From: rats@cbnewsc.cb.att.com (Morris the Cat)
Subject: Re: Rights and Legal Manuevering (Was Re: democratic platform)
Organization: AT&T
Distribution: usa
Date: Wed, 29 Jul 1992 17:29:45 GMT
Followup-To: alt.politics.clinton,talk.politics.guns



In <1992Jul28.192145.16282@sdc.com> Ken Konecki states:

|>     The view that the Second Amendment does not apply to individuals is
|>a fairly new one, originating primarily in the twentieth century.

|You've got it backwards.  The view that the Second Amendment does apply to
|individuals is a fairly new one, originating primarily in the twentieth
|century.  It's also a very contemporary idea that the Bill of Rights
|applies at the state (non-federal) level.

Interesting... any references to support this contention?

==========================================================================

           TOWARD A NEW UNDERSTANDING OF THE SECOND AMENDMENT


                                  -BY-


                             David T. Hardy



      Nearly two centuries ago, the American people voted to guarantee 
that "A well regulated militia being  necessary to a free State, the 
right of the people to keep and bear arms shall not be infringed," a 
statement which remains one of the most controversial provisions of our 
bill of rights. Opponents of gun ownership usually emphasise the "well 
regulated militia" clause, and claim the second amendment was intended 
to protect only National Guard units. Gunowners usually stress the 
"right of the people to keep and bear arms," and conclude that the 
amendment was logically meant to protect an individual right to own and 
use arms.

     Both approaches assume that the second amendment's two clauses had 
but one purpose, and protect either organized reserve units, or the 
individual gun owner. Yet would the First Congress have used two 
different clauses to state one idea? It was a ruthless editor, deleting 
several of Madison's amendments entirely and abbreviating the second 
amendment from his 46 words down to the final 24. Would two clauses that 
said the same thing have survived this ordeal?

     Resolving this problem requires investigation, not just of the 
second amendment, but of the history of our concept of freedom. This 
investigation proves that the first Congress kept both the militia and 
right to arms clauses because each establishes a different principle, 
and each had a distinct history, philosophy, and constituency. But to 
see this, we have to carefully examine the different histories of each 
portion of the second amendment.

THE MILITIA AND THE FREE STATE

     The origin of the militia clause lies, not in America nor even in 
England, but in the medieval Italian city-state of Florence. Historians 
have long known that around the year 1400, while most of Europe was 
under monarchy, Florence suddenly became a "think tank" for republican 
thought. The reason was only recently discovered. In 1399, Florence was 
menaced by the forces of Giangaleazzo Visconti, who nearly established 
himself as monarch of half of Italy, and whose propagandists portrayed 
him as a modern Caesar. The Florentines--who included the greatest 
writers of the age--responded by portraying their government as the 
noble descendant of the Roman republic. Visconti died, a failure, in 1402;
but the legacy of Florence's crisis remained. To a Florentine, patriotism 
and republicanism were identical.

     Over the next century Florentines developed the theory of a 
republic. Their most widely read author was Nicolo Machiavelli,  who 
argued that only a militia, a universal citizen army, could support a 
republic. Machiavelli argued that a weak mercenary army was useless to a 
republic, while a strong one would overthrow it. Only when the citizens 
and the military were the same could the army be both powerful and safe: 
"Rome remained free for 400 years and Sparta for 800, although their 
citizens were armed all that time; but many other states that have been 
disarmed have lost their liberties in less than forty years." Arms also 
gave citizens the will to defend their rights: only the armed have 
virtue--pride, freedom and boldness: "among the other dangers of being 
disarmed, it causes you to be despised."

     Machiavelli's republicanism entered English political thought 
through James Harrington, a remarkable political thinker of the 1650's. 
Harrington argued that a stable republic rested upon the triple 
relationship of land ownership (representing economic power), voting 
rights (representing political power) and militia duty (representing 
physical power). Let landowners be given the franchise and organized 
into a militia, and the republic would be forever secure. "Men 
accustomed to their arms and their liberties will never endure the 
yoke." Harrington's followers--who became known as the Classical 
Republicans--expanded upon his theme: "democracy is much more powerful 
than aristocracy," Henry Neville wrote, "because the latter cannot arm 
the people for fear they could seize upon the government."

     In England, the Classical Republicans were the proverbial day late 
and dollar short. England had long had a militia. As early as the 
seventh century, all freemen were required to serve in the fyrd, or 
militia, and to own arms. But by the Harrington's time these 
traditional duties were being supplanted by a standing army. Only in the 
American colonies did Harringtonian thought take hold; John Adams, our 
second President, was not the only American who claimed he learned 
politics from Harrington.

     The experiences of our Revolution reinforced the militia ideal.  
Historian Donald Higginbotham has called the American militia "absolutely 
essential to the launching and continuance of the Revolution," for it 
stripped Tory forces of their home ground and created an insoluable 
qsupply problem which would have ended the war even without victory by 
Washington's army.

     But while republicanism and the militia concept were a vital 
component of revolutionary American political thought, they were not early 
Americans' only philosophy, nor the only link between arms and freedom.

THE INDIVIDUAL RIGHT TO ARMS

       The republican concept stressed stability and the survival of the 
state; it saw a free state as one preserved from outside occupation and 
internal tyranny. In the 18th century, Enlightenment, or "radical" 
thought added a new dimension: a free state was one where individuals 
retained certain rights even as against the government they elected.

      But what individual rights were beyond the powers even of a 
free Republic? The most basic answer: "unalienable" rights, those no 
human could give up or alienate. This concept came from Harrington's 
contemporary, Thomas Hobbes. Hobbes contended that governments were 
founded for one reason--to safeguard each citizen against violence. The 
right to defend oneself if the government failed to do so was thus 
unalienable: if the government failed to protect, it had already 
breached its contract with the citizen.  "A covenant not to defend 
myself from force, by force, is always void... For the right men have by 
Nature to defend themselves, when none else can protect them, can by no 
Covenant be relinquished." Thus, at a minimum, no citizen could ever 
give up a right to self-defense--even if he desired to. European writers 
such as Pufendorf and Burlamaqui--always favorites of Jefferson--even 
argued that self-defense was a moral duty: a failure to defend against 
illegal attack was, like suicide, a moral wrong.

     To go from a right to self defense to a right to arms suitable 
for such defense was but a minor step, which came in the wake of the 
English Civil War. When, after that war, Charles II ascended the throne 
in 1660, he began to disarm the English people. A limited 
militia, composed only of his supporters, was ordered to seize the arms 
of all "disaffected persons." The 1662 Militia Act formally empowered 
militia officials to seize the arms of anyone they might "judge 
dangerous to the peace of the kingdom." His successor, James II, ordered 
vigorous enforcement of that Act. English governmental records of the 
1680's are filled with reports of arms seizures, and orders for still 
more searches and raids.

     But James eventually went too far, and in 1688 he 
was overthrown and driven from the kingdom. Parliament enacted a "Bill 
of Rights" which all future monarchs must swear to uphold. Among the 
"ancient rights and liberties" thus protected was that of having "arms 
for their defense, suitable to their conditions and as allowed by law." 
(It is noteworthy that an early draft had proposed a citizen right to 
arms for the "common defense;" the House of Lords demanded that this be 
changed to "for their defense.")

      The 1688 declaration became the core of common law rights. 
Blackstone's great legal treatise labelled its arms clause as an 
extension of "the natural right of resistance and self-preservation." In 
the 1760's, American newspapers invoked Blackstone to establish that "it 
is a natural right which the people have reserved to themselves, 
confirmed by the Bill of Rights, to keep arms for their own defense." 
Thus, by 1688, an individual right to arms for self-defense was 
enshrined in British law. It was quite independent of the militia 
concept--after all, it was the James' militia that had been responsible 
for disarming individuals, and "Militia Act" which had legalized this!

AMERICA, 1776: THE CONFLICT BETWEEN MILITIA AND INDIVIDUAL ARMS RIGHTS

     The difference between republican (militia-emphasizing) and 
Enlightenment (individual-arms-emphasizing) approaches became most 
distinct in 1776, when many newly-independent states adopted 
constitutions. The first, Virginia, considered several proposals, and 
two of these proposals embodied are direct ancestors of the 
second amendment. Thomas Jefferson submitted a thoroughly 
Enlightenment draft, which would have extended the electoral franchise 
to all taxpayers, regardless of land ownership, and failed to mention 
the importance of the militia. But Jefferson's draft establishes him as 
the father of the "right to arms" portion of the second amendment; he 
would have guaranteed that "no freeman shall ever be debarred the use of 
arms."

     George Mason, on the other hand, submitted a solidly republican 
approach. Mason would have limited the franchise to landowners, and, 
while leaving individual arms unmentioned, would have recognized that a 
"well regulated militia" was the "proper, natural and safe defense of a 
free State." Mason thus sired the "well-regulated militia" portion of 
the amendment. The Virginia legislature, dominated by major landowners, 
opted for a version of Mason's draft.

     Only a few months later, Pennsylvania likewise adopted a 
constitution. But, unlike Virginia, its convention was 
completely dominated by Enlightenment thought. (Pennsylvania's 
"establishment" had opposed independence; its "radicals," Jeffersonians 
to a man, hijacked the State constitutional convention). The 
Pennsylvania convention had copies of the Virginia 
declaration of rights and, John 
Adams tells us, it took its own bill of rights "almost verbatim" from 
these. But there was one very conspicuous exception. Pennsylvania 
entirely omitted Virginia's section praising the militia. Instead it 
substituted a clear individual rights guarantee: "the people have a 
right to bear arms for the defense of themselves and the State." Where 
the Virginia republicans had stressed the militia, the Pennsylvania 
Jeffersonians instead guaranteed individual rights to arms. They also 
made clear their emphasis on self-defense. Whereas Virginia had begun 
its Declaration with a statement that governments were founded to 
ensure, among other things, the public "safety," Pennsylvania opened 
with the note that all men "have certain natural, inherent and 
unalienable rights"--the first one listed being that of "enjoying and 
defending life and liberty."

      Later states essentially chose between these two models, depending 
upon which group was in control. But Jeffersonian democracy, with its 
emphasis on individual freedom, increasingly won out. In State after 
State--Connecticut, Kentucky, Indiana, Mississippi, Missouri, to name 
but a few--voting rights were given to all taxpayers, and individual 
rights to arms were guaranteed.

      Thus, prior to the Federal constitutional convention, 
Americans saw themselves as having two choices for bills of rights; a 
Classical Republican emphasis on the militia's importance to a State, or 
a Jeffersonian emphasis on rights to arms for the individual.

THE FEDERAL BILL OF RIGHTS: BOTH THE MILITIA AND A RIGHT TO ARMS

      In 1787, delegates met to draft proposed amendments to the 
Articles of Confederation. Instead, they resolved to draft an entirely 
new document, a written constitution. This set the stage for verbal 
battles throughout the States, as conventions met to determine whether 
their proposal should be ratified.

      One major weakness of the constitution was its lack of a bill 
of rights. The demands for such a bill came from almost entirely 
from Jeffersonian groups; they predictably ignored the militia, and 
sought guarantees of individual arms. In Pennsyvania's ratifying 
convention, a crucial report drafted by Jeffersonians called for a bill 
of rights guaranteeing that "no law shall be passed for disarming the 
people or any of them, unless for crimes committed, or real danger of 
public injury from individuals." Instead of praising the militia, it  
treated it as a danger to individual rights, since it allowed everyone 
to be subjected to martial law!

      Alerted by the Pennsylvania delegates, other Jeffersonians pressed 
for individual rights to arms. In Massachusetts, Sam Adams called for a 
bill of rights guarantee that the new government would never "prevent 
the people of the United States, who are peaceable citizens, from 
keeping their own arms." Crucially, the New Hampshire convention, which 
gave the constitution the crucial ninth ratification, which made the 
document binding on the States which had already ratified, demanded 
security that "Congress shall never disarm any citizen except such as 
are or have been in actual rebellion."

     So far, the militia had received little emphasis; by 1787 Jefferson 
carried far more weight with Americans than did Harrington. But then 
came the Virginia convention, the one place where republicans as well as 
Jeffersonians were demanding a bill of rights. In 1776, Virginia had sired 
both George Mason's proposal to protect the militia, and Jefferson's 
proposal to protect individual arms. This time, the Virginians saw no need 
to choose between these ideas: both were vital. Patrick Henry lauded the 
militia and also argued that "the great object is, let every man be armed,"
while his colleague Richard Henry Lee both argued for a militia of 
landowners and claimed that "to preserve freedom, it is essential that the 
whole body of the people always possess arms, and be taught alike, 
especially when young, how to use them."

     By the end of the Virginia convention, even Mason, the archtypical 
militia supporter, accepted that British attempts to undermine the 
militia had been but a first step in a broader, more diabolical plan 
to strip Americans of all arms:

      "Forty years ago, when the resolution of enslaving America was 
formed in Great Britain, the British Parliament was advised by an artful 
man, who was governor of Pennsylvania, to disarm the people--that was 
the best and most effectual way to enslave them--but that they should 
not do it openly; but to weaken them and let them sink gradually, by 
totally disusing and neglecting the militia"

      The Virginia convention for the first time proposed a bill of 
rights that would both laud the militia and guarantee individual arms: 
"the people have the right to keep and bear arms; that a well regulated 
militia, composed of the body of the people trained to arms, is the 
proper natural and safe defense of a free State...."

     When, a year later, James Madison moved enactment of an American 
Bill of Rights, he took the future second amendment largely from the 
Virginia model. We know that the First Congress agreed to keep the two 
ideas separate, since the Journal of the First Senate shows it voted 
down a motion to add "for the common defense" to the right of arms 
guarantee. We also know that Americans of the time accepted that 
Madison's language covered the individual rights demanded by other 
spokesmen. Newspapers in Boston and Philadelphia described the future 
second amendment as incorporating Sam Adam's demands, including his 
clearly individual right to bear arms, while the Federal Gazette on June 
18, 1789 explained that by Madison's draft "the people are confirmed by the
next article in the right to keep and bear their private arms." (Madison 
wrote the author with his thanks, and noted that the article had been 
reprinted in all the newspapers in the then-capital.).

EPILOGUE

     The militia ideal faded in the new nation. In 1792 Congress enacted 
the first Militia Act, which did require virtually every adult citizen to 
own a firearm and ammunition, but made no provision for their organization 
or training. (In 1903 this enactment was replaced with a statute, the 
present 10 U.S.C. 311, which did define the militia to include most 
citizens, but failed even to specify their armament). Since the militia 
portion of the second amendment does not command Congress to do anything--
it merely says that a "well-disciplined militia" is "necessary,"--it 
became no more than an artifact of Classical Republicanism, and the only 
part of the Bill of Rights that orders the government to take action.

     The second half of the amendment, on the other hand, had been 
proposed by the Jeffersonians, and together with their other concepts 
(voting rights for all taxpayers, protection of individual rights, 
greater economic freedoms) grew in the age of Jeffersonian democracy. 
Almost from the outset, Americans saw the individual right to arms, not 
the fading militia ideal, as the real meat of the second amendment. St. 
George Tucker, in his famous 1803 edition of Blackstone simply quoted 
the right to arms portion of the amendment, and added that "The right of 
self defence is the first law of nature." William Rawle, a friend of 
Washington whose 1825 "View of the Constitution" was used in many 
American law schools, did discuss the militia clause--only to vaguely 
conclude that States ought to adopt such laws "as will tend to make good 
soldiers." Turning to the amendment's second portion, he became quite 
concrete: " The corollary from the first position is that the right of 
the people to keep and bear arms shall not be infringed. The prohibition 
is general. No clause in the constitution could by any rule of 
construction be conceived to give to Congress a power to disarm the 
people."

     Where, then, did anyone get the idea that the right to arms was 
linked only to militia duty, and not to the individual right of self 
defense? This mistake is a modern one.The earliest court decisions--
Kentucky in 1822, Indiana in 1833, Georgia in 1837, to name only a few--
recognized an individual right to arms. The Georgia Supreme Court in 
paricular noted that the second amendment protected "the right of the 
whole people, old and young, men, women and boys, and not militia only, 
to keep and bear arms of every description." Only in 1905 did a 
Kansas court invent (without any historical examination worth 
mentioning) the idea that the right to bear arms was meant only to protect 
the organized state militia. Since there is no question that the right to 
arms clause was more important to the the Americans who demanded a bill 
of rights--prior to Virginia's convention, few proposals even gave the 
militia a mention--this was truly a case of the tail wagging the dog! 
There had been framers who stessed the militia--but they were 
appeased by the first part of the second amendment; its right to arms 
clause was meant to answer entirely different critics, seeking an 
entirely different principle. In any event, few antigunners would really 
want to restore the militia system, which made gun ownership 
mandatory. Their claims actually seek to defeat both 
portions of the second amendment, and to circumvent George Mason's 
objectives as well as those of Thomas Jefferson.

                                 -END-
ADDENDUM:

     This article represents an extreme condensation of the thesis 
advanced by the author in his article "The Second Amendment and the 
Historiography of the Bill of Rights," JOURNAL OF LAW AND POLITICS, vol. 
4, p.1 (1987). Also of interest may be the author's "Armed Citizens, 
Citizen Armies: Toward a Jurisprudence of the Second Amendment," HARVARD 
JOURNAL OF LAW AND PUBLIC POLICY, vol.9, p.559 (1986).
     The quickest reference for those wishing the study the second 
amendment's history may be the author's recent book, "Origins and 
Development of the Second Amendment," which argues for an individual 
right, using quotations which can easily be adapted to speeches or 
letters to the editor. The 95-page hardback book, published by 
Blacksmith Corp., was called "An indispensible handbook which should by 
on every gunowner's bookshelf" by Man at Arms magazine (July/Aug. 1987). 
It is available from the Second Amendment Bicentennial Project, 3066 
Valley Lane, Falls Church VA 22044 for $14.25 postpaid.
      Another good reference is Stephen Halbrook's book, "That Every Man 
Be Armed: The Evolution of a Constitutional Right." A limited number of 
paperback editions of this work are available from the same source for 
$11.75 postpaid.
     Photocopies of 62 page article, "The Second Amendment and the 
Historiography of the Bill of Rights" are also available from the SABP for 
$3.95 postpaid.


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