From: TKopp <[T--o--p] at [mixcom.mixcom.com]>
Newsgroups: talk.politics.guns
Subject: Encyclopedia of American Constitution
Date: 11 Jan 1994 00:46:06 -0500

Hi people...
 
Found a somewhat more modern "authoritative" interpretation of The Second.
It contains points on both sides of the argument.  The final sentence,
however, I feel is invalid.

The Encyclopedia is a scholarly interpretation of dozens (4 volumes worth)
of Constitutional topics.

The following is the text and bibliography of an article called "SECOND
AMENDMENT" printed in the Encyclopedia of the American Constitution, (c)
1986 Macmillan Publishing.  All rights are theirs, not mine.
All emphasis (capital letters) is mine - I will emphasize major points on
both sides of the argument.  I assume responsibility for all typos.


BEGIN QUOTE

However controversial the meaning of the Second Ammendment is today, it was
clear enough to the generation of 1789.  The amendment assured to the people
"their private arms," said an article which received James Madison's
approval and was the only analysis available to Congress when it voted. 
Subsequent contemporaneous analysis is epitomized by the first American
commentary on the writings of William Blackstone.  Where Blackstone
described arms for personal defense as among the "absolute rights of
individuals" at COMMON LAW, his eighteenth-century American editor commented
that this right had been constitutionalized by the Second Amendment.  Early
constitutional commentators, including Joseph Story, William Rawle, and
Thomas M. Cooley, described the amendment in terms of a republican
philosophical tradition stemming from Aristotle's observation that basic to
tyrants is a "mistrust of the people; hence they deprive them of arms."
Political theorists from Cicero to John Locke and Jean-Jacques Rousseau also
held arms possession to be symbolic of personal freedom and vital to the
virtuous, self-reliant citizenry (defending itself from encroachment by
outlaws, tyrants, and foreign invaders alike) that they deemed indispensable
to popular government.

These assumptions informed both sides of the debate over RATIFICATION OF THE
CONSTITUTION.  While Madison, in The Federalist #46 assured Americans that
they need never feer the federal government because of "the advantage of
being armed, which you possess over the people of almost every other
nation," opponents of ratification such as Patrick Henry declaimed "The
great principle is that every man be armed.  Everyone who is able may have a
gun."  Samuel Adams proposed that "the Constitution never be construed . . .
to prevent the people of the United States who are peaceable citizens from
keeping their own arms."  As much of this debate used the word "militia," IT
IS NCESSARY TO REMEMBER THAT IN THE EIGHTEENTH CENTURY THE MILITIA WAS
COEXTENSIVE WITH THE ADULT MALE CITIZENRY.  BY COLONIAL LAW EVERY HOUSEHOLD
WAS ***REQUIRED*** TO POSSESS ARMS AND EVERY MALE OF MILITARY AGE WAS
REQUIRED TO MUSTER DURING MILITARY EMERGENCIES, BEARING HIS OWN ARMS.  The
amendment, in guaranteeing the arms of each citizen, SIMULTANEOUSLY
guranteed arms for the militia.
  In contrast to the original interpretation of the amendment as a personal
right to arms is the TWENTIETH CENTURY VIEW THAT IT PROTECTS ONLY THE
STATES' RIGHT TO ARM THEIR OWN MILITARY FORCES, INCLUDING THEIR NATIONAL
GUARD UNITS.  This view stresses the Anti-Federalists' bitter opposition to
the provisions of Article I, section 8, authorizing a standing army and
granting the federal government various powers over state militias.  Both
textual and historical difficulties preclude acceptance of this exclusively
STATES' RIGHTS view.  For instance, Madison's proposed organization for the
provisions of the BILL OF RIGHTS was not to append them, but to interpolate
each amendment into the Constitution following the provision to which it
pertained.  Had he viewed the amendment as modifying the military-militia
clauses of the Constitution (which he strongly defended against
Anti-Federalist criticism, he would have appended it to those clauses in
section 8.  Instead, he planned to place what are now the First and Second
Amendments in Article I, section 9, along with the original Constitution's
guarantees against bills of attainder and ex post facto laws and against
suspension of habeas corpus.
  The states' rights interpretation SIMPLY CANNOT BE SQUARED WITH THE
AMENDMENT'S WORDS: "RIGHT OF THE PEOPLE."  IT IS IMPOSSIBLE TO BELIEVE that
the First Congress used "right of the people" in the First Amendment to
describe an individual right (Freedom of Assembly), but sixteen words later
in the Second Amendment to describe a right vested exclusively in the
states.  Moreover, "right of the people" is used again to refer to personal
rights in the Fourth Amendment and the Ninth Amendment, and the Tenth
Amendment expressly distingueishes "the people" from "the states."

  Interpreting the SECOND AMENDMENT AS A GUARANTEE OF AN INDIVIDUAL RIGHT
DOES NOT FORECLOSE ALL GUN CONTROLS.  THE OWNERSHIP OF FIREARMS BY MINORS,
FELONS AND THE MENTALLY IMPAIRED -- AND THE CARRYING OF THEM OUTSIDE THE
HOME BY ANYONE -- MAY BE LIMITED OR BANNED.  Moreover, the government may
limit the types of arms that may be kept; there is no right, for example, to
own artillery or automatic weapons, or the weapons of the footpad and
gangster, such as sawed-off shotguns and blackjacks.  Gun controls in the
form of registration and licensing requirements are also permissible SO LONG
AS THE ORDINARY CITIZEN'S RIGHT TO POSSESS ARMS FOR HOME PROTECTION IS
RESPECTED.

					Don B. Kates, Jr.

Bibliography
Halbrook, Steven  1984  "That Every Man Be Armed:
	The Evolution of a Constitutional Right." Albuquerque:
	University of New Mexico Press.

Kates, Don B. Jr.  1983 "Handgun Prohibition and the
	Original Meaning of the Second Amendment" Michigan
	Law Review 82:204-273

Malcolm, Joyce  1983  "The right of the People to Keep
	and Bear Arms: The Common Law Tradition." Hastings
	Constitutional Law Quarterly 10:385-314

Shalhope, Robert E.  1982  "The ideological Origins of
	the Second Amendment" Journal of American History
	69:599-614

**********************************
END QUOTE

As for myself, I'm pro-gun.  Much of what Kates Jr. says makes
sense...though I don't understand the basis for his last paragraph.
 
TJ

c
-- 
Thomas J. Kopp                                               [T--o--p] at [mixcom.com]
Milwaukee, WI                                        70523,[5--0] at [compuserve.com]