Why DC's Gun Law Is Unconstitutional





Mr. Young is the editor of The Origin of the Second Amendment, a source document collection cited extensively by the U.S. Fifth Circuit Court of Appeals in its Emerson decision and also by the Court of Appeals for the District of Columbia in its Parker decision. (The District of Columbia vs Heller case is Washington D.C.'s appeal to the U.S. Supreme Court of the Parker decision. ) He is also the author of a recently published definitive history of the Second Amendment entitled, The Founders' View of the Right to Bear Arms. Information on Mr. Young's books and research is available at http://www.secondamendmentinfo.com.

Historical arguments about American bills of rights are major points of discussion in the District of Columbia vs Heller case currently before the U.S. Supreme Court. At issue is exactly what the Second Amendment to the U.S. Constitution means and whether it was proper for the U.S. Court of Appeals for the District of Columbia to overturn Washington D.C.'s handgun ban for violating the Second Amendment. An amicus brief in support of Washington D.C.'s handgun ban dealing with the historical issues in the case was filed by fifteen professional academic historians. One would expect such a brief to be historically accurate, address the Second Amendment in its proper Bill of Rights related context, and include the most relevant figures, statements, and actions for understanding any historical issues in the dispute. However, any such expectation is left largely unfulfilled in the historians' brief.

The historians' Heller amicus brief begins with a look at the English Bill of Rights, which limited only the king, not the legislative branch of government. James Madison indicated during his speech to Congress introducing the Bill of Rights provisions that the comparison was inapplicable. The reason was because their purposes were different. England's Bill of Rights did not limit the legislative branch at all, while the fundamental rights protections in American bills of rights were understood as limiting all branches of government.

The historians' brief bizarrely claims that only two states, Massachusetts and Pennsylvania, actually made their declarations of rights a part of their state constitutions. This statement is factually incorrect. On the contrary, two other states, Vermont and North Carolina, copied verbatim the Pennsylvania Constitution's language making their declaration of rights a part of their state constitution. Also, George Mason specifically stated in the Virginia Ratifying Convention that the 1776 Virginia Bill of Rights, which he was the author of, was part of Virginia's Constitution. Mason's statement was made to illustrate the need for a federal bill of rights based upon the state bills of rights because the proposed U.S. Constitution allowed Congress to violate the rights of the citizens that were protected in the state bills of rights. Other historical materials exist that directly contradict the historians in this matter as well.

In further pursuit of their clearly mistaken view, it is asserted in the historians' amicus that fundamental rights protections, which they recognize are listed within the original states' declarations of rights, were not understood as legally binding commands. This statement is directly contradicted by the original constitutions of Pennsylvania, Vermont, and North Carolina, all of which indicate that their bill of rights ought never to be violated on any pretense whatever. Also contrary to the historians' claim, George Mason indicated in the 1788 Virginia Ratifying Convention that the protections in Virginia's Bill of Rights were paramount to the power of the state legislature. Mason's talking points under discussion at that moment were six specific provisions of Virginia's Bill of Rights, including its Second Amendment predecessor, all of which Mason himself wrote in 1776. In addition, James Madison's directly contrary view that the American state bills of rights were limits on the state legislatures was stated at least twice in his Bill of Rights introduction speech to Congress.

Next, the historians' amicus addresses the Second Amendment-related language within the existing state bills of rights, which they have just mistakenly claimed were not understood as limits on the state governments or part of the state constitutions. These provisions, upon which the Second Amendment's language was directly based, are treated exactly as the Second Amendment's language itself. The historians assert, for example, that Pennsylvania's language--"the people have a right to bear arms for the defence of themselves and the state"--does not refer to a private right. On the contrary, this language cannot relate to anything else. Prior to the formation of this bill of rights language, which was the very first of its kind in a bill of rights context, there had never been any requirement to possess or bear arms for military purposes under the control of government in Pennsylvania during its entire prior colonial history. All organized defense within colonial Pennsylvania had been accomplished solely by armed individuals capable of self-defense associating together for mutual organized defense or, in some cases, the hiring of willing volunteers as troops. Because of the foregoing fact, the 1776 Pennsylvania Constitution contains a provision specifically giving the new state government authority over the men of the state for compulsory military service, but that provision is not in the Bill of Rights. The historians' interpretation that "the people have a right to bear arms" language within the Bill of Rights relates only to compulsory militia matters under state control and not a private right is preposterous. The fact that this provision was written solely as a result of Pennsylvanians taking up their own arms with which they could defend themselves and forming defensive associations to protect their rights against the British is completely lost on the historians.

These fifteen professional academic historians have overlooked something of fundamental importance for understanding the Second Amendment by so quickly dismissing the related provisions that are found in every period state bill of rights, all of which are Revolutionary Era documents. This is largely the result of failure to examine them historically, to trace back their development, to discover their earliest author and normal period usage, or to compare them closely. George Mason was the first American state bill of rights author, as well as the first to place a well-regulated militia reference in such a bill of rights context. Over a year prior to writing the 1776 Virginia Bill of Rights, Mason was using the well-regulated militia language to describe a self-embodying defensive association of all the freemen in Fairfax County, Virginia. Associating for defense depended upon the men having their own arms and, of necessity, had to bypass government control in order to protect the people against unconstitutional actions by government forces and officers. This is how Americans defended themselves while taking all authority away from the existing governments. These defensive actions were taken in many areas long before the advent of hostilities. Mason's well-regulated militia was exactly like the defensive associations often self-embodied among the Pennsylvanians.

George Mason prepared a three-part structure with leading Second Amendment-related language for the Virginia Bill of Rights that was copied into every Revolutionary Era state bill of rights. The historians are well aware of the statements within these "Mason Triad" structures; but they do not notice the universally used three-part structure itself, do not make the obvious connection between the three parts, nor do they identify them as a fundamental proclamation upon which American liberty and free governments are based. They misinterpret bill of rights-related Mason Triads as being all about government control of the militia, even when the militia is not mentioned. These provisions were intended to limit the government, something the historians conveniently though mistakenly denied before examining these provisions. As noted above, in the view of its bill of rights originator, well-regulated militia related to the people being able to self-embody with their own arms for defense against unconstitutional actions of government implemented by force. These universally present state bill of rights Mason Triads always consisted of a leading armed civilian population reference (either well-regulated militia or right to bear arms), followed by a condemnation of standing military forces, with a trailing statement that the military will be under the control of the civil power, the armed civilian population.

After separating all Second Amendment-related language from any possible relationship to private rights, the historians then completely depart from any Bill of Rights history and context to a militia history and context that is inappropriate for a Bill of Rights provision. In virtually every following comment, the historians treat the Second Amendment as entirely related to militia matters under complete state government control. Since when did the Federalists become champions of state powers over the militia? It would be pointless to address all of these professional historians' irrelevant examples, especially since they lead only further and further away from the relevant historical sources clarifying the Second Amendment's actual history and intent.

The historians next address the development in the Federal Convention of the congressional power over the militia because, in their slanted view, that is the spark that ignites all desire for the Second Amendment. What the historians ignore from within the Federal Convention is the very origin and purpose of the struggle to add a bill of rights to the Constitution, just as they ignore the subsequent long political struggle extending until the Bill of Rights provisions seem to miraculously appear out of nowhere in Madison's hands within Congress. What is missing from the historians' account is any mention of the Antifederalist struggle for, development of, or statement of purpose regarding the Bill of Rights provisions that James Madison promised to support in the Virginia Ratifying Convention and later actually took to Congress as the foundation of the U.S. Bill of Rights.

Toward the close of the Federal Convention, George Mason made an attempt to obtain a bill of rights committee. His concern was that the laws of Congress were to be paramount to the states' bills of rights, thus, leaving the individual rights already protected against the states open to violation by laws of the new Congress. The Convention voted down a bill of rights committee. Mason, incensed, refused to sign the Constitution. He became the leading Antifederalist fighting against ratification and for a federal bill of rights throughout the Ratification Period. Mason's bill of rights objections to the Constitution and refusal to sign were widely known and very persuasive. The Federalists argued against the need of any bill of rights consistently throughout the Ratification Period and they opposed bill of rights proposals except where politically forced to accept them. Thus, the historians' amicus brief use of Ratification Era Federalist writings as explanations for bill of rights provisions developed by their Antifederalist opponents are particularly off base. It was the Antifederalists who supported, developed, proposed, and explained the purpose of a bill of rights during ratification, not the Federalists. That the historians do not delve into the bill of rights struggle at all is most revealing. It proves that they do not recognize the bill of rights struggle as the source from which the Second Amendment, a typical Bill of Rights provision, developed.

George Mason, later chairman of an informal Antifederalist committee in the Virginia Ratifying Convention, prepared a complete Bill of Rights to be proposed for the Constitution. His Bill of Rights provisions were all based directly on the Virginia State Bill of Rights with added provisions from those of the other states. Mason's Bill of Rights, including the two-clause version of the Second Amendment he developed, was the model that all four of the last ratifying conventions relied on in developing their bills of rights. It was the provisions of Mason's Bill of Rights, understood by Madison as protecting the great and essential rights, which Madison specifically promised to support and actually took to Congress as the foundation of the first eight amendments to the U.S. Constitution.

This more relevant historical information, completely ignored by the professional historians in their amicus brief, indicates that the Second Amendment became part of the Constitution, not in relation to any specific concern about militia powers as the historians persistently and mistakenly claim, but rather as part of a complete Bill of Rights taken from the pre-existing state bills of rights. Backing up this clear historical evidence, Mason himself wrote that he and his Antifederalist committee had not yet even considered any amendments of the militia powers in the letter he sent with the completed Bill of Rights (including its Second Amendment provision) to the Antifederalist leaders of New York to be used as the model for their proposed Declaration of Rights. The historians' constant claims in the amicus linking the Second Amendment specifically to militia powers arguments are, once again, directly at odds with the most relevant historical facts and the understanding of the most involved Framers.

The Antifederalists' concerns over the militia powers being given to Congress are viewed by the historians as proving that all Second Amendment-related discussion from the period was about state control of the militia. They misinterpret and largely ignore the repeated Antifederalist Mantra that the people or militia would be disarmed. In fact, the only time George Mason, the actual developer of the U.S. Bill of Rights' provisions, is ever mentioned in their brief is to bolster their view that "disarm" means the government failing to arm militia forces under its control. To the historians, all the period arguments about the people being disarmed are unrelated to the private arms of the people being taken away from them or denied to them by the government. The historians treat the common countervailing Federalist Mantra, that the people are armed and can prevent tyranny, in exactly the same way. To them, this only means that the states will control the militia and arm the militia if the states decide it is necessary. Just like an astonishing amount of other relevant historical information, a considerable number of Antifederalist and Federalist Mantra statements are ignored in the historians' amicus that could not possibly fit into the historians' narrow, militia-centric view of the Second Amendment.

The big picture of what occurred in Congress is buried in the historians' legalistic, militia-centric nitpicking about dropping and adding clauses to Madison's Second Amendment proposal. Lost in this fine legal argument is Madison's own understanding of what he was doing, what occurred in Congress, and what Congress produced. Madison noted several times that not many changes had been made to his original propositions for the Bill of Rights as they passed through the House of Representatives. After the Bill of Rights provisions emerged from Congress, Madison understood them to be so similar to Mason's Virginia Convention originals that he was surprised Virginia delayed their adoption. In other words, Madison did not see any significant difference between what he proposed for the first eight amendments, what Congress adopted, and what the Mason led Antifederalists proposed that he had agreed to support, all of which were based on existing restrictions of state government authority. Also, while the Virginia legislature had reservations about the wording of the eventual First Amendment, it did not see any difference between Virginia's desired Second Amendment predecessor and the Second Amendment language that Congress passed. Thus, it is clear that the Second Amendment fulfilled the Antifederalists' desire to guard against tyranny by protecting the private rights to arms.

When the relevant historical information regarding the primary authors, statements, and actions related to the U.S. Bill of Rights are taken into account rather than ignored, the Second Amendment loses all of its confusing and controversial aspects. The Second Amendment becomes one of the plain Bill of Rights provisions in the first eight amendments protecting rights of the people against violation by the Federal Government. It was taken from the plain Revolutionary Era bill of rights provisions protecting rights of the people against violation by the state governments. It does not require a Ph.D. in history to figure this out.

It is not that the amicus historians fail to mention numerous historical facts. The problem is they often miss the significance of such facts in their rush to separate the Second Amendment from its actual private-rights-protecting nature. The professional academic historians' always-slanted interpretations are far from helpful for a clear understanding of a subject that they have helped make much more complex. It becomes evident at the very beginning of the historians' brief that their personally-held views are directly contradicted by the actual views of the two Founders, Mason and Madison, who were most closely associated with development of the provisions within the U.S. Bill of Rights. Some readers may uncritically accept the off-track presentation of these fifteen professional academic historians about the Second Amendment and the related provisions of the original state bills of rights. Those more interested in a clear understanding of the Second Amendment, one that is not in direct conflict with the views of the Founders and historical facts, would do better by relying directly on the period sources that are actually relevant for understanding the development of the U.S. Bill of Rights.

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    Matthew C. Havens - 2/20/2011

    What is also often overlooked is the fact that many frontier families were dirt poor and also only able to afford one firearm per household. We've often heard that gun ownership wasn't as common as it was now - well, obviously, we weren't nearly as wealthy a nation as before. Firearms were shared by the family in early times, and families were larger and often had several generations under one roof.


    David E. Young - 3/5/2009

    For those truly interested in the history of the Second Amendment, I am conducting a detailed and documented analysis of the erroneous statements and misinterpretations found in the professional academic historians' amicus brief supporting Washington DC in the Heller case at the On Second Opinion blog. The URL is http://onsecondopinion.blogspot.com/


    Greg Quark - 7/11/2008

    Excellent point. I wonder how many of those "15 professional historians" wrote something approving about "Arming America"?

    Yes, I do think that being taken by Bellesiles marks you as someone to be looked at dubiously whenever you comment on guns, esp. if you are anti-gun rights.


    Jim Macklin - 4/25/2008

    Mr Young did original research, did not quote current books and sources. Any historian knows you have to go back to the earliest possible material,
    For example, in the early 1970s, I bought a little bluebook printed by the USGPO. There were new amendments to the Constitution and all my textbooks were old. I had a 1948 and a 1955 encyclopedia. As a teenager I read a lot. I knew the Second Amendment very well; so when the new booklet arrived I opened it to read,
    "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."

    Much to my surprise, the new copy had three commas and not one. So I wrote my Congressman and asked for some information. Several month later I got letters in the mail, which had the Congressional Research Office results to my question, "How many commas in the Second Amendment?"

    My old books had one and now there were three.

    Then years later I saw the Bill of Rights photograph on lone. It has three commas. But that raises the question, every book printed before 1960 that I have been able to find has one comma, yet newer editions of the same book were being printed with three.

    Racking my mind, I remember that toward the end of the Eisenhower Presidency plans were made for a A bombproof storage. There was a line about restoring the document's, which means pen and ink was used to repair the Sun damage from nearly 200 years of display.

    Did they add two commas on purposes, was it a mistake? Did the editors of the World Book, and the Britannica as well as Websters and others, all make the mistake and use one comma?

    In 1959 Alaska and Hawaii became States and they each copied the Second Amendment into their new State Constitutions, each used one comma.

    As the comedian would say, "Veerry interesting."


    Jeff Reid - 3/7/2008

    Ah, and he reveals himself in the end...

    "And we won't even deal with the core of the problem, instead arguing over the verbiage of an amendment and a document way past its time that needs to be re-examined and articulated."

    The "document way past its time that needs to be re-examined and articulated." is the Bill of Rights! by the way people.

    And the person who wrote this is a law school professor, draw from that what you will. Myself I'd prefer if law school professors actually supported the Bill of Rights; all of it, not just the parts that they liked.


    J. E. Olson - 3/7/2008

    The bane of scholarship is that it gets published. Once it's out there for all to read and critique, it "stands on it's own bottom" quite independently of the person behind it.

    The entire world (not just those at the Faculty Club) can judge whether it is good research and sound analysis or result-oriented trash. DR. Bellesiles, Ph.D. is the most recent academic fraudster to show the world that a Ph.D. and a tenured full Professorship provide no immunity from ideology-induced intellectual dishonesty.

    The dozen historians who filed the amicus brief have to face the same test - irrespective of their past demonstrations of knowledge (Ph.D.'s, etc.), does THIS paper deserve an "A" or an "F"?


    David L Smith - 2/28/2008

    One of the striking things to me personally was the part about probate records showing that most guns were old and broken. This reflected a basic ignorance of weapon culture on the part of both the author and reviewers. Briefly, when a man grows too old or infirm to use arms, it is common practice that he pass his good arms on to his children and grandchildren while he lives, and takes vicarious pleasure that his grandson killed a buck with his old rifle. On the other hand useless old worn out and broken guns are kept for the memories they hold, and when he dies they are passed on to his children who cherish them as reminders of him. Useless but precious. Thus, of course probate records, assuming some were examined, contain mainly old and useless weapons. This basic lack of understanding about a culture common to at least 40 million Americans, makes me wonder what similar misunderstandings we might hold about --say --Mayan culture. Was that really a “household god” or the equivalent of an Underdog Action Figure? That is not as silly as it sounds, I was disturbed years ago by a teacher telling my daughter that kachina dolls were something little Indian children played with. I am part Indian.


    Dave J. Moore - 2/27/2008

    By the way, the guy that did as much as anybody to discredit Bellesiles' work was Clayton Cramer. His book is "Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie". The subtitle is a bit misleading: Cramer's thesis is that Americans armed themselves from the very start; guns have always been a part of American culture. Cramer actually did the primary source digging into letters, probate records, and newspaper archives that Bellesiles claimed to have done.

    The title plays off Bellesiles' "Arming America", which argued that guns were actually unusual in early American, and only slowly became popular.

    Since Cramer has an MA in history, and is an adjunct professor thereof, you can't exactly call him an "amateur historian". However, he is often cited as such, and he lists his primary profession as "software engineer". He's also an amateur astronomer.

    Despite his semi-pro standing, Cramer's book is the one accepted as authoritative, while Bellesiles' is the one everybody wants to forget.


    David L Smith - 2/26/2008

    For any who are unaware, please allow a layman to explain the reference to Dr. Bellesiles, from a layman’s viewpoint.
    Dr Bellesiles perpetuated what may be the most obvious academic fraud of recent decades. The Exulted High Priesthood of Professional Historians swallowed it hook, line, and sinker. We ignorant laymen warned of the obvious flaws and were told to shut-up. We were not qualified to speak. Your profession tied its credibility to his and went over the cliff in flames with him. Perhaps the NEXT generation of Historians can reclaim professional credibility on this subject. Until then it is amazing and amusing that Historians DARE to appeal to their ‘professionalism’ on this subject. But a few seem determined to dig a deeper hole for your profession with this brief. You had better begin to police your own if you hope to ever regain any credibility.



    John R. Maass - 2/25/2008

    Folks might be interested in seeing Montana's take on guns and the Union at an article here:
    http://www.washingtontimes.com/apps/pbcs.dll/article?AID=/20080225/NATION/757685551/1002


    Earl D. Quammen - 2/23/2008

    The following explains our God-given, Inherent and Inalienable Natural Right as it was INTENDED by the men whom framed our Constitution:

    "If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government . . . The citizens must rush tumultuously to arms..."

    - Alexander Hamilton, Federalist #28.
    http://gunshowonthenet.com/FederalistPapers/FedNo28.html

    "The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution; and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part two of its authors performed in framing the constitution, put it very much in their power to explain the views with which it was framed..."

    - Chief Justice John Marshall, U.S. Supreme Court, Cohens v. Virginia (1821).
    http://gunshowonthenet.com/2ALaw/CohensvVirginia.html

    "Also, the conditions and circumstances of the period require a finding that while the stated purpose of the right to arms was to secure a well-regulated militia, the right to self-defense was assumed by the Framers."

    - John Marshall, U.S. Supreme Court Chief Justice. [As quoted in Nunn v. State, 1 Ga. 243, 251 (1846); State v. Dawson, 272 N.C. 535, 159 S.E.2d 1, 9 (1968).]
    http://gunshowonthenet.com/AfterTheFact/NunnVsState.html

    “Afforded us by God & Nature”
    http://gunshowonthenet.com/2ALEGAL/AffordedGodNature.html

    “Agreed to found our Rights upon the Laws of Nature....”
    http://gunshowonthenet.com/2ALaw/LawsofNature.html

    “...Which the Laws of Nature and of Nature's God entitle them...”
    http://gunshowonthenet.com/2ALaw/God&;Nature.html

    Life, Liberty and Property
    http://gunshowonthenet.com/2ALaw/LifeLibertyProperty.html

    George Washington: Concerning Arms in the hands of the People
    http://gunshowonthenet.com/SecondAmend/GeorgeWashingtonArms.html

    "the overruling law of self preservation"
    http://gunshowonthenet.com/2ALEGAL/SelfPreservation.html

    'for the common defence' (?)
    http://gunshowonthenet.com/2ALEGAL/Precedent/SenateJournal09091789.html

    "Rights of the citizen declared to be --"
    http://gunshowonthenet.com/2ALEGAL/CitizensRight.html

    "The Right to Self Defense"
    http://gunshowonthenet.com/AfterTheFact/RightofDefense.html

    "The right of self-defence never ceases. It is among the most sacred, and alike necessary to nations and to individuals."

    - President James Monroe, Nov. 16, 1818 message to the U.S. House and Senate. [Journal of the Senate of the United States of America, November 17th, 1818.]
    http://gunshowonthenet.com/AfterTheFact/Senate11171818.html

    Right to Keep and Bear Arms - Historical Directories:

    Origins
    http://gunshowonthenet.com/2ALEGAL/Origins.html

    Precedent
    http://gunshowonthenet.com/2ALEGAL/Origins&;Precedent.html

    After The Fact
    http://gunshowonthenet.com/AfterTheFact/Contents.html

    Amendment II and the Law
    http://gunshowonthenet.com/2ALaw/Contents.html

    "No, surely, No! they meant to drive us into what they termed rebellion, that they might be furnished with a pretext to disarm and then strip us of the rights and privileges of Englishmen and Citizens."

    - George Washington, March 1, 1778 letter to Bryan Fairfax, Valley forge.


    Earl D. Quammen - 2/23/2008

    The REAL ORIGINAL INTENT behind the Second Amendment:

    The Shay's Insurrection, "These the Legislature could not infringe, without bringing upon themselves the detestation of mankind, and the frowns of Heaven", Jan. 12, 1787
    http://gunshowonthenet.com/2ALEGAL/Precedent/ShaysInsurrection01121787.html

    Commonwealth of Massachusetts, "and shall obtain an order for the re-delivery of such arms", Feb. 16, 1787
    http://gunshowonthenet.com/2ALEGAL/Precedent/CommonwealthOfMass02161787.html

    Journals of the Continental Congress, "...impolitic and not to be reconciled with the genius of free Govts...", Feb. 19. 1787
    http://gunshowonthenet.com/2ALEGAL/Precedent/ContCongress02191787.html

    Letters of Delegates to Congress, "...An Act to disarm and Disfranchise for three years...", Feb. 27th, 1787
    http://gunshowonthenet.com/2ALEGAL/Precedent/AnActToDisarm02271787.html

    Letters of Delegates to Congress, "...this act has created more universal disgust than any other of Government...", March 6, 1787
    http://gunshowonthenet.com/2ALEGAL/Precedent/IrvineToWilson03061787.html

    Journals of the Continental Congress, "That a large body of armed insurgents, did make their appearance...", March 13, 1787
    http://gunshowonthenet.com/2ALEGAL/Precedent/ContCongress03131787.html

    James Madison to Thomas Jefferson, "a great proportion of the offenders chuse rather to risk the consequences of their treason, than submit to the conditions annexed to the amnesty", March 19, 1787
    http://gunshowonthenet.com/2ALEGAL/Precedent/MadisonToJefferson03191787.html

    A Proclamation, "and of being again renewed to the arms of their country, and once more enjoying the rights of free citizens of the Commonwealth", June 15, 1787
    http://gunshowonthenet.com/2ALEGAL/AProclamation06151787.html

    The Debates in the Federal Convention, "...let the citizens of Massachusetts be disarmed. . . . It would be regarded as a system of despotism.", Aug. 23, 1787
    http://gunshowonthenet.com/2ALEGAL/Precedent/FedDebates08231787.html

    James Madison to Thomas Jefferson, "A constitutional negative on the laws of the States seems equally necessary to secure individuals agst. encroachments on their rights", Oct. 24, 1787
    http://gunshowonthenet.com/2ALEGAL/Precedent/MadisonToJefferson10241787.html

    "The people cannot be all, & always, well informed. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty. We have had 13. states independent 11. years. There has been one rebellion. That comes to one rebellion in a century & a half for each state. What country before ever existed a century & half without a rebellion? & what country can preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon & pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is it's natural manure. Our Convention has been too much impressed by the insurrection of Massachusetts: and in the spur of the moment they are setting up a kite to keep the hen-yard in order. I hope in God this article will be rectified before the new constitution is accepted."

    - Thomas Jefferson, Nov. 13, 1787 letter to William S. Smith.
    http://gunshowonthenet.com/2ALEGAL/Precedent/JeffersonToSmith11131787.html

    That's RIGHT people, it was intended to SECURE the God-given, Natural, Inherent and Inalienable Right of those that HAD transgressed the law. ALL 'gun control laws' are REPUGNANT to the U.S. Constitution.


    chris l pettit - 2/21/2008

    Wait...you mean the notoriously conservative and ideologically based 5th Circuit?

    As an attorney, I love when people with no education in law try to interject political arguments into a legal setting. THe history is fine...the right wing nuts will spin it their way while the left wing nuts will spin it theirs. What really irks me is when someone like the bozo above decides that a court where someone practices is an impartial one and proof of someones credibility when the next moment they will be whinging until they are blue in the face that the judges are "activist" when it doesnt suit their ideological purpose.

    We have an ideologically right wing Supreme Court that has not had a true liberal on it since the rise of the Rehnquist Court. Both sides will make their little arguments and it won't matter. Law school professors like myself will look at the reasoning that is not even the basis for the decisions (the ideological dicta is) and try and teach it as though it is to continue the myth that our legal system actually works and is not a total facade.

    And we won't even deal with the core of the problem, instead arguing over the verbiage of an amendment and a document way past its time that needs to be re-examined and articulated.

    CP


    Randall Herrst - 2/21/2008

    Dear Lisa:

    I am sure that Mr. Young did not have the space to explain every last detail of the 2nd Amendment, which is why he did not cover "well-regulated" and "militia" in the article above. I believe his books cover those topics, in case you are interested.

    In addition, I have done a fair amount of personal research on the historical denotations and connotations of those words, so please allow me to mention a couple of relevant points.

    "Well-regulated" is a term of art within the firearms/military community--technical jargon as it were. It is not the simple sum of its parts, and the concept of word combinations that mean something other than the simple sum of the parts is widely recognized (i.e. "high seas" or "hot dog"), including the entry for "well-regulated" in the Oxford English Dictionary (considered to be the most important English-language dictionary in the world). In OED, "well-regulated" has 6 usages, none of which states or even implies "strong central government control" as you might prefer to beleive. All the usages refer to self-control or mental discipline or some variant of accuracy. Plug those meanings into the 2nd Amendment and they make perfect sense.

    You may also wish to read "Federalist Papers" #26, paragraph 6, wherein Alexander Hamilton uses "well-regulated" in reference to the degree of skill of the militia. Skill, accuracy, and practice have nothing to do with central government mandate.

    "Militia" is another widely misunderstood word, which many people such as yourself deceptively self-define as "National Guard or Reserves". Historically, it could not mean those entities, since neither existed at that time. However, the Founders had a pretty clear structural view that there were 3 levels of armed forces: 1. Regular or standing army--full time, paid soldiers; 2. Select militia--part time, paid soldiers (similar to National Guard or Reserves); 3. Militia--part time, unpaid soldiers/civilians. The 2nd Amendment used the broadest group, militia, so as to ensure that as many people possessed arms as possible. They even made comments to that effect at that time. You can find those quotes without too much trouble.

    The militia is the entire body of the people who use their private arms in defense of self, community, or nation. A perfect example of this was Hurricane Andrew, which left many communities without any public services (power, telephone, police) for as long as 75 days. The local people took up their private arms and stood watch over their neighborhoods and limited or prevented murder, rape, robbery, looting, arson, and rioting. Similar results have occurred in other emergencies such as the 1975 Albuquerque police strike and the 1992 Los Angeles riots.


    John R. Maass - 2/19/2008

    Good point @ Bellesiles. Academics couldn't wait to praise the book when it came out.


    John R. Maass - 2/19/2008

    A handgun can be a semiautomatic, Lisa.


    Paul Milligan - 2/18/2008

    Well, if I'm not very much mistaken, "Mr. Young is the editor of The Origin of the Second Amendment, a source document collection cited extensively by the U.S. Fifth Circuit Court of Appeals in its Emerson decision and also by the Court of Appeals for the District of Columbia in its Parker decision."

    Seeing as his book is "cited extensively by the U.S. Fifth Circuit Court of Appeals in its Emerson decision", that would seem to lend him a certain relevance. how many times were YOU cited in a major gun case, Lisa ? How many books have YOU written on the subject of the 2nd Amendment ? Please list them here.



    John H. Lederer - 2/18/2008

    "love how this guy accuses a bunch of professional academic historians of failing to understand the significance of a historical context. Where exactly did his PhD come from that gives him the legitimacy to make such a claim?"


    It isn't just a matter of context though is it? He also lists factual errors.

    It does not take a history PhD to read teh Vermont and North Carolina Constitutions. They eitehr have the language or they don't. If they do, then despite the impressive array of certificates on the wall, the historians embarrassingly got their research wrong.

    An "appeal to authority" regarding historians and the Second Amendment lost its vigor about the time that the profession awarded the Bancroft prize to Dr. Bellesiles.




    David E. Young - 2/18/2008

    For anyone who would like to obtain a copy of this article with citations to my research, simply click on the link at the top of the article and email a request for same to the address at the bottom of the webpage.

    A copy of the article with cites to The Origin of the Second Amendment and The Founders' View of the Right to Bear Arms will be included in a return email.


    Lisa Kazmier - 2/18/2008

    I love how this guy accuses a bunch of professional academic historians of failing to understand the significance of a historical context. Where exactly did his PhD come from that gives him the legitimacy to make such a claim?

    After all, we're not talking about an odd rogue historical position but a brief filed by a number of people.

    I guess Rush and his cohorts can buy that this guy has equal standing to theirs but such a claim seems rather dubious at best to me.

    And what about "well regulated militia" should be explained away anyhow? Bork and the like wax so poetically about "framer's intent" and the intent to have some control over the acquisition of weapons seems pretty clear, even without the added firepower or handguns, semi-automatics and automatics.

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