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Sat Jan 12, 2013, 06:40 PM

So you think you WHY the Second Amendment was added to the Constitution?

So did I, thanks to Thom Hartmann, on his show Friday, I am not nearly so certain now. According to Professor Carl T. Bogus, Roger Williams University School of Law, the reality isn't what either side of the current debate would have you believe.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1465114

Be advised that this dissertation is over a hundred pages, and written as a scholarly paper, but should one want to cut through the BS and see what really went on, instead of being being spoon-fed biased myths, it's well worth the time to read. I'll guarantee you will learn things "they" prefer you didn't.

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Reply So you think you WHY the Second Amendment was added to the Constitution? (Original post)
99Forever Jan 2013 OP
CJCRANE Jan 2013 #1
TheKentuckian Jan 2013 #2
CJCRANE Jan 2013 #3
pipoman Jan 2013 #9
CJCRANE Jan 2013 #13
pipoman Jan 2013 #15
ThomThom Jan 2013 #18
pipoman Jan 2013 #19
freshwest Jan 2013 #5
jeff47 Jan 2013 #14
CJCRANE Jan 2013 #16
Spider Jerusalem Jan 2013 #4
99Forever Jan 2013 #6
Spider Jerusalem Jan 2013 #10
99Forever Jan 2013 #20
Spider Jerusalem Jan 2013 #31
X_Digger Jan 2013 #33
Recursion Jan 2013 #7
Warpy Jan 2013 #8
bananas Jan 2013 #11
Turborama Jan 2013 #17
99Forever Jan 2013 #21
jmg257 Jan 2013 #12
99Forever Jan 2013 #22
jmg257 Jan 2013 #24
jmg257 Jan 2013 #26
H2O Man Jan 2013 #23
X_Digger Jan 2013 #25
jmg257 Jan 2013 #29
Still Sensible Jan 2013 #27
JanT Jan 2013 #28
FarCenter Jan 2013 #30
Spider Jerusalem Jan 2013 #32
FarCenter Jan 2013 #34

Response to 99Forever (Original post)

Sat Jan 12, 2013, 06:45 PM

1. I disagree with the idea that the 2A is to protect you against the government.

Why would a newly-formed government allow its citizens weapons to fight against itself. The weapons are for the "security" of the "state". That is the militias are supposed to work on behalf of the government, not against it.

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.

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Response to CJCRANE (Reply #1)

Sat Jan 12, 2013, 07:05 PM

2. Not specifically, rather a deterrence against tyranny of all sorts.

For the security of the state for sure but also to keep the state free. The free is there as much as the state is, they are rhetorically tied. Just because the state is secure does not make it free.

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Response to TheKentuckian (Reply #2)

Sat Jan 12, 2013, 07:07 PM

3. Free from what? Free from foreign invaders.

No government supports sedition against itself in word or action.

ETA: in any society where voting still takes place and there is freedom of speech, there is no need for violent action.

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Response to CJCRANE (Reply #3)

Sat Jan 12, 2013, 07:58 PM

9. The Founders

had just finished a winning revolution against what had become a tyrannical government. They absolutely understood the need for the people to have the means to fight off tyranny. They also gave government extended power during times of insurrection. The ability to suspend portions of the Constitution under extreme circumstances. They were aware of the history of the world and knew tyranny has historically been a destroyer of civilizations. They didn't rule out the possibility that their creation would become tyrannical. They had to make insurrection difficult but not impossible.

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Response to pipoman (Reply #9)

Sat Jan 12, 2013, 08:41 PM

13. It's a tricky one though...

Take this Yeager guy for instance...

Who exactly is he fighting for? Is he part of a militia fighting on behalf of the State of Tennessee against the Federal Government?

Is he fighting against his own state?

Asserting your right to rise up against the government is a tricky one to prove, without that government being at least slightly miffed about it (not to mention there are various laws against treason, sedition, terrorism, conspiracy, incitement etc).

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Response to CJCRANE (Reply #13)

Sat Jan 12, 2013, 08:50 PM

15. The hard part of any good insurection

is garnering enough support to move from the nutcase fringe to a mainstream movement. Nutcase fringe attempts at insurrection won't end well for them. I don't believe it is a right to rise up in arms at all, nor do I believe the founders did either..they were all criminals essentially until they won. They knew people trying armed rebellion against the state, at that time, would be put to death forthwith.

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Response to pipoman (Reply #9)

Sat Jan 12, 2013, 09:49 PM

18. the means to fight off tyranny

is free and fair elections held every two years not armed revolt

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Response to ThomThom (Reply #18)

Sat Jan 12, 2013, 09:56 PM

19. We agree..

historically tyrannical governments have evolved..the founders had no intention to make revolution easy or common, only possible under dire conditions..

further a tyrannical government could take those options away..

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Response to CJCRANE (Reply #1)

Sat Jan 12, 2013, 07:10 PM

5. You make sense there, your logic wins.

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Response to CJCRANE (Reply #1)

Sat Jan 12, 2013, 08:46 PM

14. It does, but not in the way the NRA-lovers think

It's not for the citizenry to resist the government with force.

It was designed for the Federal government to not have a standing army - instead they would use the state militias when needed. With no Federal army, they wouldn't be able to be all tyrannical because they would not have guns to back up their tyranny.

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Response to jeff47 (Reply #14)

Sat Jan 12, 2013, 08:57 PM

16. Ah, I see. That makes sense.

It's a pity it didn't work out that way, i.e. no standing army, but I'm not sure how practical that would be in the modern world.

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Response to 99Forever (Original post)

Sat Jan 12, 2013, 07:09 PM

4. The answer to that is:

"to ensure the several States that their sovereignty would not be challenged by an overly powerful Federal government with a standing army". See also the experience of Scotland which was disarmed after assorted Jacobite risings; the Scottish Militia Bill of 1708 was the last to receive the royal veto. The disarmament of Scotland (and the significance of the experience re a central government disarming the people of a constituent part of a state) would have been quite relevant to the authors of the Second Amendment, and to the states who were wary of centralised power.

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Response to Spider Jerusalem (Reply #4)

Sat Jan 12, 2013, 07:47 PM

6. Have you read the disertation I linked to?

It offers a somewhat different perspective than what you are quoting, along with the backing to support it, not just one selected offering to support one biased POV.

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Response to 99Forever (Reply #6)

Sat Jan 12, 2013, 08:00 PM

10. I've read extensively on colonial and early US history and also English and British history.

I think that any understanding of the Second Amendment that doesn't take the British context and history of the militia and the right and obligation to bear arms is inherently flawed. And I think that any examination of the Jeffersonian states-rights tendency that doesn't take into account the British experience of Scottish disarmament and how that relates to colonial attitudes toward centralised governmental power in the hands of a standing army is also inherently flawed. I generally find that any analysis of the US Constitution and political environment of the late 18th century that totally ignores the historical context of where the "founding fathers" were coming from is useless. The Constitution and Bill of Rights were significantly influenced by British history, by the Magna Carta and English Bill of Rights and Petition of Right and Habeas Corpus Act and the common law. These ideas didn't just spring fully-formed from the heads of Madison and Jefferson and Franklin like Athena from the brow of Zeus. Did Southerners perhaps fear slave revolt? Conceivably, but to argue that that's the only or the real reason for the Second Amendment ignores a lot of history and context.

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Response to Spider Jerusalem (Reply #10)

Sat Jan 12, 2013, 09:58 PM

20. I'm sorry...

.. that isn't what I asked you. I asked you a simple, straight forward question:

Did you or did you not read the entire dissertation and it's references? It's not a trick question nor meant as snark. I'm not qualified to argue this gentleman's take on it, if you want to do that. I suggest you contact him.

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Response to 99Forever (Reply #20)

Sat Jan 12, 2013, 11:16 PM

31. Enough to tell that he ignores or isn't aware of a substantial amount of the historical context

he's right that the Second Amendment in intent is a collective and not an indivdual right, but the issue of whether it's solely to placate slave states is questionable considering that Pennsylvania and New Jersey had similar provisions in place as early as 1776. (and while slavery existed in both there were far fewer slaves and far less threat of any successsful slave revolt).

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Response to Spider Jerusalem (Reply #31)

Sat Jan 12, 2013, 11:57 PM

33. Not to mention VT's constitution (which predates our own) 1777

"That the people have a right to bear arms for the defence of themselves and the State.."

Or PA's in 1790, before the bill of rights- "The right of the citizens to bear arms in defence of themselves and the State shall not be questioned."

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Response to 99Forever (Original post)

Sat Jan 12, 2013, 07:49 PM

7. The Senate, too

A lot of our Constitution is designed to perpetuate slavery.

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Response to 99Forever (Original post)

Sat Jan 12, 2013, 07:57 PM

8. If I had a name like that, I'd change it. Fast.

However, his premise that it was added to mollify the south has always made a great deal of sense to me.

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Response to 99Forever (Original post)

Sat Jan 12, 2013, 08:01 PM

11. "Professor Bogus"? Is that his real name? nt

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Response to bananas (Reply #11)

Sat Jan 12, 2013, 08:58 PM

17. LOL! That's what I was thinking, too.

His name made me wonder whether this was a prank post. Still not sure.

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Response to bananas (Reply #11)

Sat Jan 12, 2013, 10:05 PM

21. Yes, that...

... apparently is his "real name." When you finish guffawing and scratching your ass, read his peer reviewed, U.C. Davis Law Review published dissertation and get back to me with your brilliant analysis.

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Response to 99Forever (Original post)

Sat Jan 12, 2013, 08:04 PM

12. Yep - and it isn't all that tough. In 1 page or less...

Last edited Sat Jan 12, 2013, 11:11 PM - Edit history (1)

The purpose of the 2nd amendment is to secure the Militias.

Why? Our freedoms depend on it; the freedom of the States, and the existence of the Union depend on it.

US Constitution, Article 1 Section 8; The VERY VITAL Role of the Militias in securing our liberties:
"To provide for calling forth the Militia {of the several States} to execute the Laws of the Union, suppress Insurrections and repel Invasions"

Article 4 Section 4
"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence".

Preamble:
in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty


The newly assigned powers of Congress, over the existing Miltiias of the Several States:
Article 1 Section 8
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Powers taken fron the States, that if usurped, or ignored, could be exploited by tyrants.

In Congress 1789...
Mr Gerry: Now, I am apprehensive, sir, that this {religious exemtion} clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms.
What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty
. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins."


Mr. Scott: objected to the clause in the sixth amendment, "No person religiously scrupulous shall be compelled to bear arms." He observed that if this becomes part of the constitution, such persons can neither be called upon for their services, nor can an equivalent be demanded; it is also attended with still further difficulties, for a militia can never be depended upon. This would lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, and in this case recourse must be had to a standing army.

The 2nd secured the Militias, it prevents them from being "destroyed".
1) it declares the Militias ARE NECESSARY.
2) it declares they must be well-regulated - well armed and well trained.
3) it prevents the governments from disarming them
It keeps the Congress from ignoring, or disarming or otherwise leaving the Militias ineffective.

Mr. Gerry: objected to the first part of the clause, on account of the uncertainty with which it is expressed. A well regulated militia being the best security of a free State, admitted an idea that a standing army was a secondary one. It ought to read, "a well regulated militia, trained to arms;" in which case it would become the duty of the Government to provide this security, and furnish a greater certainty of its being done.


The 2nd does not secure the right to bear arms so the people can stage a revolt, or fight against a usurper, or even provide for their own defense (though that is a 'bonus'). It secures their right and duty to serve in an efficient Militia, as the best way to avoid that bane of liberty - a large standing army. THAT is the security against tyranny the 2nd offers.


On EDIT: Glanced at link...aahhh - slave control - makes sense as to the importance of the insurrection purpose, along with surpressing white insurrections like the recent Shay's Rebellion...BUT you can NOT ignore the expanded and extremely vital role the Militias were to fill in the new Republic, already articulated in the Constitution. The Militias weren't some new entity suddenly put in place just to guard against slave uprisings and so deserving of some extra attention. They existed, and had for decades, were increased in importance under the Articles, and they were needed to specifically secure all our freedoms.

Anyway - have to check it out!

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Response to jmg257 (Reply #12)

Sat Jan 12, 2013, 10:07 PM

22. "Glanced at link.."

Nuf said.

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Response to 99Forever (Reply #22)

Sat Jan 12, 2013, 10:24 PM

24. I noted that..reading it now and so far agrees wonderfully..

Other then his downplay of the fear of standing armies and some misplaced & selective emphasis, its right on the money with regards to securing the Militias.

Up to section J.

Very revealing that he states:
Madison's version does not grant a right, but is a limit on govt, (no shit)
And of course, that the 2nd
was to ensure congress could not use the power to provide for arming the militias, to disarm them.
And that the power of providing for arming is concurrent, (so the States cant disarm the people either).


Edit ipad suk fortyping.

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Response to 99Forever (Reply #22)

Sat Jan 12, 2013, 10:29 PM

26. BTW..interesting paper..thanks for posting it! nt

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Response to 99Forever (Original post)

Sat Jan 12, 2013, 10:23 PM

23. yep

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Response to 99Forever (Original post)

Sat Jan 12, 2013, 10:28 PM

25. Bogus's theories have been soundly debunked- by liberal scholars like Laurence Tribe..

Alan Dershowitz, and Sanford Levinson.

See Levinson's, The Embarrassing Second Amendment, Yale Law Journal, Volume 99, pp. 637-659 specifically.

Or Tribe's Constitutional Law textbook on the subject. Here's an article that came up in a cursory search, rather than just pointing you to amazon.com:

http://www.tysknews.com/Depts/2nd_Amend/scholar_angers_liberals.htm

And yes, I read Bogus's paper some time back. He does what he accuses others of doing- selectively quoting one debate or statement from one 'founding father' that was in a separate context, and applying it as though it were the prevalent thought, about a general concept, while ignoring a more general statement from the same 'founding father' that is more applicable.

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Response to X_Digger (Reply #25)

Sat Jan 12, 2013, 11:04 PM

29. He definitely blows it on the whole 'definition of the Militia' stuff

At the end. Places way too much emphasis on Congress providing for organizing, arming and disciplining as their ability to define the State Militias. In the debates over the Militia Acts, members of Congress that were also at the Constitutional Convention stated they were 'to provide guidelines only'.

Of course. The State Militias already existed. It was not for Congress to create or create them. They continued 'the norm'...conscription and self-armed as the best security for the Militias.

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Response to 99Forever (Original post)

Sat Jan 12, 2013, 10:39 PM

27. The professor makes a pretty good case

that perhaps the most significant reason for the second amendment--and the somewhat curious use of the "militia" language--was the Virginia (and other Southern delegations) desire to protect their institution of slavery.

As the unfortunately named Bogus documents, the militias in that time in the South were essentially the slavery enforcement mechanism. While ratification was being debated, the anti-federalists were most afraid that the more anti-slavery northern states would abolish it... because it was both economically and culturally very important to them.

A good read.

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Response to 99Forever (Original post)

Sat Jan 12, 2013, 11:03 PM

28. i listened to Thom Hartmann

on Friday and it was intriguing information. thank you for posting the Prof. Bogus paper. i am going to read it. Funny - when i was in high school i hated history. Now that i am, ahem, a little older, i find it fascinating. Thom's analogy seemed plausible given the history of the south and the importance of slavery at the time. it does seem to me that making sure the slaves could not take part in a major uprising, would be paramount to the safety of the plantation owners and their families. Hence a "well regulated militia". i love listening to Thom and do so whenever i get the chance.

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Response to 99Forever (Original post)

Sat Jan 12, 2013, 11:10 PM

30. Interesting argument, but it ignores the Indian Wars that were going in 1780s and '90s

The Northwest Indian War was part of a long frontier struggle in the Ohio Country, which included the French and Indian War (17541763), Pontiac's Rebellion (17631764), Lord Dunmore's War (1774) and the American Revolutionary War (17751783). Many Indian communities perceived the wars as a kind of endemic warfare with European and American settlers that spanned several generations. For example, historian Francis Jennings suggested that the Northwest Indian War was, for the Lenape people, the end of a "Forty Years' War" that began soon after the Braddock Expedition in 1755. For some American Indians, the conflict resumed a generation later with Tecumseh's War (1811) and the War of 1812 (hence their term Sixty Years' War). Conflict with the US continued to the 1830s era of Indian removals from east of the Mississippi.


http://en.wikipedia.org/wiki/Northwest_Indian_War

Militias, sometimes legally organized and sometimes not, sometimes under Army command and sometimes not, were playing a large role in the effort to drive the Indians out of the Ohio river valley and eventually west of the Mississippi.

They even played a role as late as the Sioux Uprising in Minnesota in 1862, when most Army units had been called away for the Civil War. Some were organized by the settlers themselves without any government approval to meet the crisis.

PS -- Professor Bogus makes that argument that the English right to bear arms was weak and is an inadequate precedent for the Second Ammendment. He does not address the former rights asserted by Scots, Scots-Irish, and Irish. Large numbers of "British" colonials were of these non-English ethnic groups who were exported to the American colonies from English prisons or who had fled English opression. The "Englishness" of the colonials is overstated, since many of the folks in these groups were considered English if they had been in England before being exported.

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Response to FarCenter (Reply #30)

Sat Jan 12, 2013, 11:33 PM

32. His argument about the weakness of the English right to arms is flawed.

English Bill of Rights, 1689. "That the subjects which are Protestants may have arms for their defence, suitable to their conditions and allowed by law."

In practice the right to arms was restricted to members of certain social classes, this is what "suitable to their conditions" meant...only gentlemen could wear swords, for instance, and ownership of firearms was generally restricted to yeoman farmers and up...freeholders, small landowners, in other words; a tenant farmer with a gun was presumed to be a poacher. But at the time of the Revolution a far higher percentage of the population of the colonies than of Britain were small landowners and farmers who would in Britain have had the right to arms (and been subject to militia service), and the authors of the Constitution would all have been members of the gentry class, had they been in Britain. So asserting the "weakness" of the English right to arms in an American context is...questionable.

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Response to Spider Jerusalem (Reply #32)

Sun Jan 13, 2013, 12:01 AM

34. Earlier there was a requirement to bear arms, depending on one's social station.

The Assize of Arms of 1252 provided that small landholders should be armed and trained with a bow, and those of more wealth (wealthy yeomen) would be required to possess and be trained with sword, dagger and longbow (the war bow). That Assize referred to a class of Forty shilling freeholders, who became identified with 'yeomanry', and states "Those with land worth annual 40s-100s will be armed/trained with bow and arrow, sword, buckler and dagger". This status of landowner corresponds to the Knight's Yeoman in Chaucer's Canterbury Tales (Yeoman's Portrait in the General Prologue to the Canterbury Tales).


http://en.wikipedia.org/wiki/Yeoman

Feudalism was based on obtaining a right to use land in return for an obligation to respond to a call to arms suitably equipped and trained depending upon one's rank.

PS -- one of Europe's critical advantages was the ability to undertake organized violence with scale and expertise.

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