The second and a Collective right??

[JAMES1776]

Here begins a very long post on the issue of the collective v individual right. I plan to post this in a large series of posts on this thread. Comment as you will:


PART ONE

The Founders, the Militia, and the Collective Right
<O:p
“A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.”
<O:p
It seems a simple idea. People have a right to own and keep arms just as they have a right to assemble or to speak. Sigh. Too simple an idea for some. Their view is best expressed here:
<O:p
quote: <O:p




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“It is abundantly clear both from discussions of this amendment contemporaneous with its proposal and adoption and those of learned writers since that this amendment, unlike those providing protection of free speech and the freedom of religion, was not adapted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachment by the federal power…”(U.S. v Tott 1942) <O:p





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The right as described in this decision must not be individual and must only exist to defend the states against the federal authority. Is this view correct? Did the founders hold learned discussions on this right that supports this <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com /><st1:State w:st=free State</st1:State></ST1 /><st1:Street w:st=<st1:address w:st="on">Appeals Court</st1:address></st1:Street> decision? Are the “collective rights” advocates right, or are they simply making it up?
<O:p
The idea of a “collective right” as described seems to rest on three legs. First, that the founding fathers believed in a right that belonged to the states alone, discussed it, and left us a record of their discussions to consider as that court decision says. Next, the Militia Clause in the Second Amendment must change the meaning of “the people” found in the rest of the Bill of Rights into something unique in the Second Amendment. Lastly, there must be a long and specific record of court cases going back to the Constitution that supports this collective view.
<O:p
I intend to cover the three topics in some detail. I will address the views of the founders on gun rights. I will present the founders’, Congress’, and the Court’s views on the Militia, and I will discuss how the Courts by themselves, created the idea of a “collective right” decades after the discussions of the Constitution were complete and the founders dead and buried. I will tie these arguments together and also discuss the vast flaw in the “collective right” as it is used by today’s politicians and courts.
<O:p
quote: <O:p




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“On every question of construction {of the Constitution} let us carry ourselves back to the time when the Constitution was adapted, recollect the spirit manifested in the debates, and instead of trying what meaning might be squeezed out of the text, or intended against it, conform to the probable one in which it was passed” – Thomas Jefferson, letter to Judge Johnson, June 12 1823 <O:p




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Just what did the founding fathers have to say about the Second Amendment? The first thing to know is that the founders barely discussed the gun rights at all at the Constitutional Convention. All discussion was limited to Militias and who would control them. The term “Militia” is never defined. I contend that is because each and every person at the convention knew what the militia was. Just as Congress today would never write of “The Marine Corps, that armed portion of the Navy with responsibilities…”, the founders did not define the Militia at the time. I will show how this is important a bit later. <O:p</O:p

The only substantive discussion of the issue at the Constitutional Convention came about when Mr. Mason brought up the idea of “regulating” the Militia on 18 August 1787. According to Mr. Madison’s notes, Mr. Mason “hoped there would be no standing army in time of peace…The Militia ought therefore to be more effectively prepared for the public defense”. “Regulation” meant control, management, uniformity, discipline and effectiveness. All the discussion at the Convention was about these ideas with some members suggesting the entire structure be moved to the federal government and others resisting the idea. Mr. Mason proposed the possibility of a “select” militia, which was to be a part of the existing Militia system that would be controlled by the Federal Government, but the idea was defeated. Mr. Dickenson suggested a portion of the Militia be rotated through federal control over time to “discipline the whole militia”. Mr. Mason backed off his idea of a “select” militia and proposed instead “to make laws for regulating and disciplining the militia…” in the Congress. General Pinkney, who had scant faith in the militia concept, argued for a real military force. He saw the new <st1:country-region w:st="on"><ST1:pUnited States</st1:country-region> being created as an “experiment without it”. They then discussed the “uniformity” of the militia after General Pinkney mentioned a case during the war in which such a lack of uniformity in the militias of the several states had “produced the most serious mischief’s”. The issue became so contentious that the entire idea was referred to committee and they adjourned for the day. <O:p

On 21 August this “Grand Committee” reported. <O:p

quote: <O:p





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“…the Legislature shall have the power to…make laws for organizing arming and disciplining the Militia, and for governing such part of them as may be employed in service of the U.S. reserving to the states respectively, the appointment of officers and the authority of training the Militia according to the discipline prescribed by the U. States.” <O:p></O:p>





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During the discussion of the proposal, Mr. King “by way of explanation”, said that by ‘organizing’ the committee meant proportioning the officers & men-by ‘arming’, specify the kind size and caliber of arms-& by ‘disciplining’ prescribing the manual exercise evolutions”. <st1:City w:st="on"><ST1:place w:st="on">Madison</ST1:place></st1:City> observed “arming” did not extend to providing the arms and “disciplining” to penalties for enforcing the discipline. Mr. King disagreed. <O:p></O:p>

After a good bit of arguing, Mr. Madison advised “The primary object is to secure effectual discipline of the Militia. This will no more be done if left to the states separately than the requisitions have been hitherto paid by them. The States neglect their Militia now, and the more they are consolidated into one nation, the less each will rely on its own interior provisions for its safety & the less prepare its Militia for that purpose…the Discipline of the Militia is evidently a National concern and ought to be provided for in the National Constitution.” Mr. Randolf supported this view. <O:p></O:p>

[JAMES1776]

This is what finally passed “To make laws for organizing & disciplining the Militia and for governing such part of them as may be employed in the service of the U.S.”

Not a lot there on anyone’s right to keep or bear arms, but a good bit about the feelings of the founders on the Militia. In fact, the issue of the people bearing arms only arose during the argument over a Bill of Rights after the Constitutional Convention.
<O:p
Does a detailed and contentious discussion of who was to organize, arm, and discipline the Militia mean that the founders had in mind anything like the Militia described by today’s “Collective Rights” advocates? Did those who advocated strict state control win the discussion? Did the founders ever sit down and discuss the distinction between individuals and states described in the legal decision mentioned. To understand that you have to know what the founders meant when they discussed the Second Amendment itself in arguments over a Bill of Rights and how they viewed what constituted the Militia.
<O:p
How did we end up with a Bill of Rights and what did the founders say about the right to bear arms in proposing it? At the very end of the Constitutional Convention on 12 September, Mr. Mason proposed a bill of rights be prepared. This did not go over well at all as those present assumed the various States Declarations of Rights would suffice. The idea was voted down, and the convention adjourned.
<O:p
The founders in favor of the new Constitution, the Federalists, supported a strong central government, and were against any Bill of Rights. Those opposed, the anti Federalists, demanded a bill protecting the people’s rights. The Constitution moved to the States for ratification and the argument began with both sides conducting vigorous writing and speaking campaigns. The problem for the Federalists was, while they were in favor of the Constitution and against a Bill of Rights, the people were only for the one with the other. Jefferson, Ambassador to <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com /><st1:State w:st=free State</st1:State></ST1 /><st1:country-region w:st=<?xml:namespace prefix = st1 ns = " /><st1:country-region w:st="on">France</st1:country-region> in <st1:City w:st="on">Paris</st1:City>, wrote strongly in favor of a Bill of Rights. “Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, & what no just government should refuse…” (20 December, 1787) and again in perhaps the strongest argument for a Bill in a letter Jefferson wrote on 15 March, 1789 where he emphasized the check a bill of rights gives to the courts to protect the people against laws passed according to the procedures of the Constitution, but that restricted the absolute rights of the people.
<O:p
Bottom line, the people would not let the new Constitution pass without a bill of rights. Ever the pragmatist, Madison came out in favor and the opposition fell apart, the Constitution passed and <st1:City w:st="on">Madison</st1:City> urged a Bill of Rights in the first session of Congress. The issue was farmed off to committee. It was a major fight and some basic decisions made affect our gun rights to this day. For example, the idea that this Bill of Rights would only apply to the Federal Government was raised here. It was not until the 14th Amendment, almost 100 years later, that the States began to be forced to recognize these basic limits on government’s power. Note that the Bill of Rights was rejected by <st1:State w:st="on">Connecticut</st1:State>, <st1:country-region w:st="on">Georgia</st1:country-region>, and <st1:State w:st="on">Massachusett</st1:State>. In fact, <st1:State w:st="on">Massachusetts</st1:State> didn’t ratify it until 1939, which might go a long way to explain why they seem to get it wrong so often.
<O:p
Here is <st1:City w:st="on"><ST1:pMadison</st1:City>’s original proposal for the Second Amendment: <O:p

quote: <O:p




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“The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated Militia being the best security of a free country: But no person religiously scrupulous of bearing arms, shall be compelled to render military service in person” <O:p




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Just what did the founders actually write on the second amendment while it was being debated? <O:p

Madison, who wrote the amendment, wrote that his amendments on the press and arms “relate first to private rights.”

<O:pRichard Henry Lee, wrote <O:p

quote: <O:p





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“to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.” (Additional letters from the Federal Farmer) <O:p






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Noah Webster wrote <O:p

quote: <O:p





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“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in <ST1:p
Europe. The supreme power in <st1:country-region w:st="on">America</st1:country-region> cannot enforce unjust laws by the sword because the whole body of the people are armed” (Pamphlets on the Constitution of the Unites States) <O:p




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At the <st1:State w:st="on">Virginia</st1:State> ratifying Convention, as a result of an argument by Patrick Henry, the following proposed declaration of individual rights was raised

quote: <O:p




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“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, is the natural, and safe defense of a <st1:State w:st="on"><ST1:pfree state</ST1:place</st1:State>…” <O:p></O:p>





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Patrick Henry from the Ratifying Convention
<O:p
quote: <O:p




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“The great object is that every man be armed…Everyone who is able may have a gun.” <O:p




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Samuel Adams at the <st1:State w:st="on"><ST1:pMassachusetts</st1:State> Ratification Convention <O:p

[JAMES1776]

quote:


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“That the said Constitution shall never be considered to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms” <O:p




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At the New Hampshire ratifying convention the following amendment was proposed “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion”
<O:p
Trenche Coxe wrote <O:p

quote: <O:p





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“As civil rulers, not having their duty to the people, duly before them, may attempt to tyrannize, and as the military forces which shall be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article (the 2nd amendment) in their right to keep and bear their private arms”
<O:p



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As you can see, there is a lot of actual written record on how the founders viewed gun rights. They clearly viewed these rights as an individual rights. In fact, the easiest way to counter any argument that says otherwise is simply to demand the person making the argument come up with quotes from the founders that support their view. Such references simply do not exist <O:p

I asked the question “Did the founders ever sit down and discuss the distinction between individuals and states described in the legal decision mentioned”? The answer seems to be both yes and no. They did not hold such discussions at the constitutional convention but they did indeed often discuss individual rights when discussing the Bill or Rights. The founders writing about and voting for this amendment were clear in considering the right an individual right. I have been unable to find any argument from any founder that carried the day in which a right to own and bear arms is in any way limited to the states themselves. <O:p

That brings me to the second pillar of the “collective right”, the Militia clause. The argument is that this clause clearly means that the right to arms only applies to the states as the right applies to the Militia and the Militia is a state organization. I asked “Did those who advocated strict state control win the discussion?” The actual result was a compromise in which both the states and the federal governments had a measure of power over the Militia. In addition, this argument for a “collective right” also ignores the composition of the Militia. <O:p

Remember, the founders never defined the “Militia” at the Constitutional Convention. They knew what the militia was and were not in any way confused over the concept as are some modern jurists. When discussing ratification, however, the founders wrote extensively on exactly this issue. <O:p

<?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com /><st1:State w:st=<ST1 /><st1:State w:st=<ST1:p</st1:State>
<st1:State w:st="on">Rhode Island</st1:State> proposed an amendment which read in part <O:p

quote: <O:p




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“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 defense of a free state…” <O:p





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Richard Henry Lee, of <st1:State w:st="on">Virginia</ST1:pl</st1:State> wrote
<O:p
quote: <O:p





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"A militia when properly formed are in fact the people themselves . . . and include all men capable of bearing arms. . . To preserve liberty it is essential that the whole body of people always possess arms... The mind that aims at a select militia, must be influenced by a truly anti-republican principle." (Additional Letters From The Federal Farmer, 1788) <O:p





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Tenche Coxe, of <st1:State w:st="on">Pennsylvania</st1:State> wrote
<O:p
quote: <O:p




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"The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to over-awe them." (An American Citizen, Oct. 21, 1787) and “Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. Their swords and every other terrible implement of the soldier, are the birthright of an American . . . . The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people." (The <st1:State w:st="on"><ST1:pPennsylvania</st1:State> Gazette, Feb. 20, 1788) <O:p





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The vast majority of actual written record from the period defines the Militia as a body of the people. Congress defined the Militia in the Militia Act of 1792 as consisting of
<O:p
quote: <O:p




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“each and every free able-bodied white male citizen of the respective states resident therein, who is or shall be of age of 18 years, and under the age of 45 years” In addition, it was the responsibility of “every citizen so enrolled (in the militia) and notified, shall, within six months thereafter, provide himself with a good musket…” <O:p


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It is clear that to Congress, the Militia consisted of all the people capable of bearing arms.
<O:p
What did the Militia mean to the various states?
<O:p
<st1:State w:st="on"><ST1:pRhode Island</st1:State> wrote in their state Constitution
<O:p
quote: <O:p




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“That the people have a right to keep and bear arms, that a well regulated militia, including the body of people capable of bearing arms…” <O:p




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<st1:State w:st="on"><ST1:pNew York</st1:State>’s Constitution read
<O:p
quote: <O:p


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“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….” <O:p




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Virginias Constitution read
<O:p
quote: <O:p




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“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 is the natural and safe defense of a <st1:State w:st="on">free state</ST1:place</st1:State>…” <O:p




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<st1:State w:st="on"><ST1:pNorth Carolina'</st1:State>s is almost identical. It seems the writers of the various state constitutions had no confusion over who constituted the Militia, the People.
<O:p
If, as I think I have proven, the Militia consisted of the broad body of all the people capable of bearing arms and as this Militia was expected to provide their own arms as was clearly the case, then the “Militia” of the Second Amendment was the self same “People” listed in the Second Amendment as having a right that “shall not be infringed”. When the founders spoke of controlling the Militia, they were speaking of controlling the entire armed body of the citizenry for the purpose of uniformity and effectiveness and they viewed this right to arms as fundamental. Simply stating that a purpose, or even the primary purpose of this Militia, was to protect the states from federal encroachments, does not in any way change the very nature of the institution being discussed, the body of the people with a fundamental right to be armed.
<O:p
That brings me to the last leg of the stool, the courts. Here is where the most mischief has been done. Early Jurists did not have much confusion as to the meaning of the amendment.

<O:pWilliam Rawle, founder of the longest law office in continuous practice wrote in 1829
<O:p
quote: <O:p





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“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 congress a power to disarm the people.” <O:p





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Justice Joseph Story wrote in 1833 <O:p

[JAMES1776]

quote:
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“The right of the citizens to keep, and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against usurpation and arbitrary powers of rulers…” <O:p
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Thomas Cooley wrote in 1880
<O:p
quote: <O:p


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“The right is General. – It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent….The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of the law for the purpose” (The General Principles of Constitutional Law in the United States of America) <O:p
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One state decision that did seem to support a collective right was Aymette v State in 1840. In this ruling a <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com /><st1:State w:st=free State</st1:State></ST1 /><st1:country-region w:st=<st1 /><st1:State w:st=Tennessee </st1:State>man was convicted of wearing a bowie knife concealed. He used his State Constitution as a defense and the court ruled in part <O:p

quote: <O:p
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“But, with us, every free white man is of suitable condition, and, therefore, every free white man may keep and bear arms. But to keep and bear arms for what? If the history of the subject had left in doubt the object for which the right is secured, the words that are employed must completely remove that doubt. It is declared that they may keep and bear arms for their common defense. The word "common,” here used, means, according to Webster: 1. Belonging equally to more than one, or to many indefinitely. 2. Belonging to the public.3. General. 4. Universal. 5. Public. The object, then, for which the right of keeping, and bearing arms is secured is the of the, public. The free white men may keep arms to protect the public liberty, to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution. The words "bear arms," too, have reference to their military use, and were not employed to mean wearing them about the person as part of the dress. As the object for which the right to keep and bear arms is secured is of general and public nature, to be exercised by the people in a body, for their common defense, so the arms the right to keep which is secured are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment.” <O:p
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The Court further defined this “public right” as in some manner contingent on the type of arm being considered “These weapons would be useless in war. They could not be employed advantageously in the common defense of the citizens. The right to keep and bear them is not, therefore, secured by the constitution.”

<O:pAnother section of the decision contains a caveat that the modern “collective rights” crowd seems to forget
<O:p
quote:
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“The citizens have the unqualified right to keep the weapon, it being of the character before described as being intended by this provision. But the right to bear arms is not of that unqualified character”. <O:p
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The Court is saying that the citizens could own any arm suitable for the common defense, they just could not carry it if prohibited by the legislature. They also note that other courts in other states had come to different conclusions on this specific issue. They even note other conflicting law in their own state. In all fairness, at the state level, in at least one case, a collective right was stated in 1840. They did not refer to any record of the words of the founder either at the state or federal level and based their decision almost entirely on English law prior to the Constitution and their own interpretation of their State Constitution with only passing mention of the Federal right.

<O:pThings became confused by the Civil War. The North, in winning the war, freed the slaves through the 13th Amendment. The Southern States retaliated with a series of “Black Laws” with the intention of recognizing the black population as free but with few rights. This time the North reacted with the 14th Amendment applying the Bill of Rights to the States and in so doing, granted blacks the full rights of citizenship. All this took time and treasure. The North grew tired of the cost of controlling the South and all the constant squabbling over race.
<O:p
The first applicable Supreme Court case after the 14th Amendment was U.S. v Cruikshank in 1870. In this case a group of Louisiana yahoos were accused of banding together to prevent a number of black citizens from assembling, voting and arming to defend themselves against the white supremacists of the time, as well as other charges. The court ruling here was in its own way every bit as racist as Dred Scott. They ruled, among other things, that the black citizens did not have a Federal Constitutional right to assemble. They ruled that the State had the responsibility to allow any assembly under state laws, if applicable. Having dismissed a federal role in lawful assembly, the court went on to rule that there was no Federal role in protecting the citizens, placing that job with the states as well. They ruled on arms,
<O:p
quote: <O:p



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“…the right there specified is that of ‘bearing arms for a lawful purpose’. This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but as has been seen, means no more than it shall not be infringed by Congress.” <O:p



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In short, the court decided that basic Constitutional rights of assembly, protection from personal attack, and bearing arms, applied to the states by the 14th amendment, did not really apply. The result was to allow the states to disarm blacks and for the Klan to terrorize them and keep them from voting. A fine decision, this.
<O:p
The next bit of Supreme Court wackiness occurred in Presser v <st1:State w:st="on"><ST1:pIllinois</st1:State> in 1886. In this case the State of <st1:State w:st="on">Illinois</st1:State> created a State National Guard which was in no way attached to the <st1:country-region w:st="on"><ST1:pUnited States</st1:country-region> as is the modern National Guard. The State law forbade any bodies of men except from this state guard from gathering together as a

[JAMES1776]

military unit or drilling. Presser organized a separate patriotic guard, and was promptly fined. His argument was that the Second Amendment provided for keeping and bearing arms and further the Constitution protected freedom of assembly. They referred to the 14th amendment as applying these rights to the states. They also argued that the <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com /><st1:State w:st=free State</st1:State></ST1 /><st1:country-region w:st=<st1 /><st1:State w:st=Illinois</st1:State> act was contrary to Federal Militia Acts of 1792 and 1795 as it was not established with the permission of the Federal Government and was not subject to call up by the President. As this militia was separate from the Militia established under the acts, the citizens of the state were free to drill as members of this Federal Militia.

The Supreme Court, referencing the racist Cruikshank decision, and ignoring the 14th Amendment, ruled that the state could regulate the right of assembly of its citizens as the constitutional protections only applied to the Federal government. On the Second Amendment they ruled
<O:p
quote: <O:p
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“It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the Constitutional provision in the question (of the new Illinois Militia) out of view, prohibit people from keeping and bearing arms…” <O:p


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They ruled the people have a constitutional right to keep and bear arms as members of the U.S. Militia but the state could prohibit this Militia from drilling. <O:p

Yes, I know it sound ridiculous, but remember, a recent modern court changed “Congress shall make no law” into something like “Congress can do whatever it desires” when freedom of speech is involved.

<O:pThis takes us to U. S. v Miller in 1939. Here a man was convicted of violating the new National Firearms Act in that he owned a forbidden weapon, a shotgun with a length of under 18 inches. He claimed to be protected by the Second Amendment. The opinion in Miller again reminded that the Militia “comprised all males physically capable of acting in concert for the common defense” and further “that ordinarily when called in service these men were expected to appear bearing arms supplied by them and of the kind in common use at the time”.
<O:p
Wow! A Supreme Court decision that actually seems to understand what the Constitution says and what the founders envisioned. Sigh…then the Court muddies the decision. They further ruled that

<O:pquote: <O:p



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“In the absence of any evidence tending to show that the possession or use of a shotgun having a barrel of less than eighteen inches in length at this time has some reasonable relationship to the preservation of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument” <O:p
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Even in Miller, the Courts have uniformly ruled that the Militia written of in the Constitution is the body of the people. They also did not rule this body of the people was under the regulation of the States for the fundamental right to keep and bear arms. All Miller ruled was that some types of arms might be prohibited as they do not serve a Militia purpose.
<O:p
I have written in detail on the thinking about the individual right to bear arms. This individual right has been spoken of by the founders, written into law in State Constitutions, and been enacted into federal law as the Militia Act. I have demonstrated that the people spoken of in the amendment are the same people who constituted the militia, and that neither of these ideas was in any way changed depending on who controlled this Militia. I have produced 3 Supreme Court decisions that very clearly advise that individuals at the very least have a right to own arms that a state cannot remove. I have also noted that the courts have allowed government to restrict this individual right as to what is carried (it must be suitable to a militia to have a constitutional guarantee) and as to how such arms are carried.
<O:p
If this is all true, where, oh where, did the idea of a “collective right” develop? I demonstrated at least one state decision; Aynette v State in 1840 did suggest a collective right, at least in <st1:State w:st="on"><ST1:pTennessee</st1:State>. The question is, how did state law based not on the Constitution of the United States but on the State Constitution of Tennessee become Federal law and does it have a basis in the Constitution as drafted and envisioned by the founders? Just where the “collective right” came from is the topic of my next section.
<O:p
PART TWO <O:p

The <st1:Street w:st="on"><st1:address w:st="on">Imperial Court</st1:address></st1:Street>, Rewriting the Constitution. <O:p

Just where did a “collective right” come from? I have demonstrated that owning, carrying, or bearing arms was not discussed at the Constitutional Convention. I have shown that the discussions around the Second Amendment during the ratification of the Bill of Rights specifically supported an individual right to arms. You have to ignore what constitutes the Militia, the people, and you have to assume simply placing the Militia under state management on occasion was proof of such an intent to a collective right. If this was the case, one would think some actual opinions from the founders on the idea would exist. They don’t.
<O:p
To see where a “collective right” came from, I decided to find the first Federal Appeals Court case to claim such a ‘right’ and see if its references go to the Constitution. This first case appears to be the Third Circuit Court of Appeals in <st1:country-region w:st="on"><ST1:pU.S.</st1:country-region> v Tott in 1942.
<O:p
In this case a man previously convicted of a violent crime was found in possession of a gun, which was illegal under the Federal Firearms Act. One of his many defenses was that the possession of the gun was protected under the Second Amendment.
<O:p
The Court rejected this bit of his defense saying
<O:p
quote: <O:p


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[JAMES1776]

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“It is abundantly clear both from the discussions of this amendment contemporaneous with its proposal and adoption and those of learned writers since that this amendment, unlike those providing protection of free speech and freedom of religion, was not adapted with individual rights in mind, but as a protection for the States in the maintenance of their Militia organizations and against possible encroachments by the federal power.”



<HR align=center width="100%" SIZE=2>


The decision references the Miller decision (discussed in part one) advising that the weapon in question in Miller had no demonstrated relationship to a weapon suitable to a militia and therefore was not protected. They go on to say “The appellant here having failed to show such a relationship, the same thing could be said as applied to the pistol found in his possession”. That is to say, no case was made that the pistol could serve a militia purpose so the weapon itself was not protected as a Militia weapon.
<O:p
The opinion finally argues that English common law had a long tradition of regulating the bearing of weapons, that the states had ruled under their constitutions that regulations prohibiting the carrying of concealed weapons were in the nature of “police regulations” that “did not go so far as substantially interfere with the public interest protected by the (state) constitutional mandates”, and that this federal law is of the same type. Prohibiting a felon from carrying a pistol was seen as the same as prohibiting the mentally deranged or children from possession. This final bit of reasoning might be true but says nothing about any sort of “collective or individual right”.
<O:p
An important line is crossed here. The decision explicitly advises that federal law similar to state law on owning and carrying is allowed. I have a problem with this idea. As I will discuss later, the legality of the state laws in question almost entirely rests with the idea that the Second Amendment exists only as a restriction on the Congress and not the states. Therefore, those decisions under state law that seems to run counter to the 2nd are allowed. The Tott decision forgets this restriction on Congress so needed to make the state law legal. It is like saying that the states can regulate assembly as the constitutional prohibition only applies to the federal government and then have the federal government say it has the right to prohibit peaceable assembly as all those state laws allow it! Under this reasoning, the protection really does not apply anywhere.
<O:p
The decision footnotes specific records from a learned collection of letters and pamphlets on the ratification process, Elliot’s Debates on the Federal Constitution. The first specific reference is a letter by a founding farther, Luther Martin to the Maryland Legislature. I looked up the Founder, Mr. Luther Martin, a representative from <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com /><st1:State w:st=free State</st1:State></ST1 /><st1:country-region w:st=<st1 /><st1:State w:st=Maryland</st1:State> to the Constitutional Convention. What the learned Judges in U.S.</ST1:p v Tott sort of forgot to mention in referencing Mr. Martin was that Mr. Martin was on the losing side of the constitutional argument. He was so affronted by the Constitution as written that he refused to sign it.
<O:p
Next the Judges referenced the opinion of Mr. William Lenoir at the debates over ratification in <st1:State w:st="on"><ST1:pNorth Carolina</st1:State>. During that debate Mr. Lenoir said
<O:p
quote: <O:p


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“My constituents instructed me to oppose the adoption of this Constitution.”(30 July, 1788) <O:p


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But what did he say about the Second Amendment?
<O:p
quote: <O:p


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“When we consider the great powers of Congress, there is great cause of alarm. They can disarm the militia. If they were armed, they would be a resource against great oppressions. The laws of a great empire are difficult to be executed. If the laws of the union were oppressive they could not carry them into effect, if the people were possessed of proper means of defense.” <O:p
<HR align=center width="100%" SIZE=2>


Seems he was for an armed populace. Anything else? Nope, that’s it. He was not arguing FOR any sort of collective right but warning that a powerful Congress might try to disarm the people. The founders in favor of the Constitution, as demonstrated in the quotes I provided in part one, did not see Congress as having this power to disarm the people. Mr. Lenoir’s view is a minority opinion of the intent and effect of the Constitution and does not specifically address the Second Amendment of the Bill of Rights. Again, the court picked a Founder on the losing side of the constitutional debate. <O:p

The Judges then reference Mr. Roger Sherman of <st1:State w:st="on"><ST1:pConnecticut'</st1:State>s comments at the Constitutional convention. Again I reviewed Mr. Madison’s notes of the convention.
<O:p
Mr. Sherman did not speak of a right to bear arms at the Constitutional Convention or of the Second Amendment. That discussion came after the Convention. Mr. Sherman did second a motion from Mr. Elseworth that…

<O:pquote: <O:p


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“…the militia should have the same arms & exercise and be under rules established by the Gen. Govt. when in actual service of the U. States and when states neglect to provide regulations for Militia, it shd. Be regulated & established by the Legislature of U.S. The whole authority over Militia ought by no means be taken away from the states whose consequence would pine away to nothing after such a sacrifice of power. Authority could not sufficiently pervade the <ST1:pUnion for such a purpose, nor could it accommodate itself to the local genius of the people. It must be vain to ask the states to give the Militia out of their hands”. <O:p


<HR align=center width="100%" SIZE=2>


Later Mr. Sherman argued that the states might want their Militias for defense against invasion or insurrection and for law enforcement and would not give up this point. When the Grand Committee reported out on the subject of the Militia, Mr. Sherman limited his comments to fine tuning the language. After discussion, he withdrew his proposal for language change. Mr. Sherman moved to replace a clause with another whose object was to “refer the plan for the Militia to the General Govt. but leave the execution of it to the State Govts.” This was defeated. Mr. Sherman did strongly object to an idea that officers would be appointed by the States but only below General Officers. His side won that argument. <O:p

[JAMES1776]

In summary, as the Militia at this time was seen as the body of the people, all that was being argued was uniformity, control, and effectiveness not the nature of the Militia, not any application of a right to actually own or bear arms. Mr. Sherman was in favor of maintaining a great deal of State control over the Militia but he supported the Constitution as drafted, strongly recommending its approval at the <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com /><st1:State w:st=free State</st1:State></ST1 /><st1:country-region w:st=United States</st1:country-region> upheld the right of <st1 /><st1:State w:st=Connecticut</st1:State> ratification convention. I do not see any discussion of a collective or individual right by Mr. Sherman unless one views simply discussing who will train and organize the Militia as evidence of a collective right, an idea that I believe the writings of the founders themselves refute.

That was it on the founders. Two founding fathers against the Constitution and one founder who only discussed management of the Militia but never mentioned either an individual or collective right specifically.
<O:p
The Judges in Tott next refer to a variety of then modern works on the Constitution. The Judges remark on the view that the State Militias were formed to a large degree to protect the States against the possible encroachment of federal power making the right collective. The problem with this argument is that it does not speak to the nature of a militia or its composition at all, only one of its several purposes.
<O:p
The decision refers correctly to the only state case that they reference that strongly supports their view, Aymette v State (discussed earlier). The rest of the opinion rests on two law review articles, a paper by a noted <st1:State w:st="on"><ST1:pMaine</st1:State> jurist, and a District Court case. In George Haight’s “The Right to Keep and Bear Arms “(1941), the author provides a long review of English Law, wrote of Hamilton’s and Madison’s distrust of standing armies, and uses this distrust of standing armies and of the preference for Militias as a definitive argument that the founders intended the right to be “collective”. He utterly disregards any discussion by the founders of the meaning of the Second Amendment, some of which I have quoted, and does not address the nature of or what made up the Militia. In short, I believe the author stretched a few comments to make his point and ignored the vastly greater body of evidence against this idea. He then goes on to reference legal opinion from 100 years later. He simply skips serious reference to the founders.
<O:p
The court also referenced a Marquette Law Review article titled “The Right to Keep and Bear Arms” by Daniel McKenna and written in 1928. The article first lists all the state constitutional provisions for a right to keep and bear arms. Next it goes into a very superficial review of those states that do not list a right to keep arms in their constitution and provides a case or two of state or federal law that seemed to show the right only applied at the federal level and that state laws prohibiting the bearing of arms were seen as constitutional.

<O:pHere is where I began to have problems. One of the cases listed is Presser v <ST1:p<st1:State w:st="on">Illinois</st1:State> where the law review article states

<O:pquote: <O:p


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“in which the Supreme Court of the <st1:State w:st="on">Illinois</st1:State> to forbid the parading of unauthorized bodies of armed men, the court properly rejected the argument that the second amendment was violated”. <O:p


<HR align=center width="100%" SIZE=2>


The article did not mention that this same decision specifically stated that the federal Militia consisted of all able bodied males and that disarming them was in fact prohibited by the Second Amendment. The author used the part of the decision that restricted the bearing of arms but failed to mention the stronger language that prohibited the state from disarming the populace. If he did this on one decision, how would I know he did not on others?
<O:p
Then Mr. McKenna makes a giant leap. Without laying a foundation, the author states
<O:p
quote: <O:p


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“Admitting that the Second Amendment only applies to Congress…” <O:p


<HR align=center width="100%" SIZE=2>


Say what? What about the 14th Amendment? The article went on to specifically advise that the right to at least keep arms resided with the militias which were the bodies of the people. He continues

<O:pquote: <O:p


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“it would seem as if the Second Amendment only forbids Congress so to disarm citizens as to prevent them from functioning as state militiamen”. <O:p



<HR align=center width="100%" SIZE=2>


Mr. McKenna provides a variety of state court decisions that seem to run the gambit from allowing the bearing of arms to limiting the ownership with the author finally producing a philosophic argument that ends <O:p

quote: <O:p
<HR align=center width="100%" SIZE=2>


“In other words, will the courts ever say that the Constitutions would protect the right to keep and bear arms, if there were such a right, but that it does not exist and never did exist except in the minds of discredited theorists? Who knows?” <O:p
<HR align=center width="100%" SIZE=2>


That’s it. Opinion, philosophy and parts of carefully selected decisions that seem to lead to the idea that the right is somehow passé are the substance of the argument. Activist judges love this sort of thing.

The decision references State of <st1:State w:st="on"><ST1:pMaine Supreme Court Justice Lucilius Emery</st1:State>’s 1915 paper titled “The Constitutional Right to Keep and Bear Arms”. The paper says “The guarantee does not appear to have been of a common law right, like that of a trial by Jury”. Ok. He next says that from very early times “landed proprietors” were required to keep “Milites” (militias) for service when required by government. He speaks of the early history of the English army and the disarming of some English Militias after rebellion. He notes “It is quite evident from the foregoing that in the seventeenth century in England the assertion of the right of Protestant subjects to have arms was to preserve ‘the laws and liberties of the Kingdom’ and not at all to enable a subject to violate them”. <O:p

[JAMES1776]

Next the paper discusses the Colonial Militias noting that it was the body of all males capable of bearing arms and that they were expected to provide these arms themselves. There follows a quick review of the federal 2dn Amendment and State protections, but emphasizing the idea that such protection were all written with a fear of standing armies in mind. He wrote

quote:


<HR align=center width="100%" SIZE=2>


“Thus construed it is a provision for preserving to the people the right and power of organized military defense of themselves and the state and of the organized military resistance to unlawful acts of the government itself, as in the case of the American Revolution”. <O:p


<HR align=center width="100%" SIZE=2>


He wrote
<O:p
quote: <O:p
<HR align=center width="100%" SIZE=2>


“From the forgoing premises I think there are deductible several propositions as to the power of the legislature to restrict and even forbid carrying weapons by individuals, however powerless it may be as to the simple possessing or keeping weapons” <O:p


<HR align=center width="100%" SIZE=2>


Note the last part. Justice Emery advises that legislatures can regulate carry but cannot regulate possession. He summarized by saying that not all weapons are suitable for the protection, that not all persons can keep arms under the guarantee (Here is his list of people excluded from the protection “women, young boys, the blind, tramps, persons non compos mentis, or dissolute in habits”), and that even those who are protected can have limits placed on where carrying arms is authorized.

<O:pEmery’s views are best summed up here <O:p

quote: <O:p


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“Lastly, I submit that the right guaranteed is not so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against common enemy, foreign or domestic.” And “Granting that the individual may carry weapons when necessary for his personal defense or that of his family of property, it is submitted that he may be forbidden to carry dangerous weapons except in cases where he has reason to believe and does believe that it is necessary for such a defense”. <O:p


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He ends with
<O:p
quote: <O:p


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“In fine, I venture the opinion that, without violence to the constitutional guarantee of the right of the people to bear arms, the carrying of weapons by individuals may be regulated, restricted, and even prohibited according as conditions and circumstances may make it necessary for the protection of the people.” <O:p


<HR align=center width="100%" SIZE=2>


This is a definite “collective rights” view. It does have a few caveats however. The paper admits throughout that even under a collective right, as described, all males capable of bearing arms have a guaranteed right to at least own arms suitable for a militia. The issue is the carrying of such arms and he provides details of where such rights might be restricted. His opinion is long on English common law from 100 years before the revolution and short on specific words from the founders themselves. <O:p

If I was to summarize Justice Emery’s opinion, I would call it a view that was looking for a constitutional way to limit the ability of lawbreakers and to regulate the carrying of concealed weapons and not in any way a case to eliminate arms from the homes of law abiding Americans, something the Justice did not believe the legislature had the power to do.

<O:pWhat is left in <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com /><st1:State w:st=free State</st1:State></ST1 /><st1:country-region w:st=U.S.</st1:country-region> v Tott, the single <st1:Street w:st=" /><st1:address w:st="on">Federal District Court</st1:address> decision referenced, <st1:country-region w:st="on">U.S.</st1:country-region> v Adams of 1935. <O:p

In this case, the defendant questioned the legality of the National Firearms Act in part because it violated the 2nd Amendment. The court blew through the Second Amendment claim in one paragraph ruling

quote: <O:p



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“The Second Amendment to the Constitution, providing ‘the right of the people to keep and bear arms, shall not be infringed’ has no application to this act. The Constitution does not grant the privilege to racketeers and desperados to carry weapons of the character dealt with in the act. It refers to the Militia, a protective force of government; to the collective body and not individual rights” <O:p


<HR align=center width="100%" SIZE=2>


This is a definite collective right. The Court referenced four state cases and again, as previously discussed, McKenna.
<O:p
Their principal case is State v Workman dated 1891. This state of <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com /><st1:State w:st=<ST1:pWest Virginia</st1:State> appeals court case is about concealed carry. The state law recognized a pretty unlimited right to carry a concealed weapon in one’s home or to and from the place of purchase and in ones own defense if of good character and believed to be in danger. The defendant claimed he only carried a weapon because he was threatened by a known violent man. This case is entertaining because the issue of the pistol being carried was never denied. The issue of the threats against the defendant was proven. The only issue debated was a provision that the person in fear of his life be of “good Character” as required by state law. The defendant did not make that case.
<O:p
In the appeal the defendant argued that the entire clause requiring such good character was in violation of the Second Amendment. The Court in it’s decision notes, even in 1891, that “authorities differ” as to the effect this amendment should have on the states or congress (which means the issue is hardly settled law as claimed in U.S. v Tott referencing Adams which relies on this case. I have discovered that something becomes “settled law” when a law clerk simply writes it is so and the judge agrees. )

The court argued <O:p

[JAMES1776]

quote:



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“…we may still conclude that by law to regulate a conceded right is not necessarily to infringe the same. Thus a prohibition against passing any law abridging freedom of speech or of the press, would scarcely be construed to prohibit all statutes defining slander or criminal libel…” <O:p


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The opinion then goes on to reference English common law and entirely skips over any mention of the intent of the founders on the issue. The decision reads
<O:p
quote: <O:p


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“…the keeping and bearing of arms, therefore, which at the date of the amendment was intended to be protected as a popular right, was not such as the common law condemned, but was such a keeping and bearing as the public liberty and its preservation commended as lawful, and worthy of protection.” <O:p


<HR align=center width="100%" SIZE=2>


Sort of a collective right maybe. They then go on to advise that any weapons protected by the amendment must be of the type used by a militia. <O:p

U.S.</FONT> v Adams also advises that the ideas in the case above were sustained by the three other cases that follow. First is Hill v State, another concealed carry case from <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com /><st1:country-region w:st=<ST1:pGeorgia</st1:country-region> dated 1874 in which a pistol was carried into court contrary to state law. This decision was another attempt by the defendant to apply the Second Amendment to the states. The court ruled,
<O:p
quote: <O:p


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“it is now well settled that the amendments to the Constitution of the <st1:country-region w:st="on">United States</st1:country-region> of March 4 1789, are all restrictions, not upon the states, but upon the <ST1:p<st1:country-region w:st="on">United States</st1:country-region>.” <O:p


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Having written off the U.S. Constitution, the Judge goes on to rule that any appeal had to be based on the State Constitution. Note this is years after the 14th Amendment, an amendment that seems to have been generally ignored in the south. Having said the U.S. Constitution does not apply, he advises that the right only applies to the militia and that the arms mentioned are arms useful to a militia. The Judge says
<O:p
quote: <O:p


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“In what manner the right to keep and bear these pests of society (the concealed arms in question), can encourage or secure the existence of a militia and especially of a well regulated militia, I am not able to divine”. <O:p



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The judge is definitely against this version of a personal carry. He goes on,
<O:p
quote: <O:p


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“But assuming that the guarantee of our state constitution was intended to include weapons of this character,( which considering that is was made part of the constitution after the decision of Nunn v The State, in 1 Kelly, is not improbable), we still are of the opinion that the act of October 1870 (the law in question) is not unconstitutional.” <O:p


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He wrote how the very idea of the founders allowing arms in court or church would surely have been a
<O:p
quote: <O:p


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“thing so improper in itself, so shocking to all propriety, so wholly useless and full of evil, that it would be strange if the framers of the constitution have used words broad enough to give it a constitutional guarantee”. <O:p


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Wow, powerful stuff here, BUT, the judge is only giving his own opinion without a single reference to those founders and apparently not in keeping with the established law of his state. His reference to settled law that does put exactly these weapons in the State Constitution is ignored. What do we have here? We have a decision that ignores the 14th Amendment, ignores contrary law in the state, provides a decision that reads like a tent revival ending with almost a page (of 6) of Biblical references and does not reference a single founder or state case law in support of the judges decision. Not very good law here. Put another way, this smells like a Judge on a mission. <st1:country-region w:st="on">U.S.</st1:country-region> v <ST1:pAdams also references “The Civil Rights Cases” a U.S. Supreme Court decision of 1883. This case does not consider the second amendment at all nor any gun rights but is a ruling of the effect of the 14th Amendment on state law. The ruling basically says that the 14th amendment was a redress of grievances for acts done by a state. Baring such an act, Congress could not pass law baring such a state act. If an individual was being discriminated against by another individual or business, it was a matter for the state to resolve. If the state itself passed legislation that was the agent of discrimination, then the Congress or the courts could act to redress the wrong. I doubt if this ruling would be considered valid today.
<O:p
Finally, <st1:country-region w:st="on">U.S.</st1:country-region> v Adams references a U.S. Supreme Court decision, Robertson v <ST1:pBaldwin from 1897. This case had nothing whatever to do with firearms, consisting in a case about merchant sailors and involuntary servitude. It only applied to arms at all because of a statement discussing the limitations of the original first ten amendments.
<O:p
quote: <O:p


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“The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the ‘Bill of Rights’, were not intended to lay down any novel principals of government, but simply to embody certain guarantees and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well-recognized exceptions, arising from the necessities of the case…the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons…” <O:p

[PrezLeefun]

I am sorry but you write to damn much, for anyone to want to hear your point. Do you like the sound of your own voice as well?

[JAMES1776]

That’s it. I see nothing about a collective right in that decision.

Where are we? How do I summarize the court cases? I have looked at the first U.S. Appeals court case to ever reference a “collective” right over 150 years after the ratification of the Constitution. I have traced each reference from the case. In the case of references to the founders, I have demonstrated that the majority were either on the losing side of the constitutional argument or simply did not produce any substantive opinion on the issue at all. I noted the law review articles used and traced their references. I made extensive comments on the sole U.S. District Court ruling, Adams and have traced all references from that case back to their sources.
<O:p
Did those references, any of them, go all the way back to the founders? No. Did the majority of these decisions even make specific reference to the founders? No. In fact, most were state law that made reference to their own State Constitutions. When they referenced the U.S. Constitution at all, most seemed to dismiss it as not applying to the states.

In addition, the judicial opinions often seem to confuse the original discussions at the Constitutional Convention with the later discussions specifically about the Bill of Rights. They forget that an amendment to the Constitution does in fact change the document, and that discussion of the amendment itself is often more relevant than discussion of the document being changed. That the founders had discussed who would regulate the Militia while not seriously speaking of arms at all is of less note than the actual discussion surrounding the amendment in question which did go into intent and did discuss just who these people are that are spoken of in the Second Amendment.
<O:p
Would modern Judges say that the right to peaceably assemble was not a right guaranteed by the Constitution? How about federal protection of minorities from harm? Many of the court cases that lead to a collective right also specifically say such rights are only protected by the states. If these legal precedents are wrong about such fundamental rights, why does anyone assume they got it right on the Second Amendment?

<O:pIt seems these state decisions all hold their power because they state the Second Amendment did not apply to state law. If it did apply, then the opinions reached would not have been the same. At least two Supreme Court decisions that restrict an individual’s right to bear, if not keep arms, Cruikshank and Presser, as well as most of the other cases listed in support of a collective right, all state that the Second Amendment is a restriction on the Federal Government and not the states. If this is so, how did the idea that the Congress could not write laws against this protection, as stated in the amendment, change into Congress could make such laws?

<O:pWe have a really big logical disconnect here. If Second Amendment protections only apply to Congress, as the foundation cases of the “collective rights” theory all specifically say, then how do the Courts allow laws that are specifically prohibited by this reasoning at the federal level? The Answer appears to be to ignore the basis of the state decisions referenced and apply these opinions to federal law, in essence making the Second Amendment prohibition not apply anywh<O:pere

Let me try to explain it this way:
<O:p
The “collective right” is described as
<O:p
quote: <O:p


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“….this amendment, unlike those providing protection of free speech and freedom of religion, was not adapted with individual rights in mind, but as a protection for the States in the maintenance of their Militia organizations and against possible encroachments by the federal power” <O:p


<HR align=center width="100%" SIZE=2>


This idea, as I have demonstrated, is not based on anything the Founders said or did. It is not based on any special nature of the Militia, as the Militia was a body of the same people who were protected throughout the Bill of Rights. No, it is completely a creation of the courts beginning in <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com /><st1:State w:st=free State</st1:State></ST1 /><st1:country-region w:st=U.S.</st1:country-region> v <?xml:namespace prefix = st1 ns = " /><st1:State w:st="on"><ST1:pTennessee</st1:State> in 1840, 59 years after the Constitution.
<O:p
The entire legal basis for this “collective right” rests on State law based on State Constitutions.

The vast majority of this law, in turn, rests on the assumption that the Second Amendment is only a restriction on the Federal Government and Congress and does not apply to the states. I have not found a single state case that is used to indicate a “collective right” that denies the Second Amendment applies to the Congress.

Here is the disconnect, the flaw in the logic. When this “collective right” is transferred from State Law to Federal decisions, the Federal Courts use these state cases to prove a “collective right,” but then go on to ignore that the basis of this proof, the State cases, rest on the idea that the Second Amendment does not apply to the states, except as prohibiting disarming the militia, but that the federal government must itself obey the restrictions in the Second Amendment and not make law prohibiting the keeping and bearing of arms.

Think about this.

The “collective rights” devotees want a right that allows States to prohibit the owning and bearing of arms.

They base this “right” on State case law that itself relies on the 2nd Amendment NOT applying to the States.
<O:p
Having used such State law to establish a “collective” right, they go on to say that, as state law sometimes follows a “collective” right, the right is also “collective” at the federal level.

Therefore, Congress CAN enact laws that directly restrict the right of the people to keep and bear arms.
<O:p
Wow, they get to have it both ways! How convenient.
<O:p
No, if the state law rests on a Second Amendment that does not effect the states, but is limited to Congress, then Congress is LIMITED to not making such law.
<O:p
Under a “collective right”, the Second Amendment restriction prohibiting making law that infringes on “the right of the people”, applies to the federal government, or the foundation of “collective right” law, the state law, is bogus.
<O:p
The original cases involving Federal law that referenced a “collective right” all seemed to involve some form of concealed carry legislation, as did almost all the state cases. The problem is, the actions the modern “collective rights” judges justify by using such a right have moved beyond concealed carry to actions that are specifically denied by these cases.
<O:p
For example; in State v Workman, the court ruled that arms protected by the Second Amendment must be arms suitable for a Militia, but the Clinton Assault Weapons ban, which relies on a collective right to outlaw assault weapons, specifically bans the very weapons that all these court cases protect!! The same is true in the Nine Circuit Court of Appeals decision in Silviera.
<O:p
No, the founders were clear. They were clear as to who made up the Militia, the people. The same people referenced in the second clause of the Second Amendment were the people in all the other amendments. The Congress and most State Constitutions also produced a similar right. The “collective” right arose from state law alone many decades to over a century after the Constitution was drafted. It simply is a creation of the courts having nothing whatever to do with the intent of the founders. What is worse, in its journey from State Court to Federal Court, the very foundation of the “collective rights” case has been perverted to allow the very thing all these legal opinions specifically prohibit, the elimination of arms that are the most suitable for the Militia.
<O:p
The collective right is a sham, a bizarre transfer of often cherry-picked state law into the federal realm. In the process, the advocates of this “right”, invented by an Imperial Judiciary outside of the Constitution, have managed to twist an absolute right for law-abiding individuals to own their arms, suitable for a militia, to a prohibition. They use the same cases that protect such an individual right of ownership today, to limit or remove this ownership right.

Their case for limiting concealed carry is stronger. It is at least consistent with case law and does have a mixed record under English common law. The problem here is with the founders and the Constitution. The Founders never seem to have discussed the issue at all and the Constitution is silent on the issue. These restrictions seem to have arisen half a century after the Second Amendment was ratified. None of the case law allows states to ban the individual ownership of weapons suitable for a Militia. In fact they specifically protect this right.
<O:p
The courts have pretty well screwed up the Constitution here. It now bears little resemblance to anything discussed in 1790. The Founders would have been horrified. The legal profession should be ashamed. <O:p

(end) <O:p

[JAMES1776]

I am sorry but you write to damn much, for anyone to want to hear your point. Do you like the sound of your own voice as well?

First, I must apologize for the format. I had major problems transfering the thing from Word to this forum

As to the content, do you not have even a minor interest in where this "collective" right theory came from? It is not enough to simply reject it as the courts won't. One must see where it came from and find its weaknesses and contradictions.

I was really interested in knowing if the collective right was based in the Constitution or simply was some judges mind fart. I found it was the latter.

[Wolfcounsel]

"Do you like the sound of your own voice as well?" --PrezLeefun, to JAMES1776


I know I like my voice, and I make recordings of Vogon poetry, featuring ME!

The right to bear arms is like the right of the individual to use overwhelming force to defend himself and his loved ones. He does not need the permission of a group of people, and he does not first have to join a militia to send an attacker to hell.<!-- / message --><!-- sig -->

[THEBIRD]

I live for 2nd amendment topics, but this was even to much for me to sit and read.

Maybe try to post your findings here on this site: http://www.missouricarry.com
They love talking about this stuff in the forum.

[JAMES1776]

I live for 2nd amendment topics, but this was even to much for me to sit and read.

Maybe try to post your findings here on this site: http://www.missouricarry.com (http://www.missouricarry.com/)
They love talking about this stuff in the forum.

I really believe I have done something no one else has ever done. I took a look at the collective right theory from three standpoints, what the founders said, what the militia is, and really new, through the courts.

I took the idea from the first federal appeals court case to discover it all the way back through every reference used, as far as it will go.

I found the idea began in 1840 and has nothing to do with the Constitution or the founders.

In my world, this is important. If others believe simply stating a position has any relevance in the law, good for them. I actually KNOW where the idea came from and I know the state of the law.

It took months of research and almost 11,000 words to do it, but I can present a real argument on the issue. Those with opinions only may take this or leave it. I am satisfied.

[JAMES1776]

Any time. Now I hope some will point to any errors. I want to get this right.

[RuffhouseFarm]

I am sorry but you write to damn much, for anyone to want to hear your point. Do you like the sound of your own voice as well?

This has got to be the stupidest and most insulting thing I've ever read on a respectable forum. Are you some dumb young punk who has no clue how important this subject is? Do you have any idea how much effort went into this? If you are too foolish to be interested in it, then just shut up and go read something else.

Now I'll go back to reading this excellent work after your rude interruption.

[Wolfcounsel]

I read James' threads the first day he posted them and I gave my reply. There isn't much to comment on. It's an individual right, no matter how many public people are against it or for it.

[DesertFox]

Ruff, Prez is a teenager. Don't be overly put off.

[Wolfcounsel]

"Ruff, Prez is a teenager." --DesertFox


We used to tell our teenage boys to say this mantra over and over so we could keep our sanity:

I AM YOUNG AND FOOLISH YET.

[JAMES1776]

Then one would think, if he ever wanted to take a position on the issue, that some knowledge might help.

[Wolfcounsel]

"Then one would think, if he ever wanted to take a position on the issue, that some knowledge might help." --JAMES1776


Only if he argued that the right to keep and bear arms is a collective right.<!-- / message -->

[DesertFox]

He'll get mugged one of these days. Then he'll get it.



If he survives

[RuffhouseFarm]

Ruff, Prez is a teenager. Don't be overly put off.

I understand your point, but IMO that makes his remark even worse. His parents need to slap some study skills and some respect for his elders who know more than he does into him.

Kids should be seen and DEFINITELY not heard.

[RuffhouseFarm]

"Then one would think, if he ever wanted to take a position on the issue, that some knowledge might help." --JAMES1776


Only if he argued that the right to keep and bear arms is a collective right.<!-- / message -->

I think James meant if Prez wanted to take a position against the collective right in some venue other than this forum where people don't agree with the collective right theory.

[norminater]

James... where can we find this alleged WORD Document. Wouldn't it have been easier to convert it to html and post it on your webspace provided by your ISP or a free yahoo page or something?

And could you do that? I would love to have that document in my arsenal.

[Wolfcounsel]

"I think James meant if Prez wanted to take a position against the collective right in some venue other than this forum where people don't agree with the collective right theory." --RuffhouseFarm


Yes, now that I read it again. Brain fart on my part.<!-- / message -->

[JAMES1776]

James... where can we find this alleged WORD Document. Wouldn't it have been easier to convert it to html and post it on your webspace provided by your ISP or a free yahoo page or something?

And could you do that? I would love to have that document in my arsenal.

Don't have a web site though I would be happy to route you a copy as an enclosure to an E-amil if you route me your address.

[DoctorDoom]

James, your research is much appreciated. Having all that good information in one place is very helpful. Danke schoen!

First, I must apologize for the format. I had major problems transfering the thing from Word to this forum.Word documents converted to HTML work properly in a browser window, but as a post, the vB code adversely affects some of the formatting. It's a common problem, and it results in anomalies such as free statelace…” >>.

Note that you can add a DOC file as an attachment to the post using the "Manage attachments" function (visible except in Quick Reply).

[JAMES1776]

Cannot do it. The file size is too big (7 times). Great idea though.

[HomeschoolrsRUs]

James,

Can you split the doc into separate word docs, and post them one at a time? Just a thought (I am NOT a computer whiz, so this may be just a ridiculous idea altogether. If so, sorry for sticking my nose in where it doesn't belong).

Hms

[DoctorDoom]

I've attached the whole thing as a ZIP file containing all of it as a TXT file. It's 20K. You'll need a program like WinZIP to open it, but it fits in one piece.

[JAMES1776]

Wow!

[Rhino]

Well done, James. But I have to break it to you; you aren't the first to do this. Still good info though.

[JAMES1776]

Thanks Rhino. Where can I find other efforts to trace the right back through the case law?

[mabzie]

There's no such thing as a "Collective right"