The Intent of the Second Amendment

[Bradley in DC]

The Intent of the Second Amendment

Now that gun bans in Washington, D.C., are under Supreme Court review, the court must confront a crucial question: Is there an individual right to bear arms? Nearly no one argues that the Fourth Amendment right of “the people” to be free from unreasonable searches and seizures should not apply as an individual right. Yet where the same language appears in the Second Amendment, affirming the right of “the people” to keep and bear arms, many gun control advocates contend that there is no individual right at stake. Instead, they argue that the Second Amendment protects a collective right, one enjoyed by the respective states’ National Guard units.

According to a new op-ed by Independent Institute Senior Fellow and legal scholar Stephen P. Halbrook, however, “These attempts to deconstruct ignore that ‘the people’ means you and me, not the states, and that no ‘right’ exists to do anything in a military force—a militiaman does what is commanded.” Gun control proponents also neglect American history. After the American Revolutionary War, “Antifederalists protested that [the newly framed Constitution] included no declaration of rights and would allow deprivation of rights like free speech and keeping arms. James Madison responded in The Federalist that a declaration was unnecessary, in part because of ‘the advantage of being armed, which the Americans possess over the people of almost every other nation.”

A Bill of Rights was ratified to keep the new U.S. government limited and the American people free. Violations of the right to bear arms were a key grievance the colonists had against the British Crown. It is unimaginable that the Founders would have trusted government with control over individual weapons ownership. In the forthcoming Supreme Court deliberations, Halbrook hopes that “the Justices will be mindful of the Founders’ intent and will recognize that the Second Amendment is every bit a part of the Bill of Rights as is the First.”

“Our Second Amendment: The Founders’ Intent (http://independent.org/newsroom/article.asp?id=2084),” by Stephen P. Halbrook (12/06/07) Spanish Translation

That Every Man Be Armed: The Evolution of a Constitutional Righ (http://www.independent.org/store/book_detail.asp?bookID=23)t, by Stephen P. Halbrook

[noxagol]

The National Guard is hardly a militia anymore, if ever. The militia is only to be called up for service in times of rebellion, invasion, or insurrection. And during the war of 1812, the president at the time called up I think it was Conneticut and Massachuesetts militias to invade Canada and the states refused because militia's are meant to defend our country and not invade another country, especially ones named Iraq.

[Tugboat1988]

In forming 'intent' from agreements, and the Bill of Rights is part of an agreement between the States to form a new government under a new Constitution, the proper way to determin that intention is to follow the rules of contract law.

The agreement I mentioned is the Constitution and a promise that the first Congress would form a Bill of Rights that could be added to the Constitution. It was necessary that one be added because many did not want to ratify the Constitution without a Bill of Rights.

So, the rules of contracts cause you to view documents surrounding the issue that come from those who formed the document. You look for those documents to understand how the authors viewed the intent. In this case, the first document available is the "Resolution of the First Congress Submitting Twelve Amendments to the Constitution; March 4, 1789. Paragraph 1 offers the intent of the Articles presented to the States:

"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 ensure the beneficent ends of its institution:"

Well, the "intent" then, was to add declarations of restrictions on government power. Further, it "intended" to prevent misconstruction (expanding original intent to imply authority) witch leads to abuse of govenment powers. The authors "intended" that the Articles in the Bill of Rights were to be viewed as restrictive clauses that acted upon government in the form of denials.

You can view that Resolution at the following web:

www:yale.edu/lawweb/avalon/const/resolu02.htm

At this point a researcher should go to comments from the various founders, and historical background to show how they viewed it. Their views remain to this very day unless changed in ways specified in the Constitution itself. Interestingly enough, the founders believed a Bill of Rights was necessay to validate the Constitution, the Citizens of the States involved thought the Ten Articles were necessary to validate it, and the States Ratified those Ten as they understood them. But then, we know most of their comments, and they show an outcome of them being individual. That carries, under rules of agreements, today unless also altered by the process given in the Constitution. In other words, Congress, the Executive, or the Judicial can't change it without sending the entire to convention. But then, I'm a life member of GOA because I don't compromise either. :D

At this point, and I won't belabor the point further, a researcher or advocate should view the Second Amendment itself to find the degree or quality level of the restriction. The Second uses the words, "Shall not be infringed". :D

A quick view of Black's Law Dictionary includes these comment about the word "Shall" and by extention, the phrase "Shall not".

"As used in statutes, contracts, or the like, this word is generally imparative or manditory. It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning."

Well, 'public policy' in contracts and agreements are found in the details of the documents we have just thought about above.

A word of caution may be necessary at this point. Most thought expressed especially by those who like to limit individual liberty would argue that public policy is formed in the halls of Congress. Some of that is true, but not here. The Bill of Rights is findamental law, and how it boils out, says that Congress or any other government "Shall not" infringe upon the individual Right. If they do, and attempt to make restrictive law anyway, it's that an attempt to overthrough the Constitution they have sworn to uphold? Before you answer that one, recall if you will, the Second Amendment was one of the restrictions necessary to make the Constitution acceptable.

Well, that's enough. I do hope I haven't bored anyone.

Tugboat

[Bradley in DC]

Well, that's enough. I do hope I haven't bored anyone.

Tugboat

Heck of a first post. Was that all bottled up? :D

Welcome, Tugboat!

[1913_to_2008]

Don't forget, we don't have the right to own ammunition. Just the right to bear arms. Think about it.

this is what they just pulled in Switzerland. They took away the right to store or own ammunition!

[Tugboat1988]

Thanks Bradley.
I just sit down and write what's on my mind, then do a quick scan to see if I can spot some key stroke errors to edit. Actually, I thought your first post in this thread was outstanding. While I'm at it I want to comment on a part of it.

You wrote:"Antifederalists protested that [the newly framed Constitution] included no declaration of rights and would allow deprivation of rights like free speech and keeping arms. James Madison responded in The Federalist that a declaration was unnecessary, in part because of ‘the advantage of being armed, which the Americans possess over the people of almost every other nation.”

I stand in awe at some of the people that formed this Union, and Madison is one of them. But many people don't quite get what Madison saw in the objection and the impact of his words. Here's how it boils out, for those who have never stopped long enough to get it. I'm sure you do get it though Bradley and I'm both impressed and pleased.

The objectors first though it might be proper to include, as it were, a listing of Rights they thought were important. They probably wanted the document to include all the Rights mentioned in the Bill of Rights and many more. So they were among the objectors.

But Madison knew better than to form a document that showed individual Rights being derived from the Constitution. He knew that in doing so, it would emply that Congress, or the other two branches would have plausable claim on jurisdition and management of the Rights noted, and anything else not included. That would mean Congress would at least have implied powers to alter or deny any individual Right it could get a majority in that body to vote for. If some Congresman hate Christianity, he could potentially get the votes to declare Christianity not a religion but a terror organization and ban it. Well, that's just a thought of the potential.

But Madison know the Constitution was about defining government, not about regulating the Citizens of America. That's why the Bill of Rights reads a list of things that Congress SHALL NOT DO. And, his suggested approach does exactly that; regulates government with certain, declared bans upon its power.

BTW, the agreements entered into by the States when they became members of the Union binds it as fundamental, to the intent of the Bill of Rights as well.

If it weren't for founders like Madison and Jefferson, we could have had a despotic empire before this country got fifty years down the road.

Even so, it seems the folks who subscribe to the Hamilton/Adams idea of centralized power are in a majority today. That's one of the real problems a Ron Paul executive, (and perhaps a Andrew Napolitano VP) can be a real positive correction in the distructive directions this country is now experiencing.

Tugboat

[Bradley in DC]

Thanks Bradley.
I just sit down and write what's on my mind, then do a quick scan to see if I can spot some key stroke errors to edit. Actually, I thought your first post in this thread was outstanding.

Thanks, but I didn't write any of it--its from The Lighthouse of The Independent Institute.