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Response to DetlefK (Original post)

Sun Mar 18, 2012, 11:46 AM

4. Well, since you're foreign, let me help..

"well regulated" at the time, and in this context meant 'well functioning'-

http://armsandthelaw.com/archives/WellRegulatedinold%20literature.pdf

[div class='excerpt']In Item 1, Anne Newport Royall commented in 1822 that Huntsville, Alabama was becoming quite civilized and prosperous, with a “fine fire engine” and a “well regulated company”. I suppose one could make the case that the firefighters were especially subject to rules and laws, but the passage is more coherent if read, “They have a very fine fire engine, and a properly operating company.”

William Thackary’s 1848 novel (item 4) uses the term “well-regulated person”. The story is that of Major Dobbin, who had been remiss in visiting his family. Thackary’s comment is to the effect that any well-regulated person would blame the major for this. Clearly, in this context, well-regulated has nothing to do with government rules and laws. It can only be interpreted as “properly operating” or “ideal state”.

In 1861, author George Curtis (item 5), has one of his characters, apparently a moneyhungry person, praising his son for being sensible, and carefully considering money in making his marriage plans. He states that “every well-regulated person considers the matter from a pecuniary point of view.” Again, this cannot logically be interpreted as a person especially subject to government control. It can only be read as “properly operating”.

Edmund Yates certainly has to be accepted as an articulate and educated writer, quite capable of properly expressing his meaning. In 1884 (item 6), he references a person who was apparently not “strictly well-regulated”. The context makes any reading other that “properly operating” or “in his ideal state” impossible.


Secondly, let's look at the preamble to the Bill of Rights-

[div class='excerpt']The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.

The Bill of Rights was intended as a 'the government shall not' document- "to prevent misconstruction or abuse of its powers"- not a 'the people can' document. Rights aren't limited by the bill of rights; rather the scope of protections of certain rights are set. If the Bill of Rights were a listing of all a person's rights, there would be no need for the ninth and tenth amendments ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." and "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." respectively.)

And finally, let's look at the second amendment itself-

[div class='excerpt']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.

Who does the right belong to? The militia? No, the people. See US v. Verdugo-Urquirdez for the salient definition of 'the people'.

Grammatically this can be broken down into two clauses- a prefatory clause and an operative clause. Similar wording can be found in other writing of the time, though it's fallen out of favor these days. For comparison, see Rhode Island's constitution, Article I, Section 20- "The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject..". That construction- '{reason}, {statement}' exists today, but we usually swap the clauses- "I'm going to the supermarket, I'm completely out of soda." or we add in a 'because' or 'since'- "Since I'm completely out of soda, I'm going to the supermarket." or "I'm going to the supermarket because I'm completely out of soda."

I know that complex English is lost in today's twitter-ful and facebook-y terseness, but it really does pay to read older documents when you want to analyze what a sentence from that era actually means.

So with the point from the first section, the second section in mind, and rearranging the clauses per the third would yield a modern restatement of the second amendment as-

"Because a well functioning militia is necessary to state security, the government shall not interfere with the right of the people to be armed."

or

"The government shall not interfere with the right of the people to be armed because a well functioning militia is necessary to state security."

Nothing in either of those statements says that arms are only for militia service, rather the ability to raise an effective militia is why protecting the right to be armed is protected. Since we know from the preamble (and the 9th/10th amendment) that the bill of rights is not exhaustive, we have to look outside the bill of rights itself to see if the founding fathers expected this right to extend beyond militia service.

State analogues of the second amendment that were adopted in the same timeframe give a clue-

http://www.davekopel.com/2A/LawRev/WhatStateConstitutionsTeach.htm (sections rearranged by me)

[div class='excerpt']The present-day Pennsylvania Constitution, using language adopted in 1790, declares: "The right of the citizens to bear arms in defence of themselves and the State shall not be questioned."

Vermont: Adopted in 1777, the Vermont Constitution closely tracks the Pennsylvania Constitution. It states "That the people have a right to bear arms for the defence of themselves and the State.."

Kentucky: The 1792 Kentucky constitution was nearly contemporaneous with the Second Amendment, which was ratified in 1791. Kentucky declared: "That the right of the citizens to bear arms in defence of themselves and the State, shall not be questioned."

Delaware: "A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use."

Alabama: The Alabama Constitution, adopted in 1819, guarantees "that every citizen has a right to bear arms in defense of himself and the state"

Arizona and Washington: These states were among the last to be admitted to the Union.* Their right to arms language is identical: "The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men."

Illinois: "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed."** (footnotes removed)

So from analagous documents created by many of the same founding fathers or their peers, the individual right unconnected to militia service is fairly well laid out.

* Admittedly, not analogous in time to the others, but still demonstrates the point.
** same

You should read other cases such as US v Cruikshank ("This right is not a right granted by the Constitution . . . neither is it in any manner dependent upon that instrument for its existence." or Presser v Illinois ("the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, as so to deprive the United States of their rightful resource for maintaining the public security and disable the people from performing their duty to the general government."

Both the Heller and McDonald decision shed more light on the subject.

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DetlefK Mar 2012 OP
daleanime Mar 2012 #1
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gejohnston Mar 2012 #6
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