From: rats@cbnewsc.cb.att.com (Morris the Cat)
Subject: Re: right to bear arms
Organization: AT&T
Distribution: usa
Date: Fri, 17 Apr 1992 14:55:30 GMT


In <1992Apr16.123615.1@ulkyvx.louisville.edu> it states:

|Yes, the musket theory puts my point in silly terms. (Next time I'll
|include the :) )   One of the problems with this country is that we have 
|founding fathers that we assume could do no wrong.  Ask yourself this: if
|Thomas Jefferson and Co. were around today and saw drive-by shootings in Los
|Angeles by kids bearing shotguns do you _honestly_ think they would be so
|anxious to allow everyone to easily own a gun?

You think crime was non-existant with guns back in Colonial times?

You think that Jefferson trusted only government with weapons?

You think that Jefferson would want only criminals and government
trustworthy enough for weapons?

Remember what the average age was back during those times considering
average life expectancy; what we consider 19-year old "kids" today
were considered perfectly rational human beings.

Damn right Jefferson would want a gun for everyone; your logic states:

	Oh, the more criminals use weapons for mayhem, the less
	every individual needs a weapon to preserve their life.
	
Your logic would mean that the proper response to an escalation of
force by malcontents is to downgrade the force availible to counter
that.

How did Jefferson _REALLY_ feel as to why people should have guns?

------------------------------------------------------------------------
This article appeared in the November 1984 American Rifleman. Mr. Halbrook
is author of "That Every Man Be Armed: The Evolution of a Constitutional
Right," that is based on previously unknown material. Holding a Ph.D.,
J.D., his book is the most comprehensive work to ever appear on the
Second Amendment.
------------------------------------------------------------------------

    To Bear Arms for Self-Defense: our Second Amendment Heritage
		By Stephen P. Halbrook
		
More than any other freedom guaranteed in the Bill of Rights, the Second
Amendment "right of the people to keep and bear arms" has been subjected
by its enemies to Orwellian Newspeak. In George Orwell's prophetic 1984,
Big Brother was not content merely with prohibiting possession of firearms
by any of his subjects. Totalitarian rule also required that words be
rendered meaningless so that subversive thoughts could be suppressed.
Today, anti-gun advocates claim that "the people" means the National
Guard only, that to "bear" does not mean carry, and that pistols are
not "arms."

The emasculation of the Second Amendment through such linguistic manipu-
lation is being attempted by various groups. The National Coalition to
Ban Handguns (NCBH) has been prominent in supporting the handgun ban
in Morton Grove, Illinois. Plantiff's lawyers who claim handguns have
no social utility are suing gun manufacturers whenever a gun is used
in crime. Yet the most startling source of this Orwellian Newspeak is
Don B. Kates, Jr., author of numerous pro-gun articles. Kates recently
has taken to arguing that the Second Amendment "right of *the people*
to ... bear arms" serves "to guarantee the right to carry them
outside the home only in the course of military service." (Ref. 1)

Before Professor Kates filed his brief asking the U.S. Supreme Court
to overturn Morton Grove's handgun ban (the NRA filed a separate brief),
this author and other scholars advised him that there was considerable
evidence that the Founding Fathers intended the words "bear arms" to
mean carry them in general, not necessarily in a militia context. (Ref. 2)
Kates, however, respectfully declined to change his argument that the
right to keep arms is restricted to military service. (Ref. 3)

Ironically, Kates' argument was identical to that of Handgun
Control, Inc. (HCI), which asked the Supreme Court *not* to hear the
Morton Grove case. Although the real issue in Morton Grove is
whether the Second Amendment protects the right to "keep" arms rather
than to bear them, as HCI argued: "The language of the second amendment
suggests that its purpose is limited to protecting organized and effective
state militias. The terms 'arms' and 'bear arms' have always been 
associated with organized military activity." (Ref. 4) The chief authority
HCI cited for this proposition is Noah Webster's famous 1828 dictionary.

Anyone who looks up Webster's definition of "bear," as referenced in
HCI's brief, will be startled to find the very opposite of what HCI
claimed: "to wear; to bear as a mark of authority or distinction; as,
to *bear* a sword, a badge, a name; to *bear* arms in a coat." (Ref. 5)
HCI also refers to the definition of "arms," which again fails to support
its claim: "weapons of offense, or armor for defense and protection
of the body." (Ref. 6)

Consistent with the meaning of "bear arms" as carrying or wearing weapons
on the person or inside one's clothing, Webster defines "pistol" as
"a small fire-arm, or the smallest fire-arm used....Small pistols are
carried in the pocket." (Ref. 7) As to who has the right to bear arms,
Webster defined "the people" as "the commonalty, as distinct of men of
rank." (Ref. 8)

Webster was certainly in a position to know what the Second Amendment
phrase "bear arms" meant. He was a prominent federalist who wrote the
first major pamphlet in support of the Constitution when it was proposed
in 1787. Indeed, Webster states: "Before a standing army can rule, the
people must be disarmed; as they are in almost every Kingdom of
Europe. The supreme power in America cannot enforce unjust laws by the
sword; because the whole body of the people are armed...." (Ref. 9)

When the Morton Grove case was still before the federal Court of Appeals,
unassailable evidence was presented that the respective framers of the
Second and Forteenth Amendments intended that the individual right to
keep arms, including pistols, was protected from infringement by the
federal, state and local governments.The clear intent of the framers,
however, was disregarded by the Court. In its opinion upholding the Morton
Grove gun ban, the Court of Appeals held the framers' intent to be
"irrelevant." (Ref. 10) By contrast, the U.S. Supreme Court has declared
again and again that the Constitution's provisions must be interpeted
according to the intent of the framers. (Ref. 11)

Did the Framers intend the Second Amendment to protect a right to carry
guns for self-protection? Texas A&M Professor Lawrence Cress thinks
not. His mistaken belief that "we know little about the Second Amendment's
reception in the States" has led him to argue that the Founding Fathers
would have been shocked by the idea that citizens could bear firearms
for self-defense. (Ref. 12) Kates bases his similar argument that there
is no right to bear arms outside of militia service on an unpublished 
thesis of a law student. Yet Cress, Kates, et al are well aware (Ref. 13)
that the first state Declaration of Rights to use the term "bear arms"
was that of Pennsylvania in 1776: "That the people have a right to bear
arm *in defense of themselves* and the State." (Ref. 14)

------------------------------------------------------------------------
Italian philosopher Beccaria influenced Founding Father John Adams as
he did Thomas Jefferson. Adams gave his copy of the 1775 English trans-
lation of the Beccaria essay *On Crimes and Punishments* to his son
Thomas B. Adams in 1800. (Photo)

Discovered by this author, this manuscript shows Jefferson copied portions
of Beccaria's essay in Italian. (Photo)

			Translation
			
False is the idea of utility (False ideas of utility) that sacrifices
a thousand real advantages for one imaginary or trifling inconvenience;
that would take fire from men because it burns, and water because one
may drown in it; there has no remedy for evils, except destruction.
The laws that forbid the carrying of arms are laws of such a nature.
They disarm those only who are neither inclined nor determined to
commit crimes. Can it be supposed that those who have the courage to
violate the most sacred laws of humanity, the most important of the
code, will respect the less important and arbitrary ones, which can be
violated with ease and impunity, and which, if strictly obeyed, would
put an end to personal liberty -- so dear to men, so dear to the
enlightened legislator -- and subject innocent persons to all the
vexations that the guilty alone ought to suffer? Such laws only make
things worse for the assaulted and better for the assailant; they serve
rather to encourage than to prevent homicides, for an unarmed man may
be attacked with greater confidence than an armed man. They ought to
designated as laws not preventative but fearful of crimes, produced
by the tumultuous impression of a few isolated facts, and not by
thoughtful consideration of the inconviences and advantage of a universal
decree.
-------------------------------------------------------------------------

That to "bear" arms simply meant to carry them is clear in a game bill
drafted by Thomas Jefferson and proposed by James Madison (draftsman
of the Second Amendment) in the Virginia legislature. That bill would
have fined one who hunted deer out of season, and if within a year
"he should bear a gun out of his inclosed ground, unless whilst performing
military duty," he shall be in violation of his recognizance. The game
violator would have to go back to court for "every such bearing of a
gun" to be bound to his good behavior. (Ref. 15)

To "bear" a gun thus meant to carry it about one's hands or one's person,
as for instance a deer hunter might do. "Bearing arms" is not militia
duty only, for the above addresses the "bearing of a gun" by "any person"
when *not* "performing military duty." Further, while the game bill would
have restricted the carrying of scatterguns and other long guns for hunt-
ing, it would not have prohibited carrying pistols for self-defense. At 
that time, "one species of fire-arms, the pistol, is never called a
gun." (Ref. 16)

Previous game legislation had imposed a penalty of 20 lashes on a 
violator's back (Ref. 17), so that the above was intended to make the
law more humane. Jefferson strongly relied on the penal reform theories
of Cesare Beccaria, whose *Essay on Crime and Punishments* (1764) was
partly responsible for the Eighth Amendment's prohibition on cruel and
unusual punishment. "In America of the revolutionary period, the little
book was more influential than any other single book, its spirit
incorporated in documents such as ... the Bill of Rights." (Ref. 18)
Beccaria's influence on the Second Amendment only recently came to
light.

Jefferson kept a Common Place Book where he copied his favorite passages
from legal writers, such as Beccaria, in the months before drafting
the Declaration of Independence. The Common Place Book "may well be
considered as the source-book and repertory of Jefferson's ideas on
government." (Ref. 19) Among the passages Jefferson copied was Beccaria's
denunciation of laws against the bearing of arms. Beccaria undoubtedly
had pistols in mind when he referred to laws which forbid "di portar
le armi" -- "the carrying of arms" or, in the 1776 edition, "to wear
arms." These laws made things worse for crime victims and better for
their assailants. Since they punished victims rather than criminals,
those laws were relics of a barbaric past which progress would sweep
away along with the rack and screw.

The wisdom of Beccaria was a source of Jefferson's proposed Virginia
Constitution of 1776 which provided: "No freeman shall ever be debarred
the use of arms." (Ref. 20) The Italian philosopher also influenced
John Adams. Adams began his final opening statement in the Boston
Massacre trial in 1770 with a quote from Beccaria, and in the course of
his speech added that "the inhabitants had a right to arm themselves
at that time, for their defence...." (Ref. 21) Adam's own views against
disarming the people were consistent with the following favorite passage
from Beccaria which he copied in his diary: "Every Act of Authority,
of one Man over another for which there is not an absolute Necessity,
is tyrannical." (Ref. 22) Elsewhere, Adams upheld the the right of
"arms in the hands of citizens, to be used at individual discretion,....
in private self-defense...." (Ref. 23)

Bearing arms for personal protection was an unquestioned rights in the
minds of the Founding Fathers, as the following passages reveal.

Before the Revolution, James Iredell, who would be prominent in the
Constitution ratification struggle and later a Justice on the U.S.
Supreme Court, wrote his mother:

Be not afraid of the Pistols you have sent me. They may be necessary
Implements of self Defense tho' I dare say I shall never have Occassion
to use them .... It is a Satisfaction to have the means of Security at
hand if we are in no danger, as I never expect to be. Confide in my
prudence and self-regard for the proper use of them, and you need have
no Apprehension. (Ref. 24)

In 1775, North Carolina's delegation to the Continental Congress, all
of whose members would become prominent state or federal leaders, resolved:
"It is the Right of every *English* Subject to be prepared with Weapons
for his Defense." (Ref. 25) William Henry Drayton, a prominent Revolution-
ary leader and Chief Justice of the South Carolina Supreme Court, according
to his son, "Always had about his person, a dirk and a pair of pocket
pistols; for defense of his life..." (Ref. 26)

In Vermont, Ethan Allen and his friends "never walked out without at
least a case of pistols." (Ref. 27) Lodging with a Quaker on one occassion,
Ethan's brother Ira recalled:

We took our pistols out of our holsters and carried them in with us.
He looked at the pistols saying 'What doth thee do with these things?'
He was answered, 'Nothing amongst our friends,' but we were Green Mountain
Boys, and meant to protect our persons and property...." (Ref. 28)

Just 10 days after James Madison proposed the Bill of Rights to Congress
in 1789, Tench Coxe wrote what became the Second Amendment confirmed
the people "in their right to keep and bear their private arms."
(Ref. 29) James Madison endorsed the widely published article in which
these words appear. (Ref. 30) In later years, Coxe referred to muskets,
rifles, and pistols as "arms," (Ref. 31) and to "the right to own and
keep and use arms and consequently of *self-defense* and of the *public
militia power* ..." (Ref. 32) "His own firearms are the second and better
right hand of every freeman," held Coxe. (Ref. 33)

The Founding Fathers strongly endorsed the right to bear arms for self-
defense. They not only gave it written expression in the Second Amendment,
but also personally exercised this right by possessing pistols and other
firearms. No amounts of linguistic manipulation will ever obscure the
plain and simple recognition in the Second Amendment of "the right of
the people to keep and bear arms."
-----------------------------------------------------------------------
				NOTES

1. D. Kates, Handgun Prohibition and the Original Meaning of the Second
   Amendment, 82 UNIV. MICH. L. REV. 204, 267 (1984), Reprinted by
   Second Amendment Foundation Monograph Series

2. This author had prepared the Brief of Amicus Curiae Illinois State
   Rifle Association in Quilici v. Village of Morton Grove, No. 82-1132,
   U.S. Court of Appeals, Seventh Circuit. This brief solely concerned
   the intent of the framers of the Second and Fourteenth Amendments.

3. Stengel v. Village of Morton Grove, Petition for Writ of Certioria,
   U.S. Supreme Court, No. 82-1834, at 8-9.

4. Brief of Americus Curiae HCI, In Opposition to Certioria, Quilici
   v. Village of Morton Grove, No. 82-1822, at 8-9.

5. N. Webster, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE  (New York
   1828) ("bear" -- definition 3)

6. Id. ("arms" -- definition 1).

7. Id. ("pistol").

8. Id. ("people" -- definition 3).

9. N. Webster, AN EXAMINATION OF THE LEADING PRINCIPLES OF THE FEDERAL
   CONSTITUTION 43 (Philadelphia 1787)

10. Quilici v. Village of Morton Grove, 695 F.2d 261, 270n.8 (7th
    Cir. 1982), cert. denied 104 S. Ct. 194 (1983)

11. E.g., Ex Parte Baine, 121 U.S. 1, 12 (1887); Mallory v. Hogan, 378
    U.S. 1, 5 (1964)

12. L. Cress, An Armed Community, 71 JOUR. OF AM. HY. 22, 38 (June 1984).
    Cress was clearly unaware of the comprhensive evidence to the contrary
    presented in S. Halbrook, To Keep And Bear Their Private Arms: The
    Adoption of the Second Amendment, 1787-1791, 10 NO. KY. L. REV. 13-39 
    (1982)

13. L. Cress, supra note 12, at 29; D. Kates, supra note 1, at 244 n.169.

14. As the law student conceeded, with these words "the phrase of the
    Second Amendment -- 'the right to ... bear arms' appeared." J. Smith,
    The Constitutional Right to Keep And Bear Arms 58 (Harvard Law School 
    1959). Smith's evidence elsewhere contradicts his argument. E.g., 12
    Rich. 2, c.6 (1388) (no servant "shall from henceforth bear any
    buckler, sword, nor dagger, ... but in time of war"). Smith at 9.
    Since colonial militia service was required of males "capable of
    bearing arms," Smith (and Kates) illogically infer that the the words
    "bear arms" only mean militia service. See Kates, supra note 1,
    at 267.

15. Bill for Preservation of Deer (1785), 2 Jefferson, PAPERS 443-44
    (Boyd ed. 1951).

16. N. Webster, supra note 5 ("gun")

17. Act of 1772, 8 Hening, Statutes (Va.) 593.

18. A. Caso, AMERICA'S ITALIAN FOUNDING FATHERS 13 (1975).

19. G. Chinard ed., THE COMMONPLACE BOOK OF THOMAS JEFFERSON 4 (1926).

20. 1 Jefferson, PAPERS at 344.

21. 3 J. Adams, LEGAL PAPERS 242, 248 (1965)

22. 3 J. Adams, DIARY AND AUTOBIOGRAPHY 194 (1961)

23. 3 J. Adams, A DEFENSE OF THE CONSTITUTIONS OF GOVERNMENT OF THE UNITED
    STATES OF AMERICA 475 (London 1787-88)

24. 1 THE PAPERS OF JAMES IREDELL 79 (1976)

25. Caswell, Hooper, and Hewes, To the Committees, North Carolina Gazatte
    (Newburn), July 7, 1775, at 2, col. 3.

26. 1 J. Drayton, MEMOIRS OF THE AMERICAN REVOLUTION 378 (Charleston
    1821).

27. Ira Allen, Autobiography (1799) in J. Wilbur, IRA ALLEN: FOUNDER
    OF VERMOUNT 44 (Boston, 1928).

28. Id. at 40.

29. "A Pennsylvanian," Remarks on the First Part of the Amendments, Federal
    Gazatte, June 18, 1789, at 2, col. 1.

30. 12 Madison, PAPERS 257 (1979).

31. Coxe, To the Public, Democratic Press (Philadelphia), Feb. 2., 1811,
    at 2.

32. "Sidney," To the Friends of the Principles of the Constitution, 
     Democratic Press, Jan. 23, 1823, at 2, col. 2.

33. "Sherman," To the People of the United States, apparently published
    in the Democratic Press or the Philadelphia Sentinel in early 1823,
    PAPERS OF TENCH COXE (microfilm) (Philadelphia: Historical Society
    of Pennsylvania, 1977), Reel 113, at 716.
-------

|    I don't.  In one of the
|founding father's diaries (I think it was Hamilton, but I may be wrong) they
|stated that their intention was to allow for the formation of a civilian
|militia.

You are arguing from a position of incomplete knowledge; many articles
and several books have been published in recent years detailing the
history of the Second Amendment; Clayton Cramer is about ready to
have his book published on it.

The results of this scholarship are indisputable; an _INDIVIDUAL_
"Right to Keep and Bear Arms" was the intention of the Amendment.

------


           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).

|  Don't be so sure that the writers were perfect.  (If you do, you are
|essentially supporting slavery, since _they_ included it) 

The Founding Father's position vis-a-vis the RKBA was grounded in the
best intellectual thinking of the time; it reflects both a knowledge
of the history of armed vs. unarmed peoples and the libertarean spirit
that _individuals_ must live first before anything else, that the
society belongs to the living and not the dead.

Only living individuals get to make love, have sex, eat, make law,
make culture, and indulge in politics. Dead folks don't. The Founding
Fathers recognized this by recognising people's right to arms to defend
their lives against governmental attack (tyranny) and private attack
(crime).

|	I'm not against allowing people to own guns.  I just think we ought to
|apply a little  _common sense_ in how we do it.

Such as?

|  Note: yes, the constitution
|was written before TV came along, but TV has the FCC to keep anyone from
|broadcasting "Debbie Does Dallas" on the teeny bopper stations.  TV and radio
|stations need liscenses, but why not gun owners?

Faulty analogy. The proper analogy is why don't we license NEWSPAPERS
but we should license gun owners?

Your analogy fails because electromagnetic radiation penetrates
everywhere and thus may interfere with others attempting to
broadcast as well. Newspapers don't radiate, and neither do gun
owners.

|  Tell me a rational reason
|(not 'because the constitution says so') why we can't have a test for gun
|ownership? or even _handgun_ ownership?
   
(A) Because like literacy tests given to blacks to prevent voting,
    gun tests for ownership allow the government to prevent the
    exercise of that right.

(B) Fees for such tests may be set at levels denying gun ownership
    rights to gun owners. True examples are concealed weapon permits
    that cost in the $100s of dollars.

(C) Tell us what is _GAINED_ from these tests. The past history of these
    manditory tests appear to be that nothing is gained except to
    acclimate gun owners to ever more regulations without anything
    more than a wimper.

(D) British gun owners tell a sad tale of woe from this acquiesence:

---------------------------------------------------------------------
  This is in response to recent proposals for a mandatory
  education program.
 
  These are the excerpts from the article by Greenwood that I promised
  a while back.
  I got it from Don B. Kates, "Restricting Handguns: the Liberal
  Skeptics Speak Out".
------------------------------------------------------------------------
  Greenwood is a Superintendent in the West Yorkshire Metropolitan
  Police and is Deputy Commander of a large territorial division
  based on the town of Halifax.
  He has headed a firearms training department....
  In 1970 he took a leave of ablsence to become a Fellow at
  Cambridge University Institute of Criminology.
  There he conducted the only in-depth study of British
  firearms controls that has ever been done.

------------------------------------------------------------------------
This is from his article in the British "Shooting Times and Country
Magazine" August,1978. He was answering an earlier article in the
same magazine by Mr G. Holderness.
------------------------------------------------------------------------

 Mr Holderness advocates the imposition of a shooting test in addition
 to (and not as an alternative to) the existing system of police
 enquiries. ... No doubt the writer had the best of intentions,
 wishing to support the idea of "law and order" and the police
 whilst at the same time seeking to improve the lot and the
 standing of the shooting public. But good intentions alone are
 adequate only for paving the road to hell. The fact is that
 the entire article is based on illogicalities and false assumptions.

....[skip a lot]

 It seems that the main reason for advocating a shooting test
 is to demonstrate a sense of responsibility in the hope that
 the authorities will reciprocate by not imposing other restrictions
 which might be even more irksome. This somewhat odd bargain seems
 to be continually sought by some members of the shooting fraternity.
 Reference to recent events will show that those in authority want no
 such compromise. They are concerned to reduce a number of shotguns
 in private hands and many say so openly. They move one step at
 a time towards a goal which in some cases involves a virtual
 ban on the private ownership of guns. Any concessions made by the
 shooting community or their representatives and each of them
 represents another step forward towards impossible restrictions
 or a total ban. There are not reverse concessions. Never since
 controls began has there been any lifting of restrictions
 in favour of the sportsman.

 The last paragraph of Mr. Holderness's article reflects the ultimate
 nonesence of the sort of thinking which somehow has infected a segment
 of the shooting public:

        Unnecessary and unreasonable restrictions on the possession
     and use of arms inhibit and threaten the sport itself and are
     rightly to be resisted. But do we really want the opposite
     extreme: a society in which the aquisition of firearms is
     rendered easy; where, as in America, petty crime can often
     result in violent death; where human corpses in the street are
     shudderingly familiar; where, in Shakespear's words,
     "Man's life is as cheap as beast's."

Well, now, there is strong passionate stuff -- a frightening prospect
eloquently described -- but the total and absolute rubbish!
One wonders how old Mr Holderness might be and how good his memory.
Perhaps he cannot recall the period before 1968 when shotguns
were totally uncontrolled in Britain. Every gun shop, every
ironmonger and most second-hand shops had guns openly on display
with no security arrangements. Anyone could simply walk in and buy
one without let or hindrance. He did not have to go to the police
seeking permission, he did not have to ask anyone or tell anyone,
he just bought one, two or a hundred if he so wished. ...
Now let us think about this carefully. We are not talking about
another world or another continent; we are talking about this
same Britain. We are not talking about another country or another
time, we are speaking of the last decade, within the memory of most
people who are now shooting. This was a time and place when,
to use Mr. Holderness's own words, "the aquisition of firearms
was rendered easy" as it had been for all the time previously 
in this country. Where then were those petty crimes which resulted
in violent deaths? Where did we experience the shuddering familiarity
of corpses in the Streets of England? Perhaps Mr. Holderness has
not read the many studies which establish that there is no
correlation between the numbers of firearms in a community or
the degree of control over them and the rate of armed crime?
...
The unrestricted sales of shotguns in this country created
no problem, and their subsequent control produced no discernible
effect in the armed crime rate.

....[skip a lot]

Shotgun controls were quite literally sneaked through Parliament
wrapped in a controversial Criminal Justice Bill. ...
The shooting organizaitons failed miserably to their duty to their
members; they were totally unprepared and totally useless when action
was needed. Now we see representatives of shooting organizations
and apparently responsible shooting men proposing more and more
without restrictions without stopping to consider the problem
to which the legislation is supposed to be addressed,
without thought of the masses of hard evidence already accumulated
for them.

One wonders what it is about present day Britain which compells people
to seek to control and regulate evey aspect of life.
Whatever it is shooters are not immune and seem to be their worst enemies.
It is sad to see these people rushing like lemmings over a cliff into
a mass of controls and bureaucracy which will eventually destroy
them and their sport. ... Freedoms lost are not easily regained.
Bureaucracy will not give up its stronghold once established.
Thre is already too much law, too much control and too much
bureacracy directed only at the legitimate shooter.
The evidence shows quite clearly that control have had, and will have,
no significant effect on the rate of armed crime. A cardinal
rule of bureacracy is that it is better to extend an error than
to admit a mistake.
For the future of the sport we should insure that, though the Home
Office can be relied upon to follow this rule, the shooting
community will not.
-----------------------------------------------------------------------

So, it cannot happen in the US?
Sure not, let us ask for a mandatory training program.
Maybe it will appease the anti-gunners, and they will not
want any more.
----

Xref: sparky talk.politics.misc:16917 alt.individualism:2273