2nd Amendment question

[legaleagle_45]

No where in here does it reference anything about protecting home and country. In fact there is no language that that would imply anything like this.

Consider the language "shall not be infringed". The wording suggests a preexisting right which is being protected, rather than a creation or grant of a new right. With that said, one must look at the nature of the right to arms which was protected from infringement.

Perhaps the most influential legal treatise of the late colonial era was Blackstone, Commentaries on the Laws of England. Blackstone described the right to arms as protecting and enhancing two distinct natural rights, the natural right of resistance and the natural right of self preservation. The first is, for lack of better terminology, the militia right, while the self preservation aspect refers to self defense... a single right with a dual purpose. You can read the relevant portion of Blackstone here:

http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp

How did this dual right arise? Perhaps the best treatment of this subject is by Joyce Lee Malcolm in her book To Keep and Bear Arms: The Origins of an Anglo-American Right . To abbreviate the book down to a few sentences, the right evolved out of a duty to keep arms for puposes of national defense. England began the militia sytem in the 800's under Alfred the Great. Various laws called the "Assieze of Arms" delineated what arms individual MUST own to fulfill this duty. Naturally enough, the weapons that they were required to keep for militia purposes, were also employed for personal purposes, such as self defense, hunting and the like. The use of the weapons for said personal purposes off set the financial burden of the legal obligation, making it more acceptable to the people at large, giving rise to an expectation that they could use these weapons for personal purposes. When this expectation was violated during the reign of Charles II and James II, the result was a Glorious Revolution and the affirmation of this expectation as a right delineated in the English Bill of Rights, circa 1689.

Ok, now to get to the founders... the issue arose due to the expansive authority given to the federal government over the militia in the proposed, but not yet ratified constitution. Debates in the various state ratifying conventions raised some concerns which gave rise to a demand for a Bill of Rights. The inclusion of the 2nd and its wording is based upon these debates. The state of Virginia was perhaps the most influential and it is certainly the most detailed transcript of the proceedings. These debates can be read here:

http://www.constitution.org/rc/rat_va.htm

The dates where the militia was debated by such luminaries as Patrick Henry, James Mason and James Madison begins on June 14, 1788 about half way down here:

http://www.constitution.org/rc/rat_va_12.htm

and continues over 2 more days.

Hope that helps...

 

[jersey_emt]

Here's my quick and simple interpretation of the Second Amendment:

"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."

An armed militia is necessary to ensure the security of the free USA. Hence, the right of the people to keep and bear Arms shall not be infringed. Denying the right of the people to bear arms does away with the militia, hence, doing so can compromise the security of the free USA.

 

[ImprobableJoe]

I am currently gathering material for a project and have run into a question that I’m having difficulty finding an answer to. I know the caliber of members on this board and figure this is the best place to find genuinely substantive answers. The question is this; I have always had just a passing familiarity with the 2nd Amendment and had always associated the 2nd Amendment with the right to self protection and the right to preserve home and country against enemies both foreign and domestic. Well now that I am actually trying to write something on this I went and looked up the 2nd Amendment which reads;

“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.”

No where in here does it reference anything about protecting home and country. In fact there is no language that that would imply anything like this.

I have read a number of editorials, opinions and other treatments on the 2nd Amendment and this association with the idea that one of its purposes is to defend against enemies foreign and domestic is pretty common. The problem is that I don’t see where this comes from or where this is established.


Can someone pleas enlighten me as to where this connection is made in our founding documents.

Maybe it isn't. The 2nd Amendment is probably the dumbest thing the authors of the Constitution ever came up with. It doesn't even work as basic grammar, let alone sound legal reasoning.

So, look to the case law. Gun ownership rights are founded in case law, not the Bill of Rights.

 

[Hugh Damright]

Regarding the term "free State", here are some selected definitions from Webster's 1828 & 1913 dictionaries:

FREE - In government, not enslaved; not in a state of vassalage or dependence; subject only to fixed laws, made by consent, and to a regular administration of such laws; not subject to the arbitrary will of a sovereign or lord; as a free state, nation or people.

STATE - A political body, or body politic; the whole body of people united under one government, whatever may be the form of the government ...

More usually the word signifies a political body governed by representatives; a commonwealth; as the States of Greece; the States of America. In this sense, state has sometimes more immediate reference to the government, sometimes to the people or community. Thus when we say, the state has made provision for the paupers, the word has reference to the government or legislature; but when we say, the state is taxed to support paupers, the word refers to the whole people or community.
...
In the United States, one of the commonwealth, or bodies politic, the people of which make up the body of the nation, and which, under the national constitution, stands in certain specified relations with the national government, and are invested, as commonwealth, with full power in their several spheres over all matters not expressly inhibited. &hand; The term State, in its technical sense, is used in distinction from the federal system, i. e., the government of the United States.

COMMONWEALTH - An established form of government, or civil polity; or more generally, a state; a body politic, consisting of a certain portion of men united by compact or tacit agreement, under one form of government and system of laws. This term is applied to the government of Great Britain, which is of a mixed character, and to other governments which are considered as free or popular, but rarely or improperly, to an absolute government. A commonwealth is properly a free state; a popular or representative government; a republic; as the commonwealth of Massachusetts. The word signifies strictly, the common good or happiness; and hence, the form of government supposed best to secure the public good.