From: cramer@optilink.UUCP (Clayton Cramer)
Newsgroups: soc.history
Subject: Re: [ACLU] A History of the Bill of Rights
Date: 17 Nov 92 00:07:21 GMT
Organization: Optilink Corporation, Petaluma, CA

In article <1992Nov14.102316.22029@newstand.syr.edu>, greeny@top.cis.syr.edu (J. S. Greenfield) writes:
> In article <1992Nov13.032233.27045@pony.Ingres.COM> garrett@Ingres.COM (WE'RE ONLY HERE BECAUSE WE'RE NOT ALL HERE) writes:
> >	The fact that the ACLU refuses to back the 2nd Amendment
> >to its original intent is absolutely appaling. 
> 
> This is a rather tenuous statement for a few reasons.  First, it's very hard
> to *know* the "original intent."  There seem to be some pretty strong
> arguments on both sides as to what the "original intent" was--and it seems
> highly likely that that the intent was perceived differently by various
> people involved in the drafting and passing of the bill of rights.

Really?  How about looking at the various state requests for the
Second Amendment.  Pennsylvania:

              7. That  the people  have a  right to bear arms for the
              defence of  themselves and  their  own  state,  or  the
              United States,  or for the purpose of killing game; and
              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; and as standing armies
              in the  time of  peace are  dangerous to  liberty, they
              ought not to be kept up; and that the military shall be
              kept under  strict subordination  to and be governed by
              the civil powers.20
              20 "The Address and Reasons of Dissent of the Minority of
            the Convention of the State of Pennsylvania to their
            Constitutents", in Kaminski & Saladino, 3:19.

New Hampshire:

              Congress shall  never disarm any Citizen unless such as
              are or have been in Actual Rebellion.37
              37 Bickford & Veit, 4:14-15.

Virginia:

              Seventeenth, That  the people  have a right to keep and
              bear arms;  that a  well regulated  Militia composed of
              the body  of the  people trained to arms in the proper,
              natural and  safe  defence  of  a  free  State.    That
              standing armies  in time  of  peace  are  dangerous  to
              liberty, and  therefore ought  to be avoided, as far as
              the circumstances  and protection of the Community will
              admit; and  that in  all cases  the military  shall  be
              under strict subordination to and governed by the Civil
              power.58
              58 Bickford & Veit, 4:17.  This provision also appears in
            Levin, 114, but altered in a rather significant manner.  As
            it appears in Levin, it starts out, "That a well-regulated
            militia, composed of the body of the people..."  The
            capitalization of "That," without the use of brackets to
            show that the case has been changed, gives the reader the
            understanding that it is a free-standing clause, rather than
            showing him that something rather important -- "That the
            people have a right to keep and bear arms;" -- has been
            elided.  Since this would have greatly undermined Levin's
            case for the constitutionality of laws prohibiting handgun
            ownership, and he appears to be quoting from the same source
            as this work, the question might be raised: "Do the ends
            justify the means?"

New York:

              That the  People have  a right  to keep  and bear Arms;
              that a  well regulated  Militia, including  the body of
              the People  capable of  bearing Arms,  is  the  proper,
              natural and safe defence of a free State;

              That the  Militia should not be subject to Martial Law,
              except in time of War, Rebellion or Insurrection.[61]
              61 Bickford & Veit, 4:20.

How about the many debates in which the ability of the people to
possess arms was stated as the mechanism by which the government
would be kept in check?  Here's just one of many examples, this
one from the Massachusetts ratifying convention:

              a chimerical  idea to  suppose that a country like this
              could ever  be enslaved.   How  is  an  army  for  that
              purpose to  be obtained  from the freemen of the United
              States?   They certainly,  said he,  will know  to what
              object it  is to be applied.  Is it possible, he asked,
              that an  army  could  be  raised  for  the  purpose  of
              enslaving themselves and their brethren? or, if raised,
              whether they could subdue a nation of freemen, who know
              how to  prize liberty,  and  who  have  arms  in  their
              hands?24
              24 Elliot, 1:97.

Why don't we ask the member of the House that wrote the rough draft
of the Second Amendment, James Madison?

              Other  evidence   against  Cress'  position  is  found  in
            Madison's notes for the speech in support of the amendments,
            "They relate  1st. to  private rights--"93   In  consultation
            with Edmund  Pendleton, "amendments may be employed to quiet
            the fears  of many  by supplying  those further  guards  for
            private rights."94   That Madison's concern were not limited
            to a  President with  monarchial ambitions,  the  fear  most
            expressed by  Patrick .i.Henry, Patrick;, 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

              ___________


            ____________________
              93 Hobson & Rutland, 12:193.
              94 Cress & Shalhope, "The Second Amendment and the Right
            to Bear Arms: An Exchange", 589.



                                        -93-

            FOR THE DEFENSE OF THEMSELVES AND THE STATE


              ought to  point to  greatest danger  which in  Rep.  is
              Prerogative of majority--95

              .i.Madison, James;'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, showed this unambiguously:

              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.96

              .i.Madison, James;This  speech provides  further  evidence
            that  he  recognized  these  as  protections  of  individual
            rights, not  exclusively states'  rights, or some mixture of
            both:

              It will  be a  desirable thing  to extinguish  from the
              bosom  of   every   member   of   the   community   any
              apprehensions,  that   there  are   those   among   his
              countrymen who  wish to deprive them of the liberty for
              which they valiantly fought and honorably died.97

              To argue  that .i.Madison,  James; considered  the Bill of
            Rights as  protection of  state prerogatives, not individual
            rights, is  a position  wholly unsupported  by, and contrary
            to, Madison's notes and speeches.

The Senate did debate adding "for the common defense" to the latter
half of the Second Amendment, but voted not to do so.

> J. S. Greenfield                                         greeny@top.cis.syr.edu
-- 
Clayton E. Cramer {uunet,pyramid}!optilink!cramer  My opinions, all mine!
"Foxes prefer rabbits with short claws." -- Nadja Adolf