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 18:10:51 GMT
Followup-To: alt.politics.clinton,talk.politics.guns


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

|RKBA is *not* guaranteed to the people by virtue of the second
|amendment.  Nowhere is it stated that "the right of the People to keep
|and bear arms shall be infringed".  The key phrase here is "the
|People".  The second amendment was added only to prevent the new
|federal government from disarming the state militias and thereby
|threatening their sovereignty.  It has only been through Constitutional
|interpretation that the second amendment has been applied to the people
|*and* at the state level and that interpretation would not have been
|possible were it not for the 14th amendment.

From what literature did _THAT_ intriguing exposition of the 
applicability of the 2nd Amendment to the masses did you synthesis
that, uh, most unusual assertion?

=========================================================================
------------------------------------------------------------------------
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.
Newsgroups: alt.politics.clinton,alt.politics.bush,alt.politics.elections