Posted on 03/13/2006 12:38:29 PM PST by neverdem
RON MILLER is obviously a good fiction writer. His op-ed on the Second Amendment ["Hold your fire: Second Amendment was aimed at building militias," March 1], certainly qualifies as such.
Miller, like others who wish to restrict select freedoms, writes that the Second Amendment is obsolete--only there to form a militia--and that it does not guarantee an individual right to arms.
After reading the voluminous writings of the people who conceived the Constitution and Bill Of Rights, I can only find history that is at odds with Miller's theories.
I would certainly like to know the historical sources to back up his assertions that:
"A civilian militia simply doesn't work."
As a former Armored Cavalry Scout of the Virginia Army National Guard, 29th Infantry Division, I can assure him that I am insulted by the implication that the most decorated militia unit in Virginia history did not and does not work--especially after the landing on the beaches of Normandy in WWII, and the current deployments to Iraq and Afghanistan.
By Virginia law (Code Of Virginia: § 44-1, Composition of militia), each of us, including Mr. Miller, is currently a member in the Virginia unorganized militia (one of the four official militia classes of Virginia). He may be called upon until the age of 65. Members of the Virginia State Defense Force may be retained until age 75.
I will personally ensure that Mr. Miller reports for duty, with his weapons.
"The Second Amendment is a kind of fossil."
Remember New Orleans and the Rodney King riots in Los Angeles? Civilian-citizens banded together in the time-honored militia and defended their lives, neighbors, and communities. They defended themselves successfully with rifles, shotguns, and pistols.
The police tried and in some cases disarmed the people in New Orleans, then abandoned them to the gangs and looters.
Those police and their officials, including Mayor Nagin, are currently under a federal restraining order and are being sued for Second and Fourth Amendment violations. They have also had contempt charges filed, for ignoring that order.
"[The Second Amendment] can be made clearer by simply inverting the two clauses, thus: 'The right of the people to keep and bear Arms shall not be infringed because a well regulated Militia is necessary.'"
Legal minds strongly disagree with Miller's wishful thinking. "The plain language of the amendment, without attenuate inferences therefrom, shows that the function of the subordinate clause was not to qualify the right, but instead to show why it must be protected." U.S. v. Emerson, 46 F.Supp.2d 598.
Jurists St. George Tucker, William Rawle, and Joseph Story were contemporaries of the Founders, wrote constitutional commentaries--and read the Second Amendment as protecting a private, individual right to keep arms.
And Thomas Jefferson's thoughts on "interpretations"?
"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." (Jefferson, letter to William Johnson, June 12, 1823).
"A civilian army does not--and probably cannot--work."
See the first correction to this argument, above. Many times each year the militia is activated and used to support law enforcement and emergency personnel, all across America: the hurricanes of the Gulf Coast in 2005, the Virginia snow storms of 1980 & 1981, the Richmond floods of 1986, Hurricane Agnes 1972 in Fredericksburg.
They work.
Does Mr. Miller honestly think that a call to the civilian military veterans of America, for the defense of hearth and home, would go unanswered? How does he explain the Swiss, who use a militia exclusively without a standing army?
In perhaps the most obvious case of willful revisionism, Miller suggests that the Second Amendment is not a part of the Bill Of Rights, and the amendment does not guarantee an individual right.
In all of the other amendments to the Constitution, when it says "the People," it means individual citizens--except in the Second Amendment? I'm sure that James Madison and friends would find that astounding.
As one person on the scene at the time put it: "As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." (Tench Coxe, "Remarks on the First Part of the Amendments to the Federal Constitution" writing under the pseudonym "A Pennsylvanian" in the Philadelphia Federal Gazette, June 18, 1789.)
And consider: "The constitutions of most of our States assert that all power is inherent in the people; thatit is their right and duty to be at all times armed." (Jefferson, Letter to John Cartwright, 1824.)
"The amendment has nothing to do with the rights to protect one's home and family "
Miller thus concedes, by his own statement, that a right to protect [defend] one's home & family exists. Like all of our rights, it is a natural right that exists independent of any document or law.
The Second Amendment guarantees that the government shall not infringe the right of the people to own the instruments used to accomplish this defense.
Remember New Orleans & Katrina?
" the sole, original intentions [of the Second Amendment] were: the creation of a civilian militia."
That anyone could base such an assertion on his own interpretation and not on the writings of the people who conceived and wrote the Second Amendment is beyond astonishing--and sounds like an artifice of falsity.
It brings to mind a quote from another ODWG (old dead white guy):
"The liberties of our country, the freedom of our civil constitution are worth defending at all hazards; and it is our duty to defend them against all attacks. We have received them as a fair inheritance from our worthy ancestors: they purchased them for us with toil and danger and expense of treasure and blood, and transmitted them to us with care and diligence. It will bring an everlasting mark of infamy on the present generation, enlightened as it is, if we should suffer them to be wrested from us by violence without a struggle, or be cheated out of them by the artifices of false and designing men." (Samuel Adams, 1777)
Nowhere does Miller use the published words of the people who debated, conceived, and wrote the Bill of Rights to the U.S. Constitution. Why is that? Because they do not support his delusion. Miller would have to take out of context the words to prove his point.
Miller's attempt at "artifices of false and designing men" against "our fair inheritance" is summarily rejected.
Which author are you describing, Ron Miller?
"Good heavens! Then why bother with the permit?"
By that logic, why bother with a gun? Unless, of course, bad guys are in the habit of attacking folks at the gun range. I have a concealed carry permit and I rarely ever carry, but someday they may find a way to stop issuing them and maybe those who already have one may be grandfathered. I generally trust government...trust them to do the wrong thing.
Too sad... well, maybe not.
Just think of all the females in the military being slaughtered by our own GIs. /sarcasm
Where are the records of arrests for possessing arms in Revolutionary times?
Well said. BTTT
We hear so often about the 2nd Amendment and we rarely hear about the 44 state constitutions with language clearly stating the right to keep and bear arms. I'm not aware of a historical study of militias since 1792. Such a study would be helpful in enlightening the befuddled. But if they missed the train of reason at the first stop, it's unlikely that they would have sense enough to hop aboard if it passed by again.
Forgot to mention why I posted.
While looking through some books that I inherited, I opened one that is some kind of historical account of Michigan. Within its pages, there is an account of several groups of militias from Michigan that reported for duty during the Civil War. Each of the militias had a name related to an area and rather than suggesting the numbered division or battalion of a standing army. I'll have to dig it out later and take another look.
"Sorry, you are wrong, the first C is for Carrying. Carrying Concealed Weapons, but concealed is the operative word when you are out in public. It is ok to tell people you know that you have one as long as you don't shout it out in public and let the general public know you have a weapon on you.
To put it in perspective though, we shouldn't have to have a permit to exercise our 2nd amendment rights. If we keep fighting we may make it back to that point eventually!"
Actually, we never were at that point. The founders never discussed the concealed carry of weapons. Lawyers did, decades later,but the earliest records of serious discussion began in state courts in 1840. The record of these court cases has two things in common. The first is the recognition that the bill of rights applied restrictions on Congress and not the states and second, having dismussed the second as not applicable to the state, they considered concealed carry and generally precluded it except under specified conditions.
We have never had a second amendment right to carry concealed. We do have a lot of state rights do do so but not based on the second.
There are several flavors of milita under the law. The Militia act covered the unorganized reserve militia. The best description of that that I know of comes from a court case in the 1880's Presser v Illinois.
Here is the best section on the militia
"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 question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful
resource for maintaining the public security, and disable the people from performing their duty to the general government."
Presser v Illinois US Supreme Court 1885
The "constitutional provisions' they discuss are differences between the federal laws on militias and the Illinois laws. The court did not rule on these as they were able to reach an opinion without such a ruling, though they did write an opinion that read like the state was in trouble if challenged with a better case.
On top of that, most states, if not all, have their own right to bear arms amendments in the state constitution. The right to carry implies the right to carry concealed unless otherwise stated in the amendment. Neither your argument or the arguments of 1840 are valid, they simply wanted to override the rights of the people.
If the bill of rights doesn't extend to the states, what was the use of writing them? A slave to the govenment is a slave, whether that government be state or feds.
"Jackson Greys" are names of at least two groups from the Confederacy, as well, one in Virginia and another in Louisiana.
Found an out-of-print book By: Stanley D Solvick • Publisher: Detroit, Mich. : Wayne State University Press, 1988. • ISBN: 081431886X...about the Detroit Light Guard, nothing on the Jackson Greys, other than groups from the Confederacy.
Thank you for the info.
I think 44 states have a RTKBA in their constitution. Two others have something about self-defense. The other 4? Curiously, New Jersey is one state with no RTKBA in their constitution, although self-defense gets a mention.
If you are interested, the link below sheds light on the matter. Once there, click on "The Bill Of Rights & The States"
http://www.nraila.org/Issues/FAQs/Default.aspx?Section=17
“Sorry, you are wrong again. We did have the right to carry concealed, as you say it wasn't until 1840 that the events you outlined took place. Up to that time we could carry however we wanted. The second amendment gives the right to keep and bear arms, it doesn't specify concealed or not, therefore we have the right to carry concealed. As to the states not being limited by the bill of rights, I thought that was settled with the 14th amendment and it should apply to the second as well.
On top of that, most states, if not all, have their own right to bear arms amendments in the state constitution. The right to carry implies the right to carry concealed unless otherwise stated in the amendment. Neither your argument or the arguments of 1840 are valid, they simply wanted to override the rights of the people.
If the bill of rights doesn't extend to the states, what was the use of writing them? A slave to the govenment is a slave, whether that government be state or feds.”
Sorry, you are making assumptions based on wishful thinking. I can produce a lot of evidence supporting my position from 2nd amendment debate over ratification to state and federal court cases through about 1870. Prior to 1840, states and local laws regulated the carrying of arms concealed. In 1840 in Aymette v State, a Tennessee state case, a man was being prosecuted for carrying a bowie knife concealed. The court ruled:
“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”.
The opinion also noted specifically that the 2nd did not apply to state law. 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.
Other states came to different conclusions about concealed carry but they all considered the issue one that was based on state law and the state constitution and not the federal one. This particular decision is important for two reasons. First, it is still referenced in current federal decisions, and second, it is absolutely absent any reference to the founders, either state or federal.
As to why have a bill of rights if it does not extend to the states, originally the answer would be to protect state sovereignty and after the 14th, the issue becomes moot as the 14th was designed to incorporate the entire bill of rights into state law.
The problem with the 2nd being incorporated through the 14th is that the second has never, in any court, been construed to include concealed carry. I cannot find a case that applied.
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