The Second Amendment: Intent

[Bootstrap]

Please keep conversations focused on:
The perceived intent of those who passed the Bill of Rights

I think this is a good summary: https://constitutioncenter.org/interact ... interps/99

Very few people talked about the Second Amendment or asked the questions we now ask until fairly recently because these were not the questions in the minds of the Founders. We read our own issues back into their time.

The Founders didn't think the United States should have a standing army. Instead, there should be state militias that would be ready to respond in case of an emergency. An army should be raised only when needed to fight a foreign enemy, then disbanded. So the right of individual states to have militias, unimpeded by the Federal government, was the main issue. And of course, state and local governments were not bound by the Second Amendment at all, it applied only to the Federal government.

That's the context for the Second Amendment. In this context:

This massive shift of power from the states to the federal government generated one of the chief objections to the proposed Constitution. Anti-Federalists argued that the proposed Constitution would take from the states their principal means of defense against federal usurpation. The Federalists responded that fears of federal oppression were overblown, in part because the American people were armed and would be almost impossible to subdue through military force.

Implicit in the debate between Federalists and Anti-Federalists were two shared assumptions. First, that the proposed new Constitution gave the federal government almost total legal authority over the army and militia. Second, that the federal government should not have any authority at all to disarm the citizenry. They disagreed only about whether an armed populace could adequately deter federal oppression.

The Second Amendment conceded nothing to the Anti-Federalists’ desire to sharply curtail the military power of the federal government, which would have required substantial changes in the original Constitution. Yet the Amendment was easily accepted because of widespread agreement that the federal government should not have the power to infringe the right of the people to keep and bear arms, any more than it should have the power to abridge the freedom of speech or prohibit the free exercise of religion.

[Robert]

And of course, state and local governments were not bound by the Second Amendment at all, it applied only to the Federal government.

I disagree with this. All states were/are bound by the constitution and the amendments to it.

I agreed with about everything else in your post.

[Bootstrap]

And of course, state and local governments were not bound by the Second Amendment at all, it applied only to the Federal government.

I disagree with this. All states were/are bound by the constitution and the amendments to it.

I don't think that was true until after the Civil War and the 13th and 14th Amendments. Google incorporation bill of rights to read about this.

I think the following is accurate:

Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state, governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank (1876) still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

[Falco Underhill]

Federalist no 29 explicitly mentions "invasion" and "insurrection" as reasons for instituting a militia. But it discusses how they would also be effective against a standing army of the federal government if it should become dangerous to the citizens as well:

If circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist. [Federalist 29]

The citizens "stand ready to defend their own rights and those of their fellow citizens" against a federal army. I believe all "their own rights" with respect to owning weapons - mentioned in my previous post - were implied here. Those men I quoted were better situated to understand the "original intent" than we are. That is why the U.S. Supreme Court also relies on history and tradition to discern original intent.

Also, in Federalist no. 46, James Madison addresses the same problem.

It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. [Federalist 46]

Clearly, state militias were intended to be a check on any federal army as well.

[Bootstrap]

Federalist no 29 explicitly mentions "invasion" and "insurrection" as reasons for instituting a militia.

You can read the whole thing here, and it spells out the role of States, who organize these militias. They are not private militias or mobs.

This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "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.''

There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS?

These militias were clearly under the authority of the individual States.

So today, when we clearly have a standing federal army, I'm not sure how the Second Amendment applies.

[Bootstrap]

Also, in Federalist no. 46, James Madison addresses the same problem.

It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. [Federalist 46]

Clearly, state militias were intended to be a check on any federal army as well.

Indeed. Here is the complete text:

https://avalon.law.yale.edu/18th_century/fed46.asp

But after the Civil War, the United States decided that individual States could not declare war on the United States, that the Bill of Rights applied to all States. And over time, the loyalty of most citizens is to the country as a whole, we have a standing army, and state militias do not form the core of the United States military.

[Falco Underhill]

Federalist no 29 explicitly mentions "invasion" and "insurrection" as reasons for instituting a militia.

You can read the whole thing here, and it spells out the role of States, who organize these militias. They are not private militias or mobs.

This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "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.''

There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS?

These militias were clearly under the authority of the individual States.

So today, when we clearly have a standing federal army, I'm not sure how the Second Amendment applies.

Neither am I, but it does.

[Falco Underhill]

But after the Civil War, the United States decided that individual States could not declare war on the United States, that the Bill of Rights applied to all States.

That may be, I'm not sure. (Case citation?)

However, the point i was addressing is that the 2nd Amendment was never just about a "collective" right to bear arms, as some argue. It included "individual" rights to bear arms as well as a collective right to resist usurpation.

And over time, the loyalty of most citizens is to the country as a whole, we have a standing army, and state militias do not form the core of the United States military.

Loyalty to the country as a whole, maybe, but loyalty to the federal government? I think most people still (rightly) eye it with suspicion even if they also appreciate some things about it.

[temporal1]

Falco:
Loyalty to the country as a whole, maybe, but loyalty to the federal government?
I think most people still (rightly) eye it with suspicion even if they also appreciate some things about it.

Yep. Much has changed, and, certainly, the notion of federal gov as benevolent dictator is part of it.
There are obvious clues that the feds are not always wanted: presently, marijuana and abortion are stand-outs.

Our psyches aren’t much for thinking we need to protect ourselves - from our own government!
But this was not eccentric thinking early on. Many who made the tough journey to get here sought a new way, a way to avoid persecution. Many were sent away - a form of punishment, or in exchange for worse punishment.

Life was no picnic even for the educated and wealthy. Not by today’s standards. All risk. Many dangers. No guarantees.

[Robert]

And of course, state and local governments were not bound by the Second Amendment at all, it applied only to the Federal government.

I disagree with this. All states were/are bound by the constitution and the amendments to it.

I don't think that was true until after the Civil War and the 13th and 14th Amendments. Google incorporation bill of rights to read about this.

I think the following is accurate:

Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state, governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank (1876) still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

I hit the wrong button and edited some of this post instead of replied to some of this post. Sorry. Below is my reply. I can't get back the edited out part.

I will have to think on this a bit. The Supreme Court back then accepted slavery. Not sure I can take one decision and paint everything with it.

I do agree that some states and cities do regulate guns more than the federal government. Maybe that is what needs to happen. Each state can figure out what works for them as their citizens elect representatives that pass laws. I personally saw the Bill of Rights should be affective for slaves. The early courts did not. Maybe they chose to view it that way to keep unity over ideology.

I see that then, as now, people saw into things what they wanted and read into laws and amendments what they wanted. Maybe I am just too absolute of a thinker to accept it.