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2nd: The founders meant what they wrote about arms
JS Online ^ | 7/1/06 | TOM MONCURE

Posted on 07/03/2006 6:45:30 PM PDT by kerryusama04

Sanford Levinson, a distinguished constitutional law professor, wrote in the Yale Law Journal that the Second Amendment suffers from a lack of serious scholarship.

Few law students envision the Second Amendment as an area of lucrative practice upon graduation. His article, "The Embarrassing Second Amendment," sent a shock wave through academia by suggesting that the amendment might actually mean what it says.

Issues involving guns have taken center stage in the cultural divide that separates red and blue America.

Gun control advocates point to the militia clause of the Second Amendment, arguing that it warrants a collective, rather than an individual, right to keep and bear arms.

However, history - buttressed by the founders' clear understanding - dictates that the amendment guarantees this right to individuals.

The U.S. Supreme Court has not dealt directly with the Second Amendment since 1939.

Then, United States vs. Miller held that a sawed-off shotgun was subject to registration because there was no evidence before the court that it had a military use. This opinion suggests that any demonstrably military weapon should enjoy the protection of the Second Amendment.

The Supreme Court has conjured rights from the Constitution that do not exist in the text - while disparaging those rights contained in the document itself - leaving both sides of the gun debate cause for concern in any future rulings.

Oblique references in subsequent cases lend credibility to an individual rights interpretation.

The late Chief Justice William Rehnquist noted in a 1990 case, United States vs. Verdugo-Urquidez, that the use of "the people" in the Bill of Rights was used not to avoid an "awkward rhetorical redundancy," but rather was chosen as a "term of art employed in select parts of the Constitution."

He noted that the use of "the people" in the First, Second, Fourth, Ninth and 10th Amendments was within the context of protecting that class of persons who are part of the nation.

When adopted by the states, the Second Amendment generated no controversy. State and federal militia laws required citizens to keep arms and ammunition in their homes.

The greater concern, as articulated by the great orator Patrick Henry, was how to provide guns to those who could not afford them.

The bearing of arms was both a right and responsibility of citizenship, with arms being legally denied to those who were not citizens.

The very idea that citizens might be barred from militia membership was itself an indication of tyranny.

The original purpose of the entire Bill of Rights was to prevent federal intrusion into the fundamental liberties of the people. The collective-rights interpretation contends that the militia clause limits the scope of the right to keep and bear arms, guaranteeing only that states can maintain a National Guard.

The flaw of this interpretation is clear in the language of the Second Amendment, which secures the rights of the "people," and not the "states," to keep and bear arms.

The right to be armed for personal protection is well recognized by common law and preserved under the Ninth Amendment.

The U.S. Supreme Court reiterated, in the 2005 case of Castle Rock vs. Gonzales, that government cannot be held liable for failure to protect the lives of its citizens. Personal self-defense remains an individual responsibility.

The Second Amendment serves two higher callings. On a practical level, armed citizens provided the ultimate security against enemies and tyrants.

On a philosophical level, the founders knew that our ultimate success depended on the character of the people.

George Mason wrote in the Virginia Declaration of Rights that "no free government, nor the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality and virtue."

Much is assured us by the Bill of Rights - but much is also expected of us.

Indeed, the American paragon is the Minuteman, typically represented as a yeoman farmer, who goes back to the plow when his martial duty is done.

The Second Amendment guarantees our sacred rights, but also reminds us of our solemn responsibilities.

Benjamin Franklin observed that "those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."

The founders meant what they wrote - even if, as professor Levinson indicated, some today may find it "embarrassing."

Tom Moncure is a former assistant counsel to the National Rifle Association.


TOPICS: Crime/Corruption; Culture/Society; Front Page News; Government; Politics/Elections
KEYWORDS: bang; banglist; heller; nra; rkba; secondamendment
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1 posted on 07/03/2006 6:45:32 PM PDT by kerryusama04
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To: kerryusama04
Much is assured us by the Bill of Rights - but much is also expected of us.
2 posted on 07/03/2006 6:46:12 PM PDT by kerryusama04 (Isa 8:20)
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To: kerryusama04

OMG - do you mean the left was misleading us all these years - that the 2nd most important amendment means what it says?


3 posted on 07/03/2006 6:49:48 PM PDT by spanalot
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To: kerryusama04
One of the best to the point articles about the Second Amendment that I have read. Bookmarked for future reference.
4 posted on 07/03/2006 6:53:33 PM PDT by Hang'emAll (WE WILL NOT DISARM!!!)
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To: kerryusama04

"Then, United States vs. Miller held that a sawed-off shotgun was subject to registration because there was no evidence before the court that it had a military use."


Can someone explain how that was not successfully argued by the pro 2nd side.



5 posted on 07/03/2006 6:55:41 PM PDT by ansel12
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To: kerryusama04

OMG!! OMG!! the 2nd ammendment means what it says...


6 posted on 07/03/2006 6:55:43 PM PDT by Cinnamon
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To: kerryusama04
I like Pennsylvania's state constitution:

"The right of the citizens to bear arms in defense of themselves and the State shall not be questioned."

Now my question is why do people in Harrisburg question it?

7 posted on 07/03/2006 6:59:06 PM PDT by MilesVeritatis (War is an ugly thing, but not the ugliest of things...." - John Stuart Mill)
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Comment #8 Removed by Moderator

To: kerryusama04
The U.S. Supreme Court has not dealt directly with the Second Amendment since 1939.

Then, United States vs. Miller held that a sawed-off shotgun was subject to registration because there was no evidence before the court that it had a military use. This opinion suggests that any demonstrably military weapon should enjoy the protection of the Second Amendment.

The weapons that the 2nd Amendment was written about were the state of the art of their time. There were weapons at the time of the writing of the 2nd Amendment that would easily have been the equivalent of "sawed-off" shotguns and considered "trench sweeper"s or blunder-busters.

There are no words to overemphasize my amazement that ANYONE cannot understand that our 2nd Amendment means that the right to bear arms "shall not be infringed". If there is any uncertainty about it, read below:

Main Entry: infringe

Part of Speech: verb Definition: violate

Synonyms: borrow, breach, break, butt in, chisel in, contravene, crash, crib, disobey, encroach, entrench, impose, infract, intrude, invade, lift, meddle, muscle in, obtrude, offend, pirate, presume, steal, transgress, trespass

Thesaurus.com

I truly believe that if I wanted to have a Abrams M1 tank sitting at ready on my property - no one - government official - or not has any right to infringe upon my Constitutional right to have it.

9 posted on 07/03/2006 7:05:30 PM PDT by winston2 (In matters of necessity let there be unity, in matters of doubt liberty, and in all things charity:-)
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To: ansel12
Can someone explain how that was not successfully argued by the pro 2nd side.

It's my understanding that the "pro 2nd side" in this case, i.e. Mr. Miller, i.e. the plaintiff, was dead by the time this case got to the SCOTUS. Therefore, there was no one to argue the point.
10 posted on 07/03/2006 7:09:31 PM PDT by Jubal Harshaw
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To: winston2
I truly believe that if I wanted to have a Abrams M1 tank sitting at ready on my property - no one - government official - or not has any right to infringe upon my Constitutional right to have it.

Civilians held cannons between conflicts back in the day. The Queen Mary went back and forth from being civilian to military, too, if memory serves. I don't think the founders ever wanted us to have the military might we have today, but I agree with you that whatever the military uses, we ought to be able to own to a point. WMD excluded.

11 posted on 07/03/2006 7:12:45 PM PDT by kerryusama04 (Isa 8:20)
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To: kerryusama04
When adopted by the states, the Second Amendment generated no controversy. State and federal militia laws required citizens to keep arms and ammunition in their homes.

The greater concern, as articulated by the great orator Patrick Henry, was how to provide guns to those who could not afford them.

This is interesting in that if any modern legislator promoted either or both these positions, they would be roasted by the LSM. That's "progress" for you.

12 posted on 07/03/2006 7:13:53 PM PDT by Disambiguator (I'm not paranoid, just pragmatic.)
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To: kerryusama04
Gun control advocates point to the militia clause of the Second Amendment, arguing that it warrants a collective, rather than an individual, right to keep and bear arms.

Gun control advocates are then historically ignorant and not overly bright.
Before the 2nd amend was ratified personal gun ownership was common and widespread. I would confidently say that if one walked around any town in 18 c. America after it's ratification most men would be carrying an arm, or own one, two, or more. If the intent was against private ownership then were is the record of the mass confiscation that surely would have occurred? (Note to lurking liberal: there wasn't one).
Any 'militia' were required, a great majority of the time, to report carrying their own arms, which they took back home with them.
The Founders intent must be read in the language, (and the meaning of it's usage), of the time.
The Founders, fully endorsed private gun ownership. As a matter of fact they would have thought it unwise for one not to have arms.

13 posted on 07/03/2006 7:14:16 PM PDT by jla
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To: ansel12

The defendants naver showed up...


14 posted on 07/03/2006 7:21:33 PM PDT by craig61a
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To: Jubal Harshaw

"It's my understanding that the "pro 2nd side" in this case, i.e. Mr. Miller, i.e. the plaintiff, was dead by the time this case got to the SCOTUS. Therefore, there was no one to argue the point."



So there was something unusual, thanks.


15 posted on 07/03/2006 7:25:02 PM PDT by ansel12
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To: craig61a

I hold the NRA in incredibly high esteem, I'll bet the next case will one for the books.


16 posted on 07/03/2006 7:27:54 PM PDT by ansel12
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To: Hang'emAll
One of the best to the point articles about the Second Amendment that I have read. Bookmarked for future reference.

I whole heartedly agree with you. It is wonderful!


17 posted on 07/03/2006 7:35:23 PM PDT by basil (.)
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To: Hang'emAll
Copyright (c) 1991 by The New Gun Week and Second Amendment Foundation. Informational reproduction of the entire article is hereby authorized provided the author, The New Gun Week and Second Amendment Foundation are credited. All other rights reserved.

THE UNABRIDGED SECOND AMENDMENT

by J. Neil Schulman

If you wanted to know all about the Big Bang, you'd ring up Carl Sagan, right? And if you wanted to know about desert warfare, the man to call would be Norman Schwartzkopf, no question about it. But who would you call if you wanted the top expert on American usage, to tell you the meaning of the Second Amendment to the United States Constitution?

That was the question I asked Mr. A.C. Brocki, Editorial Coordinator of the Los Angeles Unified School District and formerly senior editor at Houghton Mifflin Publishers -- who himself had been recommended to me as the foremost expert on English usage in the Los Angeles school system. Mr. Brocki told me to get in touch with Roy Copperud, a retired professor of journalism at the University of Southern California and the author of "American Usage and Style: The Consensus".

A little research lent support to Brocki's opinion of Professor Copperud's expertise.

Roy Copperud was a newspaper writer on major dailies for over three decades before embarking on a distinguished seventeen-year career teaching journalism at USC. Since 1952, Copperud has been writing a column dealing with the professional aspects of journalism for "Editor and Publisher", a weekly magazine focusing on the journalism field.

He's on the usage panel of the American Heritage Dictionary, and Merriam Webster's Usage Dictionary frequently cites him as an expert. Copperud's fifth book on usage, "American Usage and Style: The Consensus", has been in continuous print from Van Nostrand Reinhold since 1981, and is the winner of the Association of American Publishers' Humanities Award.

That sounds like an expert to me.

After a brief telephone call to Professor Copperud in which I introduced myself but did "not" give him any indication of why I was interested, I sent the following letter:

*** "July 26, 1991

"Dear Professor Copperud:

"I am writing you to ask you for your professional opinion as an expert in English usage, to analyze the text of the Second Amendment to the United States Constitution, and extract the intent from the text.

"The text of the Second Amendment is, '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.'

"The debate over this amendment has been whether the first part of the sentence, "A well-regulated Militia, being necessary to the security of a free State," is a restrictive clause or a subordinate clause, with respect to the independent clause containing the subject of the sentence, "the right of the people to keep and bear Arms, shall not be infringed."

"I would request that your analysis of this sentence not take into consideration issues of political impact or public policy, but be restricted entirely to a linguistic analysis of its meaning and intent. Further, since your professional analysis will likely become part of litigation regarding the consequences of the Second Amendment, I ask that whatever analysis you make be a professional opinion that you would be willing to stand behind with your reputation, and even be willing to testify under oath to support, if necessary."

My letter framed several questions about the text of the Second Amendment, then concluded:

"I realize that I am asking you to take on a major responsibility and task with this letter. I am doing so because, as a citizen, I believe it is vitally important to extract the actual meaning of the Second Amendment. While I ask that your analysis not be affected by the political importance of its results, I ask that you do this because of that importance.

"Sincerely,

"J. Neil Schulman"

* *** After several more letters and phone calls, in which we discussed terms for his doing such an analysis, but in which we never discussed either of our opinions regarding the Second Amendment, gun control, or any other political subject, Professor Copperud sent me the following analysis (into which I've inserted my questions for the sake of clarity):

***

[Copperud:] The words "A well-regulated militia, being necessary to the security of a free state," contrary to the interpretation cited in your letter of July 26, 1991, constitute a present participle, rather than a clause. It is used as an adjective, modifying "militia," which is followed by the main clause of the sentence (subject "the right," verb "shall"). The right to keep and bear arms is asserted as essential for maintaining a militia.

In reply to your numbered questions:

[Schulman: (1) Can the sentence be interpreted to grant the right to keep and bear arms "solely" to "a well-regulated militia"?;]

[Copperud:] (1) The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people.

[Schulman: (2) Is "the right of the people to keep and bear arms" "granted" by the words of the Second Amendment, or does the Second Amendment assume a preexisting right of the people to keep and bear arms, and merely state that such right "shall not be infringed"?;]

[Copperud:] (2) The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia.

[Schulman: (3) Is the right of the people to keep and bear arms conditioned upon whether or not a well-regulated militia is, in fact, necessary to the security of a free State, and if that condition is not existing, is the statement "the right of the people to keep and bear Arms, shall not be infringed" null and void?;]

[Copperud:] (3) No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence.

[Schulman: (4) Does the clause "A well-regulated Militia, being necessary to the security of a free State," grant a right to the government to place conditions on the "right of the people to keep and bear arms," or is such right deemed unconditional by the meaning of the entire sentence?;]

[Copperud:] (4) The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia.

[Schulman: (5) Which of the following does the phrase "well-regulated militia" mean: "well-equipped," "well-organized," "well-drilled," "well-educated," or "subject to regulations of a superior authority"?]

[Copperud:] (5) The phrase means "subject to regulations of a superior authority"; this accords with the desire of the writers for civilian control over the military.

[Schulman: If at all possible, I would ask you to take into account the changed meanings of words, or usage, since that sentence was written two-hundred years ago, but not to take into account historical interpretations of the intents of the authors, unless those issues can be clearly separated.]

[Copperud:] To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: "Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be abridged."

[Schulman: As a "scientific control" on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence, "A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed."

My questions for the usage analysis of this sentence would be,

(1) Is the grammatical structure and usage of this sentence, and the way the words modify each other, identical to the Second Amendment's sentence?; and

(2) Could this sentence be interpreted to restrict "the right of the people to keep and read Books" "only" to "a well-educated electorate" -- for example, registered voters with a high-school diploma?]

[Copperud:] (1) Your "scientific control" sentence precisely parallels the amendment in grammatical structure.

(2) There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation.

***

Professor Copperud had only one additional comment, which he placed in his cover letter: "With well-known human curiosity, I made some speculative efforts to decide how the material might be used, but was unable to reach any conclusion."

So now we have been told by one of the top experts on American usage what many knew all along: the Constitution of the United States unconditionally protects the people's right to keep and bear arms, forbidding all government formed under the Constitution from abridging that right.

***************************************************************

I was looking at the "View" section of the LA Times from December 18, 1991 today -- an article on James Michener which my wife Kate had saved for me to read -- when the beginning of Jack Smith's column caught my eye: "Roy Copperud had no sooner died the other day than I had occasion to consult his excellent book, 'American Usage and Style: The Consensus.'"

Thus I learned of the death a few weeks ago of Roy Copperud, the retired USC professor whom I commissioned to do a grammatical analysis of the Second Amendment this past summer. (My article was published in the September 13th issue of "Gun Week".) It seems to have been one of the last projects he worked on. It is certainly one of the most important.

Roy Copperud told me afterwards that he, personally, favored gun control, but his analysis of the Second Amendment made clear that its protections of the right of the people to keep and bear arms were unaffected by its reference to militia. This sort of intellectual and professional honesty is sorely lacking in public discourse today.

In my several letters and phone conversations with Professor Copperud, I found him to be a gentleman of the old school. The planet is a little poorer without him.

J. Neil Schulman December 27, 1991

------------------------------ End of Article ---------------------------------------

18 posted on 07/03/2006 7:39:21 PM PDT by Freeper (I was culture in the 60's and now with Clinton "running things" I am suddenly Counter-Culture.)
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To: kerryusama04
Gun control advocates point to the militia clause of the Second Amendment, arguing that it warrants a collective, rather than an individual, right to keep and bear arms.

Of course they do, what can you expect from people that believe Bush created global warming, Hurricane Katrina, the Indonesian Tsunami and after all that, still found time to go to Iraq and kill 100,000 innocent babies and unicorns. Militia is defined by statute. Title 10 USC 311 defines the militia in two parts, organized and unorganized. The organized being all males and females between the ages of 17-45. The organized being the National Guard.

19 posted on 07/03/2006 7:44:44 PM PDT by Ajnin (I)
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To: MilesVeritatis
The New Hampshire State Constitution gets it right also:

[Art.] 2-a. [The Bearing of Arms.]. All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.

[Art.] 10. [Right of Revolution.] Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

20 posted on 07/03/2006 7:50:48 PM PDT by freeandfreezing
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