From: [d--ar--y] at [indirect.com] (David T. Hardy)
Newsgroups: alt.philosophy.objectivism,alt.individualism,alt.conspiracy,alt.politics.libertarian,talk.politics.guns,alt.society.civil-liberty,alt.politics.usa.constitution,az.politics
Subject: Thomas Cooley on the Second Amendment
Date: 21 Nov 1995 00:02:24 GMT

Professor Cooley was not a contemporary of the Framers (except in the
most literal sense--his life overlapped that of Jefferson by a few
years) but he
was one of the most respected--if not most respected--legal scholars of
the late nineteenth century. In his General Principles of
Constitutional Law (3d ed. 1898, pp.298-99) he discussed the Second
Amendment in terms of individual rights, expressly rejecting claims
that the amendment simply exists to sanction some government-organized
militia. To him, the amendment's thrust was essentially: (1)
individuals have a right to own arms; (2) from this, a militia can be
formed and (3) it is the duty of the government to ensure that it is
"well regulated" and not left to be an amorphous mass. But the failure
of the government to carry out its duty under (3) does not in any way
impinge on the fundamental right proclaimed in (I):

"The second amendment ... like most other provisions in the
Constitution, has a history. It was adopted, with some modification and
enlargment, from the English Bill of Rights of 1688, where it stood as
a protest against the arbitrary action of the overturned dynasty in
disarming the people, and as a pledge of the new rulers that this
tyrannical action should cease...."

"The right is general. It may be supposed from the phraseology of this
provision that the right to keep and bear arms was only guaranteed to
the militia; but this would be an interpretation not warranted by the
intent. The militia, as has been explained elsewhere, consists of those
persons who, under the law, are liable to the performance of military
duty, and are officered and enrolled for service when called upon. If
the right were limited to those enrolled, the purpose of the guarantee
might be defeated altogether by the action or the neglect to act of the
very government it was meant to hold in check. The meaning of provision
undoubtedly is that the people, from whom the militia must be taken,
shall have the right to keep and bear arms, and they need no permission
or regulation of law for this purpose. But this enables the government
to have a well regulated militia; for to bear arms implies something
more than mere keeping; it implies the learning to handled them in a
way that makes those who keep them ready for their efficient use; in
other words, it implies the right to meet for voluntary discipline in
arms, observing in so doing the laws of public order."
__________________________________________________________________
"Deed and thought, reality and) [d--ar--y] at [indirect.com] <David T. Hardy>
ideal, success and redemption,)  http://www.indirect.com/www/dhardy
these are forces that will    )_____________________________________
never come to grips with each other. Yet in historical reality it is
not the ideal, goodness, or morality that prevails--their kingdom is
not of this world--but rather decisiveness, energy, presence of mind,
practical skill." Oswald Spengler, Neitzsche and his Century.