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]