault. I was rooting for you guys. I blame the American electorate.

The writers of the Constitution were, of course, well aware that their Constitution would be misused if possible. They did their best to make it not possible. What they didn't allow for was universal suffrage. No rational enterprise can stand up to that. But give them their due, the country's never been taken over by a military dictatorship. They had that one covered, it seems.

[merphie]

Quote:

Originally posted by CapelDodger
That was the view of many Revolutionaries, but it took more than them to get the Constitution through. In a perfect world there would be no need for standing armies, and no doubt the shining example of democracy that was the USA would in time lead the world to that happy state. (I hear it's getting closer every day.) In the meantime the real world did have standing armies, one of which was ill-disposed and one of which, having won the war for the Americans, might start making all sort of demands in return. And so standing armies "ought not" to be maintained because they were "dangerous" to liberty - not "Tools of Tyranny" as some extremists would have insisted. The stuff about "shall be kept under strict subordination ..." is just wish-listing, stating the problem and being agin it.

This clause in the Pennsylvania document is a diplomatic waffle designed simply to pass so that real life could carry on. Just like the Constitution, really. It defines those things that can be agreed and obfuscates those that can't.

The idea that a standing army is dangerous is because it is dangerous to liberty. Therefore it becomes a tool of tyranny. I can't recall any dictator who stayed in power without the support of the military (or standing army).

The USA could turn ugly real quick if the US armed forces decided to back someone over the elected official. Which I believe would cause a civil war if that happened.

There is the saying that a man defending his home is worth 10 well trained soldiers. However, I believe a standing army is needed in these times. I don't think they should be used to police the world.

I don't believe anything in the constitution or much in the laws are just something done so life can go on. The constitution was heavily debated. (and still is) The bill of rights were added because some of the states refused to ratify the constitution without its existence. I don't think either are as trivial as you make them sound.

[CapelDodger]

Quote:

Originally posted by merphie
There is the saying that a man defending his home is worth 10 well trained soldiers.

There are sayings of all sorts. 10 well-trained soldiers are worth 100 drummed-up militia. At a conservative estimate. 100 soldiers and thousands of militia - the militia being in many places, the soldiers applied in one. Once you get into thousands of well-trained soldiers - which is generally the minimum order - civilians are pretty much buggered. How did the defenders of homes get on against the Huns? Not well, as I recall, and morale wasn't the deciding factor.

[CapelDodger]

Quote:

Originally posted by merphie
I don't believe anything in the constitution or much in the laws are just something done so life can go on. The constitution was heavily debated. (and still is)

Resolution 1441 was heavily debated, and was passed by obfuscation. A form of words was found that could be claimed as requiring a second resolution or as not. That's what diplomacy is about. Subsequent events will render many irreconcilables moot.

Quote:

The bill of rights were added because some of the states refused to ratify the constitution without its existence. I don't think either are as trivial as you make them sound.

A good example of diplomacy at work. The Constitution could only be passed without certain provisions on the understanding that said provisions would be inserted later. Diplomats have to sell that kind of deal, which puts them, to my mind, a cut above lawyers.

[merphie]

Quote:

Originally posted by CapelDodger
Resolution 1441 was heavily debated, and was passed by obfuscation. A form of words was found that could be claimed as requiring a second resolution or as not. That's what diplomacy is about. Subsequent events will render many irreconcilables moot. A good example of diplomacy at work. The Constitution could only be passed without certain provisions on the understanding that said provisions would be inserted later. Diplomats have to sell that kind of deal, which puts them, to my mind, a cut above lawyers. [/b]

Anything that is to last must be able to change. What do you mean "the constitution could only be passed without . . ."?

The bill of rights were added. So the constitution could only be passed with certain provisions.

[merphie]

Quote:

Originally posted by CapelDodger
There are sayings of all sorts. 10 well-trained soldiers are worth 100 drummed-up militia. At a conservative estimate. 100 soldiers and thousands of militia - the militia being in many places, the soldiers applied in one. Once you get into thousands of well-trained soldiers - which is generally the minimum order - civilians are pretty much buggered. How did the defenders of homes get on against the Huns? Not well, as I recall, and morale wasn't the deciding factor. [/b]

The American revolution was fought and won by militia.

I would also suggest Vietnam was fought with Militia. However I would not consider Vietnam a military win for the locals, but they did achieve their political goal.

I am not well versed on the Huns. What did the defenders have for weapons? Did they own any?

[clarsct]

Indeed, the people who fought the Huns had weapons. The Romans in particular. The Visigoths and the Ostrogoths were also well armed. They were just out-technologied. The recurve bow used by the Huns along with the advent of stirrups made a quick-striking calvary force the likes of which the Western world had never seen. When the Huns got off the plains, they started to stall. Their strategies didn't work as well. The question wasn't who was better disciplined or armed, it was the technology and tactics used. Similar to Poland and France in WWII. They were outmanuevered and used outdated technology against a superior German force. And lost just about as spectacularly.

In short, the argument has little merit in describing the benefits or pitfalls of a well-armed society. Arms weren't the issue. Brilliant strategy and a technological advantage were, as well as geography. Things just aren't a clear cut as we would like.

[CapelDodger]

Quote:

Originally posted by clarsct
In short, the argument has little merit in describing the benefits or pitfalls of a well-armed society. Arms weren't the issue. Brilliant strategy and a technological advantage were, as well as geography. Things just aren't a clear cut as we would like.

My point was about morale, not weapons. Put more bluntly, that "a man defending his home is worth 10 well trained soldiers" is pure sentimentality. Professional armies have driven people from the homelands they were defending throughout history, often with very inferior numbers.

[CapelDodger]

Quote:

Originally posted by merphie
Anything that is to last must be able to change. What do you mean "the constitution could only be passed without . . ."?

The Constitution as passed lacked the provisions that were included in the Bill of Rights. The Constitution included provisions for making amendments, and very sensibly too.

Quote:

The bill of rights were added. So the constitution could only be passed with certain provisions.

It was passed without them, but with the promise that they would be added. Doesn't that seem odd to you? If delegates were going to block the constitution unless they had that promise, why didn't they insist on them being included in the first place? Presumably because passage would then be blocked by oppponents of those provisions. So that problem was put off, agreement was reached on what could be agreed, the rest was obfuscated to await developments and life moved on.

[CapelDodger]

Quote:

Originally posted by merphie
The American revolution was fought and won by militia.

It was mostly fought by regular (albeit short-service) units in field armies, American and, of course, French. The militia role has been rather exaggerated and sentimentalised, as one would expect in a national foundation mythos.

Quote:

I would also suggest Vietnam was fought with Militia. However I would not consider Vietnam a military win for the locals, but they did achieve their political goal.

War is fought to achieve political ends, so of course they won. Get over it. The NVA had a lot to do with it, and the VC had a professional, well-trained core and operated under a unified command structure with the NVA. The American Rebellion was fought by much the same mix, except that the command structure was far from unified.

Quote:

I am not well versed on the Huns. What did the defenders have for weapons? Did they own any?

The Goths and other steppes people were very warlike, but they had no co-ordination between tribes and villages. The Huns could reduce each region in turn by concentrating while tribal militias/war-gangs waited their turn. Only a professional field army could bring the Huns to battle on any terms other than their own. In the end the Goths moved out ahead of the Huns, and into the Roman Empire seeking the protection of a regular army.

Funnily enough, once the Goths had lost their local ties with farm and village, they were able to form field armies and gave the Romans a pretty hard time.

In short, local militias can back-up and stiffen a standing professional army, but they're hard put to win a war on their own. They can drag it out, but not win. Cromwell et al realised that, and brought the Civil Wars to a close by forming a standing army. He then became a tyrant, which was no doubt one example that was used during the Constitutional debate on the matter.

[merphie]

Quote:

Originally posted by CapelDodger
The Constitution as passed lacked the provisions that were included in the Bill of Rights. The Constitution included provisions for making amendments, and very sensibly too. It was passed without them, but with the promise that they would be added. Doesn't that seem odd to you? If delegates were going to block the constitution unless they had that promise, why didn't they insist on them being included in the first place? Presumably because passage would then be blocked by oppponents of those provisions. So that problem was put off, agreement was reached on what could be agreed, the rest was obfuscated to await developments and life moved on. [/b]

My understanding was the bill of rights was added before the constitution was ratified.

The difference is the constitution says what the government can do and the bill of rights specifically says what the government can't do.

[merphie]

Quote:

Originally posted by CapelDodger
It was mostly fought by regular (albeit short-service) units in field armies, American and, of course, French. The militia role has been rather exaggerated and sentimentalised, as one would expect in a national foundation mythos.[/b]

The French had a minor part in the victory and only came to help at the end. The American army was not one of well trained soldiers and fought a guerilla war for the most part.

Sentimental? Ouch. You're just upset that England got served.

Quote:

War is fought to achieve political ends, so of course they won. Get over it. The NVA had a lot to do with it, and the VC had a professional, well-trained core and operated under a unified command structure with the NVA. The American Rebellion was fought by much the same mix, except that the command structure was far from unified.

Political yes. I have nothing to get over.

I don't think the VC was as unified as you might think. Obviously they did have some command and control, but a well regulated standing army would not be possible with the rate at which they brought new troups in.

Quote:

The Goths and other steppes people were very warlike, but they had no co-ordination between tribes and villages. The Huns could reduce each region in turn by concentrating while tribal militias/war-gangs waited their turn. Only a professional field army could bring the Huns to battle on any terms other than their own. In the end the Goths moved out ahead of the Huns, and into the Roman Empire seeking the protection of a regular army.

Funnily enough, once the Goths had lost their local ties with farm and village, they were able to form field armies and gave the Romans a pretty hard time.

In short, local militias can back-up and stiffen a standing professional army, but they're hard put to win a war on their own. They can drag it out, but not win. Cromwell et al realised that, and brought the Civil Wars to a close by forming a standing army. He then became a tyrant, which was no doubt one example that was used during the Constitutional debate on the matter.

Civil wars? The American Civil War? Both sides were fought largely by a standing army. There were few if any militia involved.

The Japenese defended each island during WW2 with a militia and army. I never said the cost wouldn't be high. Every man, woman, and child fought the invanders with anything they could find. In the end the Japense made the American cost so high that it was decided to drop the bomb on the mainland to end the war.

No doubt tryanny was a major concern in the debate. That is one reason they feared having a standing army. As I said, I don't know of any dictator who stayed in power without the support of the military.

[shanek]

Quote:

Originally posted by CapelDodger
The Constitution as passed lacked the provisions that were included in the Bill of Rights.

Technically, they aren't provisions. They're "declaratory and restrictive clauses." They don't give the government any kind of power; the intent was "to prevent misconstruction or abuse of [the Constitution's] powers." Hamilton in Federalist #84 warned of the dangers of having a Bill of Rights, because people would think they implied powers not explicitly granted. That's not the case.

So they aren't provisions; they don't provide for anything.

Quote:

It was passed without them, but with the promise that they would be added. Doesn't that seem odd to you? If delegates were going to block the constitution unless they had that promise, why didn't they insist on them being included in the first place?

Two states, North Carolina and Rhode Island, did just that.