Family Research Center Shooting

[Pinky]

""The Second Amendment ain't about hunting." [1] The current debate concerning whether a particular gun is better suited for a hunting or sporting purpose completely misses the aim of the second amendment. The second amendment recognized a common law and natural law right, taken for granted as inalienable, to keep and bear arms. Additionally, the second amendment was directed at maintaining an armed citizenry for mutual defense, and perhaps most significantly, to protect against the tyranny of our own government. [2]

Colonial Americans possessed guns for a variety of purposes, including hunting, personal self-defense and mutual defense against the Indians, the Spanish, the Dutch, and the French. These necessities "put firearms in the hands of nearly everyone." [3] The only people denied this right, "Mulattoes, Negroes and Indians," were those who also enjoyed less than full benefits of citizenship. [4]
"

http://www.saf.org/LawReviews/Moncure1.html

[Pinky]

Actually this one really is fascinating stuff, in that it directly contradicts your revisionist efforts to reframe the second amendment.  Lets read it in it;s entirely.

Copyright © 1991 by the Howard University School of Law; Thomas M. Moncure, Jr.


"The Second Amendment ain't about hunting." [1] The current debate concerning whether a particular gun is better suited for a hunting or sporting purpose completely misses the aim of the second amendment. The second amendment recognized a common law and natural law right, taken for granted as inalienable, to keep and bear arms. Additionally, the second amendment was directed at maintaining an armed citizenry for mutual defense, and perhaps most significantly, to protect against the tyranny of our own government. [2]

Colonial Americans possessed guns for a variety of purposes, including hunting, personal self-defense and mutual defense against the Indians, the Spanish, the Dutch, and the French. These necessities "put firearms in the hands of nearly everyone." [3] The only people denied this right, "Mulattoes, Negroes and Indians," were those who also enjoyed less than full benefits of citizenship. [4]

The tradition of an armed citizenry has long been recognized in England. [5] As early as 872 A.D., the "Great Fyrd" required both [p.590] nobles and peasants to keep arms that were appropriate to their status. [6] While the "Great Fyrd" was unsuccessful against the Norman invasion, the Assize of Arms of 1181 retained this tradition by, again, requiring the possession of arms. [7] The presence of an armed citizenry is credited, in part, for the failure of a feudal system to exist in England. [8]

Of more immediate interest to the Colonists were events that occurred during the revolutionary period of 17th century England. When the commonwealth government, under Oliver Cromwell, attempted to disarm Catholics, its force was met in kind following the restoration by James II's attempt to build a standing army composed of Catholics. [9] These abuses led to the adoption of the English Bill of Rights, which guaranteed that "subjects who are Protestants, may have arms for their defense suitable to their condition." [10]

Sir William Blackstone, the "[g]reat [e]xpositor of the English law," [11] noted that common law recognized the three principle rights of the people as "the right of personal security, the right of personal liberty, and the right of private property." [12] In the redress of private wrongs, the common law acknowledged self defense as the "primary law of nature so it is not, neither can it be, in fact, taken away by the law of society." [13] These rights were found to be illusory absent arms, so Blackstone described the "right of having arms for self-preservation and defense" as an auxiliary right. [14]

Two qualifications of the right to keep and bear arms were noted at common law. [15] The first concerned the suitability of an arm [p.591] to a particular class. The second qualification addressed the carrying of weapons so unusual as to cause a breach of the peace. Mere possession was not sufficient to constitute an offense, since conviction generally required the intent of "riding or going armed" to the terror of the populace. [16]

The prevalence of arms in colonial America, no less than in England, made the imposition of tyranny a dangerous proposition. In the 17th century, Royal Governor William Berkeley complained it was miserable to attempt to govern "a people where six parts of seaven [sic] at least are [p]oore [sic], [e]ndebted [sic], discontented and armed". [17] Thus it should be of little surprise that at the Revolution's onset, General Gage, in Massachusetts, and Lord Dunmore, in Virginia, first attempted to seize the colonists' gunpowder and arms.

At the Revolution, states' Bills of Rights typically included provisions which dealt with the militia and the right to bear arms. [18] Following independence, concern that the consolidated government might usurp individual liberty led the United States to enact the Bill of Rights. Patrick Henry, equating the potential tyranny of Congress to that of the Crown, was convinced that liberty could only be preserved with "downright force." [19] The prevalence of this opinion is reflected in Thomas Jefferson's famous suggestion that the "tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." [20]

The second amendment, when presented to the states for ratification, attracted remarkably little attention. [21] Because it embodied [p.592] fundamental common law and republican principles, the lack of comment was not surprising. [22] Federalist No. 46, written by James Madison, already addressed "the advantage of being armed, which Americans possess over the people of almost every other nation." His description of the militia showed that he shared the same republican principles of the anti-federalists: "[c] itizens with their arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence." [23] Madison finally noted that in the "several kingdoms of Europe ... governments are afraid to trust the people with arms." [24]

The fear of a standing Army underlies the second amendment, [25] this fear is also reflected in the third amendment. [26] Senator William MacLay, from Pennsylvania, during the first federal Congress, bemoaned that with a standing army "we must soon forego our republican innocence" and in so doing "set apart a portion of our citizens for the purpose of inflicting [m] isery on our fellow [m]ortals." [27] In context, it should be noted that two of the amendments proposed by Congress, regarding the size of districts and compensation, were rejected.

The United States Supreme Court had no occasion to review the second amendment prior to the passage of the fourteenth amendment. Prior to the doctrine of selective incorporation, the cases heard in the 19th century are as unillustrative as they are unpleasant. One such case involved an attempt by 100 members of the Ku Klux Klan to disarm two men "of African descent." [28] Another concerned a worker's parade involving essentially a mini-army. [29] In these cases the Court held that the second amendment was a ban only to federal [p.593] action and thus not applicable to state action. [30]

The Court's refusal, in the 19th century, to extend the Bill of Rights protection to state action, even after passage of the fourteenth amendment, came as little surprise. Chief Justice Taney, in the infamous Dred Scott decision, had expressed concern that if free African-Americans were "entitled to the privileges and immunities of citizens," they could "keep and carry arms wherever they went." [31]

Lack of constitutional protection in the late nineteenth and early twentieth centuries gave rise to gun laws which targeted certain racial and ethnic groups. [32] Specifically, Jim Crow legislation in the South and the Sullivan Law in New York assured that guns were not available to African- Americans, Italians and other such "undesirables." [33] These laws sought, as had General Gage and Lond Dunmore, sought to assure the subjugation of a people. [34]

The only case squarely dealing with the second amendment in this century, United States v. Miller, [35] has been cited as authority by both sides of the gun issue. This case challenged the National Firearms Act of 1934 [36] which restricted, but did not prohibit, the possession of certain firearms, including machine guns. The Miller Court refused to take judicial notice that a short barreled shotgun, had "some reasonable relationship to the preservation or efficiency of a well regulated militia," and was therefore not protected. [37]

Does Miller mean that only the Militia may have arms, or that the people may possess only arms suitable to service in the Militia? Professor A.E. Dick Howard found the latter reading a "disconcerting possibility," [38] though it was in accord with the intention of the founders. George Mason, asking rhetorically "[w]ho s the [p.594]

[m]ilitia?," responded that the militia is the "whole people." [39] Mason went on to express the concern that the militia of the future might exclude some of the people from its ranks.

Many civil libertarians, uncomfortable with the private possession of firearms, have found the militia prefatory clause of the second amendment a convenient exculpatory clause. The Supreme Court has not dealt directly with the constitutional militia, as opposed to the National Guard, but there is nothing to indicate that the militia, under second amendment analysis, is anything other than the "whole people." [40]

In Perpich v. Dep't of Defense, [41] the Court distinguished the "National Guard," the organized militia of the various states, from the "National Guard of the United States," a reserve component of the Armed Forces of the United States. [42] In reaching its decision, the Court did not need to explore the nature of the unorganized, or constitutional, militia. [43] All states and the federal government have enacted provisions dealing with the militia independent of the National [p.595] Guard. [44]

The greater issue of the second amendment revolved around whether it would be incorporated into the fourteenth amendment and thus be applicable to state action. While incorporation could be avoided by treating the right as collective rather than individual, the greater weight of constitutional interpretation and simple intellectual integrity dictates its incorporation. Chief Justice Rehnquist noted the term "the people" had the same meaning in the

first, second, fourth, ninth and tenth amendments. [45] Professor Sanford Levinson has also suggested the incongruity of reading "the people" as conveying individual rights in some amendments and as solely a collective right in the second. [46]

Current provisions regulating "assault weapons" reflect not only a disregard of constitutional history, but fundamental technical ignorance. [47] A true "assault rifle" is capable of selectively firing both fully automatically and semi-automatically, [48] and is currently regulated under the National Firearms Act of 1934. [49] Recent "assault weapons" acts are aimed at semi-automatic rifles, as well as pistols and shotguns with certain cosmetic features, literally guns that "look" intimidating, but have a basic function and have been in existence for over 100 years. [50] [p.596]

It is a most pernicious form of elitism that preserves the rights of the wealthy to buy aesthetically elite guns, but deprives poor people access to firearms within their economic means. The recent attempt to deprive public housing tenants of their right to possess firearms has drawn the ire of the National Association for the Advancement of Colored People because this deprivation, in effect, equates them with "felons and lunatics."

Calling a dog's tail a fifth leg does not change the tail, any more than calling a gun an "assault weapon" changes its basic function. Questioning the suitability of particular guns for hunting overlooks the potential suitability for purposes of self defense. As government is under no obligation "to protect an individual against private violence," [51] the people must retain a means of protecting themselves. Even if one adopts the conservative view of the ninth amendment, namely that rights at common law were preserved, the right to keep and bear arms exists independent of the second amendment.

The founders sought to protect arms from government interference, because those same arms might be needed to protect the people from government. They wanted to assure that the people remained both armed and dangerous to tyranny. [52] The Virginia Declaration of Rights not only reserved the right to overthrow a despotic government, but suggested it has an affirmative duty of the people:

[t]hat government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best ... is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and, whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal. [53] [p.597]

Mr. Mason's language remains unchanged in Virginia's current constitution. [54]

Our constitutional system has existed and prospered because of adherence to fundamental principles, and in particular to those liberties set forth in the Bill of Rights. [55] To suggest that the second amendment is entitled to less dignity than other amendments is to disparage the entire Bill of Rights. The second amendment is not about hunting but it is, in its final analysis, about liberty.

[Pinky]

fascinating stuff, but again, it is widely known that gun technology was present at the time, and gun ownership was common for the wealthy.

Wrong.  Not just the wealthy.  Everybody.

[NotNow]

OMG, Pinky is a Democrat that can read!

[Pinky]

arm 2  (ärm)
n.
1. A weapon, especially a firearm: troops bearing arms; ICBMs, bombs, and other nuclear arms.
2. A branch of a military force: infantry, armor, and other combat arms.
3. arms
a. Warfare: a call to arms against the invaders.
b. Military service: several million volunteers under arms; the profession of arms.
4. arms
a. Heraldry Bearings.
b. Insignia, as of a state, an official, a family, or an organization.

[Pinky]

"Guns" are found on battleships, we're discussing "arms" a term which is interchangeable with "firearms".  The constitution makes no reference to "gats" nor "heaters" nor "pieces" nor any other colloquial term for "arms".  It does very specifically refer to "arms" however. 

[Pinky]

fascinating stuff, but again, it is widely known that gun technology was present at the time, and gun ownership was common for the wealthy.

Wrong.  Not just the wealthy.  Everybody.

So you contend that Slaves, Native Americans, Disloyalists and Blacks were legally allowed to posess guns at the time of the ratification of the Bill of Rights?

Ugh.  I'll let Royal Governor William Berkeley do my contending.  Again.

The prevalence of arms in colonial America, no less than in England, made the imposition of tyranny a dangerous proposition. In the 17th century, Royal Governor William Berkeley complained it was miserable to attempt to govern "a people where six parts of seaven [sic] at least are [p]oore [sic], [e]ndebted [sic], discontented and armed". [17] Thus it should be of little surprise that at the Revolution's onset, General Gage, in Massachusetts, and Lord Dunmore, in Virginia, first attempted to seize the colonists' gunpowder and arms.

[NotNow]

actually the points I have brought up are not revisionist, unless these posts---which you apparently believe are in opposition--are also revisionist, since they arrive at the same conclusions.

The essay you cite here, merely states a response to a counter argument and attempts to conflate Justice Taney's court opinion that Black Citizens were allowed to carry arms just as White Citizens without respect to race with your own argument.

The issue of whether or not 'The People" refers either to the individual citizen or social compact as a whole is an argument that exists independently of what color of people were being lynched by the KKK.

Similarly, merely because this argument (which I am going to guess was unknown to you prior to this forum thread---am I right?) has been traded back and forth for a while, doesnt mean that the underlying issues are any different.

For example, would you agree that

a. guns are mentioned in the Constitution?

b.  that guns are specifically protected as a special technology in the Constitution?

c.  that the constitutional purpose for the Right to Bear Arms was 'just because' or 'sometimes people need killing'?

LOL.   So you are contending that:

"Guns" are not included in the definition of "arms" as used in the Second Amendment?

That the "special technology" of guns (whatever that is supposed to mean) is not protected in the Constitution? (As defined in the Miller case).

That you have found some legal or scholarly reference that says the Second Amendment is about "just because" or " sometimes people need killing"?  (We all know you made that up just to be inflammatory).

Why do you refuse to simply read the words of the men who wrote the Bill of Rights?  Why do you refuse to even acknowledge their clarity?

StephenDare!,

The "nuclear weapon" argument is moot.  A reasonable limitation on individual rights is a long standing legal principle.  The Miller case itself, while inadequate in many ways, was about that very subject.  That is why automatic weapons are so regulated today.  Other, more advanced arms are also outlawed.  The concensus was and has been that the weapons are limited to what a normal foot soldier might bear.  That has never been legally challenged, but is a good guide based on the Miller decision which upheld the short barreled shotgun ban based on its military application.

[Pinky]

Let me ask you a theoretical question Stephen:

Does the second amendment grant the right of the people to bear arms, without the exclusion of firearms of any type? 

Yes or no?

[Pinky]

fascinating stuff, but again, it is widely known that gun technology was present at the time, and gun ownership was common for the wealthy.

Wrong.  Not just the wealthy.  Everybody.

So you contend that Slaves, Native Americans, Disloyalists and Blacks were legally allowed to posess guns at the time of the ratification of the Bill of Rights?

Ugh.  I'll let Royal Governor William Berkeley do my contending.  Again.

The prevalence of arms in colonial America, no less than in England, made the imposition of tyranny a dangerous proposition. In the 17th century, Royal Governor William Berkeley complained it was miserable to attempt to govern "a people where six parts of seaven [sic] at least are [p]oore [sic], [e]ndebted [sic], discontented and armed". [17] Thus it should be of little surprise that at the Revolution's onset, General Gage, in Massachusetts, and Lord Dunmore, in Virginia, first attempted to seize the colonists' gunpowder and arms.

He has failed you.

He failed to mention how many of them had guns, or whose were seized.  So back to the question.

Wrong again.  He says six out of seven.  He also says they're poor, which pretty much throws your "only the wealthy" parse out the window too.  Wrong again.

[NotNow]

"Debunked positions"...Ha!  You are a funny guy.  Nothing you have said has been right or reasonable.  I have simply quoted the founding fathers including the authors of the Constitution and the Bill of Rights. Along with a few USSC decisions.  Just keep declaring yourself right StephenDare!.  What a joke.

[NotNow]

And in what "text" did you find this:

"that the constitutional purpose for the Right to Bear Arms was 'just because' or 'sometimes people need killing'?"

[NotNow]

Also Pinky, the text of the article (published in 1991) is a position paper by Thomas M. Moncure, Jr., a well known ultra conservative writer.

It is not a court finding.

From the same guy that quoted a cooking site for two pages in this very thread! 

This is the funniest you have been in a loooongggg time Dare!

[Pinky]

Let me ask you a theoretical question Stephen:

Does the second amendment grant the right of the people to bear arms, without the exclusion of firearms of any type? 

Yes or no?

The answer to that, obviously is no, as we have already listed firearms that are not legal.

Does it grant the right of people to bear arms, including firearms?  Yes.

Why do you ask?

Where in the Second Amendment does it specify which types of Firearms are not legal?

[NotNow]

Laughable, just laughable excuses. 

And a backwards interpretation of "honesty".   

Pinky, have you figured him out yet?  This is not about an exchange of information.  Or even an honest disagreement.  No amount of documentation will ever be enough, or it will be "right wing".  You can (and will) disprove any poiint he makes and he will always say that you were wrong.  He has no memory, only talking points, diversions, and dishonesty.  At times amusing, StephenDare! is a gifted writer, but there is something seriously wrong going on in there.