From: cramer@optilink.UUCP (Clayton Cramer)
Newsgroups: misc.legal,talk.politics.misc,ca.politics,ba.politics
Subject: Re: Literal Constitutionalism (was: NY State...)
Date: 6 Apr 92 16:36:58 GMT
Organization: Optilink Corporation, Petaluma, CA

In article <1992Apr3.022433.18990@panix.com>, lkk@panix.com (Larry Kolodney) writes:
> In <1992Apr1.120217.14201@athena.mit.edu> wdstarr@athena.mit.edu (William December Starr) writes:
> >In article <1992Apr1.023237.7832@dartvax.dartmouth.edu>, 
> >Joe.Francis@dartmouth.edu (Joe Francis) said:
> 
> >> Where do we draw the line on the right to bear arms?  It seems
> >> obvious that we can all have large rubberbands if we want, and
> >> that we can't have nuclear warheads.  Did the framers of the 2nd
> >> say anything useful, like whether anyone could have an artillery
> >> unit?
> 
> >All the framers said was "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."  They _could_ have said "...the
> >right of a well regulated militia to keep and bear personal Arms
> >with effective kill ranges not greater than what is technologically
> >available as of the date of ratification of this Amendment," but
> >they didn't.  Therefore, according to the supreme Law of the Land
> >(Article VI), we the people have the right to keep and bear both
> >large rubber bands _and_ nuclear warheads.  Any law which infringes
> >on this right is unconstitutional.
> 
> They could have also said "The right to keep and bear arms shall not
> be infringed."  But they didn't.  They added lanaguage about "a well
> REGULATED militia."  Exactly what type of regulation do you think they
> had in mind?
> 
> larry kolodney:(lkk%panix.com@nyu.edu) 

Mr. Kolodney, unfortunately, knows nothing of the history of how
the Second Amendment acquired its present form.  The form in which
it was introduced by Rep. James Madison was:

              The right of the people to keep and bear arms shall not
              be infringed;  a well armed, and well regulated militia
              being the  best security  of a  free  country;  but  no
              person religiously scrupulous of bearing arms, shall be
              compelled to render military service in person.[84]

Notice that there was no limitation on the right associated with
militia service.  Madison's notes make it clear that these were
all individual rights being protected:

            "They relate  1st. to  private rights--"[92] In consultation
            with Edmund  Pendleton, "amendments may be employed to quiet
            the fears  of many  by supplying  those further  guards  for
            private  rights."[93]  That  Madison's  concerned  were  not
            limited to  a President  with monarchial ambitions, the fear
            most expressed  by Patrick  Henry, can be found
            later in his notes for that same speech:

              

              Object of Bill of Rhts

              To limit  & qualify  powr. by exceptg. from grant cases
              in wch.  it  shall  not  be  exercised  or  exd.  in  a
              particular manner.

              to guard     1. vs. Executive & in Engd. &c--

                           2. Legislative as in Sts--

                           3. the majority of people


              ought to  point to  greatest danger  which in  Rep.  is
              Prerogative of majority--[94]

              Madison's  intent is  clear: the Bill of Rights
            was a  protection against  abuse of  power by  not only  the
            executive branch,  but against  legislative abuse  of power,
            even if  it reflected "the majority of people".  Indeed, the
            speech  of   June  8,  1789,  when  Madison  introduced  his
            proposal, reflected this:

              But whatever may be [the] form which the several states
              have  adopted   in  making  declarations  in  favor  of
              particular rights, the great object in view is to limit
              and qualify  the powers of government, by excepting out
              of  the  grant  of  power  those  cases  in  which  the
              government ought  not to  act, or  to  act  only  in  a
              particular mode.  They point these exceptions sometimes
              against the  abuse of  the executive  power,  sometimes
              against the  legislative, and,  in some  cases, against
              the community  itself; or,  in other words, against the
              majority in favor of the minority.[95]

By the way, the Senate DID discuss making a change to create a
narrow understanding of the Second Amendment, of the type that would
make Mr. Kolodney's half-plausible:

              Finally, on  September 9th, the Senate replaced "the best"
            with "necessary  to the",  giving the  Second Amendment  its
            present language.  On the same day, a motion to add "for the
            common  defence"   after  "bear   arms"  failed.      An
            opportunity  to  make  the  Second  Amendment  more  clearly
            republican had  been presented,  and the Senate chose not to
            do so.   Unfortunately,  no debate  survives to explain this
            vote.[118]   Professor Cress  tells us, "Little is known about
            the Senate's  debate on  the Second  Amendment..." but Cress
            knows enough  to tell  us that  the motion  to add  "for the
            common defence":

              no doubt  reflected efforts  to ensure  that it was the
              militia that  was to bear arms; its rejection reflected
              not the  undesirability of  that end  but, rather,  the
              feeling that the proposal was redundant.[119]

            In the  absence of any surviving debate about this vote, how
            do we know this?  Cress opines, and moves on.
              John Randolph,  a student  at Columbia College, was a ward
            of St. George Tucker and nephew of Rep. Theodorick Bland[120];
            one might  say that  he was  politically well-connected.  On
            September 11,  1789,  John  Randolph  wrote  to  St.  George
            Tucker:

              

              A majority  of the  Senate were  for not  allowing  the
              militia arms  & if  two thirds had agreed it would have
              been an amendment to the Constitution.  They are afraid
              that the  Citizens  will  stop  their  full  career  to
              Tyranny & Oppression.[121]

              Tucker was  one  of  the  Antifederalists[122],  and  later,
            became a  prominent legal  commentator; it would appear that
            John Randolph  shared the  Antifederalist fear  that the new
            government had nefarious ambitions.  Since the Senate debate
            was secret,  we must  assume that Randolph's statement is at
            least second-hand.   Further,  it seems  unlikely  that  the
            Senate would  have been  so bold  as to  directly state  the
            purpose Randolph  that ascribes  to them.  Nonetheless, this
            is evidence  that  the  Senate,  or  least  its  detractors,
            recognized that  by adding  "for the  common defense" to
            the Second  Amendment meant  "not allowing the militia arms"
            and disarming "the Citizens".


            ____________________________________________________________
              84 Charlene Bangs Bickford & Helen E. Veit, ed.,
            Documentary History of the First Federal Congress 1789-91,
            (Baltimore, Johns Hopkins University Press: 1986), 4:10.
              89 Charles F. Hobson & Robert A. Rutland, ed., The Papers
            of James Madison, (Charlottesville, University Press of
            Virginia: 1977), 12:201.
              90 Cress & Shalhope, "The Second Amendment and the Right
            to Bear Arms: An Exchange", Journal of
            American History, 71:3 [December 1984], 589.
              91 Lawrence Delbert Cress, "An Armed Community: The Origins 
            and Meaning of the Right to Bear Arms", Journal of American 
            History, 71:1 [June 1984], 36.
              92 Hobson & Rutland, 12:193.
              93 Cress & Shalhope, "The Second Amendment and the Right
            to Bear Arms: An Exchange", 589.
              113 Bickford & Veit, 4:36.
              114 Helen Veit, Kenneth R. Bowling, & Charlene Bangs
            Bickford, ed., Creating The Bill of Rights: The Documentary
            Record from the First Federal Congress, (Baltimore, Johns
            Hopkins University Press: 1991), xix.
              115 Stephen P. Halbrook, That Every Man Be Armed, 
            (University of New Mexico Press: 1984); reprinted (Oakland,
            The Independent Institute: 1984), 81.
              116 Jonathan Elliot, The Debates of the Several State
            Conventions on the Adoption of the Federal Constitution,
            (New York, Burt Franklin: 1888), 4:423.
              117 Cress, 37.
-- 
Clayton E. Cramer {uunet,pyramid}!optilink!cramer  My opinions, all mine!
"The mass of mankind has not been born with saddles on their backs, nor a
favored few booted and spurred, ready to ride them legitimately, by the grace
of God." -- Thomas Jefferson
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