The Dual Edges of the Second Amendment Sword

[Guest Phantom6]

Below is an excerpt from an article by David T. Hardy entitled The Second Amendment and the Historiography of the Bill of Rights as published in the University of Virginia Journal of Law and Politics (1987). It is this article that has been cited in the 2001 decision of the 5th U.S. Circuit Court of Appeals when they wrote:

We have found no historical evidence that the 2nd amendment... applies only to members of a select militia while on active duty. All of the evidence indicates the the Amendment like other parts of the Bill of Rights applies to and protects individual Americans.

-5th Circuit Us Court of appeals. 2001

VI. Conclusion

The second amendment to the Constitution had two objectives. The first purpose was to recognize in general terms the importance of a militia to a free state. This recognition derives from the very core of Classical Republican thought; its "constituency" among the Framers was found primarily among conservatives, particularly Virginia's landed gentry. Indeed, prior to Virginia's proposal, no federal ratifying convention had called for such recognition. The second purpose was to guarantee an individual right to own and carry arms. This right stemmed both from the English Declaration of Rights and from Enlightenment sources. Its primary supporters came from the Radical-Democratic movement, whether based among the small farmers of western Pennsylvania or the urban mechanics of Massachusetts. Only by incorporating both provisions could the first Congress reconcile the priorities of Sam Adams with those of George Mason, and lessen the "disquietude" both of the Pennsylvania and Massachusetts minorities and those of the Virginia and New York majorities. The dual purpose of the second amendment was recognized by all early constitutional commentators; the assumption that the second amendment had but a single objective is in fact an innovation born of historical ignorance.

The distinction between the second amendment's purposes enables us to avoid the pitfalls of the collective rights view, which would hold that the entire amendment was meant solely to protect a "collective right" to have a militia. The militia component of the second amendment was not meant as a "right", collective or individual, except in the sense that structural provisions (e.g., requirements that money bills originate in the House, or military appropriations not exceed two years) are considered collective "rights." Indeed, the militia component was meant to invoke the exertion of governmental power over the citizen, to inspire it to require citizens to assume the burdens of militia duty. In this respect it differs radically from any other provision of the Bill of Rights. To read what was a recognition of an individual right, the right to arms, as subsumed within the militia recognition is thus not only permitting the tail to wag the dog, but to annihilate what was intended as a right. As the one provision of the Bill of Rights which encourages rather than restricts governmental action, the militia component's terms were necessarily vague and its phrasing a reminder rather than a command.

The right to arms portion of the second amendment, in contrast, was meant to be a prohibition, as fully binding as those in the remainder of the Bill of Rights. Madison intended that the second amendment be read as incorporating the individual rights proposals put forward by the Pennsylvania minority and by Sam Adams and the New Hampshire convention. Judging from contemporary discussion in Massachusetts and Pennsylvania, he succeeded. If either clause can be accorded primacy, it is the right to arms clause; only in Virginia, at the eleventh hour of the ratification process, was a militia clause appended to a federal bill of rights proposal.

Reading the entirety of the second amendment as militia-related, based upon some contemporary references to the need for constitutional recognition of the militia concept, confuses the purpose of one provision with the text of another. The second amendment, in short, cannot be explained simply as a last avowal of the classical ideal, as "the last act of the Renaissance." Rather, it is a bridge between the decline of that ideal and the rise of the liberal democracy. Part of the second amendment looks backward to the worlds of Polybius and Machiavelli; but part looks forward, to the worlds of Jefferson and Jackson. Only a recognition of the dual nature of the second amendment will enable us to give meaning to the aspirations of Thomas Jefferson and Samuel Adams as well as those of George Mason.

To read the article in it's entirety and I would strongly suggest that any gun owner do so, follow this link. After all, as Mr. Hardy put it, the 2nd Amendment had a dual purpose which was recognized by each and every one of the early constitutional commentators (read Constitutional Framers as well as members of the Judiciary) and the assumption that it had one and only one objective is born out of ignorance of historical fact.

So the next time some liberal anti-gun loudmouth proclaims as they generally will that the 2nd Amendment's sole function was to provide a "national guard" of sorts, disarm them by saying "You are correct" and then quickly add "but only if you remove the idea that it's only function is to provide for that militia". Then hammer them as you let the other shoe drop with these historical facts behind the development of this Amendment to our most precious Constitution, a document which PRESERVES and GUARANTEES our rights as individuals.

"If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be." ---Thomas Jefferson, 1816.

[DaveTN]

So the next time some liberal anti-gun loudmouth proclaims as they generally will that the 2nd Amendment's sole function was to provide a "national guard" of sorts, disarm them by saying "You are correct" and then quickly add "but only if you remove the idea that it's only function is to provide for that militia". Then hammer them as you let the other shoe drop with these historical facts behind the development of this Amendment to our most precious Constitution, a document which PRESERVES and GUARANTEES our rights as individuals.

It’s moot. You won’t win that argument. Strap on a firearm and walk down the street. Unless you have purchased the privilege from your state you will be arrested.

<O:p</O:p

If you can be arrested for the simple act of bearing arms…. You do not have that right.

[molonlabetn]

It’s moot. You won’t win that argument. Strap on a firearm and walk down the street. Unless you have purchased the privilege from your state you will be arrested.

<O:p</O:p

If you can be arrested for the simple act of bearing arms…. You do not have that right.

As I mentioned elsewhere... one can strap on a firearm and walk around all they want on their own property.

All that a permit does is give that person permission to leave their property.

[towerclimber37]

As I mentioned elsewhere... one can strap on a firearm and walk around all they want on their own property.

All that a permit does is give that person permission to leave their property.

well said.

If you were, even as a LEO, to come on to my property and tell me to disarm, I would first ask to see your warrant. if you didn't serve it before you decide to 'not play nice'...well then I guess someones' going to end up having words said over him.

If you provide the warrant..thats a totally different story.

[Guest Phantom6]

DaveTn, you are really hung up on the permit problem and it is a problem but one that is not the main thrust of this courts published conclusion. The 5th Circuit has simply defined the two objectives of the 2nd Amendment. There are a bunch of Anti's out there that don't understand what the 2nd Amendment is all about and out of ignorance which due to their lack of a willingness to study the courts findings borders on the realm of stupidity. That is what I meant when I said

So the next time some liberal anti-gun loudmouth proclaims as they generally will that the 2nd Amendment's sole function was to provide a "national guard" of sorts, disarm them by saying "You are correct" and then quickly add "but only if you remove the idea that it's only function is to provide for that militia". Then hammer them as you let the other shoe drop with these historical facts behind the development of this Amendment to our most precious Constitution, a document which PRESERVES and GUARANTEES our rights as individuals.

As long as there is a 2nd Amendment no one, but no one is going to tell me that while I am a citizen in good standing with no prohibitions (no felony convictions and/or no crazy checks from the Social Security disability office or otherwise adjudicated mentaly incompetant by a recognized and authorized authority) here that I can not own a firearm.

[DaveTN]

DaveTn, you are really hung up on the permit problem and it is a problem but one that is not the main thrust of this courts published conclusion.

I don’t have any problem with permits. I have a problem with trying to tie them to the 2<SUP>nd</SUP> or any other right.

A permit has nothing to do with whether or not you can own firearms or what you do with them on your own property.

The 5th Circuit has simply defined the two objectives of the 2nd Amendment. There are a bunch of Anti's out there that don't understand what the 2nd Amendment is all about and out of ignorance which due to their lack of a willingness to study the courts findings borders on the realm of stupidity. That is what I meant when I said

Almost all of the Federal courts have ruled that the 2<SUP>nd</SUP> is not an individual right. The ruling you are posting about is 6 years old. How has that worked for the people of the 5<SUP>th</SUP>? Do they still need a permit to bear arms?

I’m not an anti, but I am crystal clear that the 2<SUP>nd</SUP> is not an individual right. I was arrested and jailed for no crime other than having a loaded gun in my car in a state that does not even have permits. I tried to argue the second and was immediately shot down because of the rulings of the 7<SUP>th</SUP>. Does understanding the court rulings and how they will be applied make me an anti, stupid or ignorant?

As long as there is a 2nd Amendment no one, but no one is going to tell me that while I am a citizen in good standing with no prohibitions (no felony convictions and/or no crazy checks from the Social Security disability office or otherwise adjudicated mentaly incompetant by a recognized and authorized authority) here that I can not own a firearm.

No one in Tennessee is trying to as long as you are on your property. But our gun owning brothers in Chicago can’t own handguns. If a right is recognized it is recognized for everyone in the country; otherwise it is not a right.

[molonlabetn]

If a right is recognized it is recognized for everyone in the country; otherwise it is not a right.

Why not expand that to the world? There are places where there is no right to free-speech, or hardly any basic liberties...

Does that mean that rights, in general, are a theory?

If they aren't a theory, then by definition, they are absolute. Only infringed to the point allowed by the people who choose to exercise them or not based on the perceived sacrifices involved.

I believe that rights exist, but also recognize the fact that no promise was ever made that exercising them would be universally easy and un-opposed (if it were, they would not be considered so valuable).

I think it is sad that your ordeal has disillusioned you. But it is simply a fact of life that right does not always win... it is not a fact, however, that right is only what government says it is.

[Guest Boomhower]

DaveTn.....Not trying to call you out in any way, but I was wondering if you were ready to share your story with all of us here on TGO. You had stated once before that when you feel like typing all of it, you'd share. We are all aware of you stance on the 2nd, and you have brought up some very good & interesting points to ponder on. I just thought it might help everyone to understand your strong stance of the issue in every topic involving the 2nd.