Okay, first of all, of course, the Constitutional Convention has nothing
to do with the Second Amendment, which was only created and talked about
after the constitution was accepted. Most of the notes on the actual
process and discussion seem to come from notes taken by James Madison.
Saul K. Padover
To Secure These Blessings: The Great Debates of the Constitutional
Convention of 1787; New York, Washington Square Press, 1962. It's about
the Constitutional Convention, and does not go into the amendments. But
it does (p. 204-208) include a discussion by the convention on militias
vs. select militias vs. "a real military force."
Max Farrand
The Records of the Federal Convention of 1787; New Haven, Yale
University Press, 1911. This is more about the Constitutional Convention
than about the amendment process, but it does include discussion on the
necessity of a bill of rights. In particular, in Vol. 3, p. 290, someone
(I brainlessly forgot to jot down *who*) said "With respect to a bill of
rights, had the government been formed upon principles tuly federal, as
I wished it, legislating over and acting upon the states only in their
collective or political capacity, and not as individuals, there would
have been no need for a bill of rights, as far as related to the rights
of individuals, but only as to the rights of the states. But the
proposed constitution being intended and empowered to act not only on
states, but also immediately on individuals, it renders a recognition
and a stipulation in favour of the rights both of states and of men,
not only proper, but in my opinion absolutely necessary."
With regards to the adoption of the bill of rights, most of the
discussion on the right to keep and bear arms focussed on the religious
exemption, with a little discussion about the need (or lack of same) for
a standing army.
Bernard Schwartz
The Bill of Rights: a documentary history
New York, Chelsea House Publishers, 1971.
The bill of rights was presented to Congress by Madison pretty much as
accepted. They were sent to a select committee to hash out the details.
The discussion of this committee with regards to what became the second
amendment is on pages 1108 to 1109. Of interest is that the exemption
for religious scruples seemed to imply that the federal government was
*requiring* each individual to be armed, or that it was a duty at the
very least. The members also discussed a standing army, with some
members claiming that a standing army was absolutely essential, and if
you can't trust a federal government, why create it?
Annals of Congress, Volume 1, 1st Congress, 1st-2nd session, 1789-1790
This would seem to be a major source for actual discussion on the
adoption of the bill of rights. It is not well indexed, and is just
crying to be put on a CD-ROM. The discussion of the select committee is
on pages 749-751. Discussion in the House, I think, is 765-757.
One reason that the exemption for religious beliefs was taken out is
that some folks believed that religion was on the downswing, and leaving
the exemption in would allow unscrupulous individuals to get out of
militia duty.
The first 'regulation' of the militia is begun on page 1076, with a proposal
from President Washington, for houw the militia could be effectively
maintained.
Books that I intend to look at tomorrow:
AUTHOR Rutland, Robert Allen, 1922-
TITLE The birth of the Bill of rights, 1776-1791.
PUBLISHED New York, Collier Books [1962]
DESCRIPT. 252 p. 18 cm.
SER. NOTE Collier books, AS134.
SUBJECT United States --Constitution --Amendments --1st
AUTHOR St. John, Jeffrey.
TITLE Forge of union, anvil of liberty : a correspondent's report on
the first federal elections, the first federal Congress, and
the Bill of Rights / Jeffrey St. John ; foreword by Warren E.
Burger.
PUBLISHED Ottawa, Ill. : Jameson Books, c1992.
DESCRIPT. xxx, 288 p. ; 23 cm.
AUTHOR Maclay, William, 1737-1804.
TITLE Journal of William Maclay, United States senator from
Pennsylvania, 1789-1791. Edited by Edgar S. Maclay, A.M.
PUBLISHED New York, D. A. Appleton and company, 1890.
DESCRIPT. xiv p., 1 L., 438 p. front. (port.) 23 cm.
SUBJECT United States. Congress (1st : 1789-1791)
United States --Politics and government --1789-1797.
NOTE Originally issued, c1880, in abridged form under title, "Sketches
of debate in the first Senate of the United States, in 1789-90-
91."
ADD. AUTHOR Maclay, Edgar Stanton, 1863-1919.
AUTHOR Boykin, Edward, 1889-
TITLE The wit and wisdom of Congress; a treasury of anecdotes &
epigrams, quips & puns, nuggets of historical debate & gems of
eloquence, all handpicked from the annals of Congress, 1789 to
the present.
PUBLISHED New York, Funk & Wagnalls [1961]
DESCRIPT. 420 p. 22 cm.
SUBJECT United States. Congress --Anecdotes.
And something that might be of interest to somebody, but not to me, is
the only book that showed up for the history of the United States
militia:
AUTHOR Mahon, John K.
TITLE History of the militia and the National Guard / John K. Mahon.
PUBLISHED New York : Macmillan ; London : Collier Macmillan, c1983.
DESCRIPT. 374 p., [16] p. of plates : ill. ; 25 cm.
SER. NOTE The Macmillan wars of the United States.
SERIES Macmillan wars of the United States.
SUBJECT United States --Militia --History.
United States --National Guard --History.
NOTE Bibliography: p. 323-356.
Includes index.
Okay, here's the last promised 'installment.'
From
United States Code Annotated
Constitution
Amendments
1 to 4
West Publishing Co.
1972
Amendment II-Right to Bear Arms
Notes of Decisions
Construction
Particular regulatory schemes
Power to regulate
Purpose
Right to keep and bear arms
This is not complete; I took out most of the ones that talk
about how it only limits the Federals and not the States, as
well as anything for felons.
1. Construction
In interpreting and applying this amendment, purpose of
amendment to assure continuation and render possible the
effectiveness of the militia must be considered. U.S. v.
Miller, Ark.1939, 59 S.Ct. 816, 307 U.S. 174, 83 L.Ed. 1206.
The preservation of the public peace and the protection of
the people against violence are constitutional duties of the
legislature, and the guarantee of right to keep and bear
arms is to be understood and construed in connection and in
harmony with these constitutional duties. State v. Dawson,
1968, 159 S.E.2d 1, 272 N.C. 535.
The arms referred to in this amendment are the arms used in
defending the state and civil liberty and not pistols, bowie
knives, brass knuckles, billies, and such other weapons as
are usually employed in brawls, street fights, duels, and
affrays, and are only habitually carried by bulies,
blackguards, and desperadoes, to the terror of the community
and the injury of the state. State v. Workman, 1891, 14 S.E.
137, 35 W.Va. 367, 14 L.R.A. 508.
The word "arms," in the connection we find it in the
Constitution of the United States, refers to the arms of a
militiaman or soldier, and the word is used in its military
sense; the arms of the infantry soldier are the musket and
bayonet; of cavalry and dragoons, the sabre, holster
pistols, and carbine; of the artillery, the field piece,
siege gun, and mortar, with side arms. English v. State,
1872, 35 Tex. 476
This clause declares a general right, leaving it for other
more specific constitutional provision or to legislation to
provide for the preservation and practical security of such
right, and for influencing and governing the judgment and
conscience of all legislators and magistrates, who are thus
required to recognize and respect such rights. Opinion of
Justices, 1859, 14 Gray, Mass. 620.
2. Purpose
The right to keep and bear arms is not a right conferred on
the people by the federal constitution, and the only
function of this amendment precluding infringement of right
of people to keep and bear arms is to prevent the federal
government, and the federal government only, from infringing
that right. Cases v. U.S., C.C.A.Puerto Rico 1942, 131 F.2d
916, certiorari denied 63 S.Ct. 1431, 319 U.S. 770, 87 L.Ed.
1718, rehearing denied 65 S.Ct. 1010, 324 U.S. 889, 89 L.Ed.
1437.
3. Right to keep and bear arms.
The right of "bearing arms for a lawful purpose" is not a
right granted by the Constitution nor is it in any manner
dependent upon that instrument for its existence. U. S. v.
Cruikshank, La.1875, 92 U.S. 553, 2 Otto 553, 23 L.Ed. 588.
Constitutional right to keep and bear arms applies only to
the right of the state to maintain militia and not to
individual's right to bear arms. Stevens v. U. S.,
C.A.Ky.1971, 440 F.2d 144.
In absence of some showing that possession or use of sawed-
off shotgun bore some reasonable relationship to
preservation or efficiency of well regulated militia,
constitutional provision relating to right of citizens to
bear arms did not guarantee defendant the right to keep and
bear such sawed-off shotgun. U. S. v. Casson, D.C.Del1968,
288 F.Supp. 86.
Right of individual to bear arms is constitutionally
guaranteed. Hutchinson v. Rosetti, 1960, 205 N.Y.S.2d 526,
24 Misc.2d 949.
The right to keep and bear arms is not a right conferred
upon the people by this amendment. Application of Cassidy,
1944, 51 N.Y.S.2d 202, 268 App.Div. 282, reargument denied
63 N.Y.S.2d 840, 270 App.Div. 1046, affirmed 73 N.E.2d 41,
296 N.Y. 926.
This amendment created no right to bear arms which right
long antedated the adoption of this Constitution. Moore v.
Gallup, 1943, 45 N.Y.S.2d 63, 267 App.Div. 64 affirmed 59
N.E.2d 439, 293 N.Y. 846, motion granted 60 N.E.2d 439, 293
N.Y. 846, motion granted 60 N.E.2d 847, 294 N.Y. 699.
This amendment does not apply to municipal legislation, nor
assure privilege of any individual to keep arms. Photos v.
City of Toledo, 1969, 250 N.E.2d 916, 19 Ohio Misc. 147.
Right to bear arms does not apply to private citizens as an
individual right. Harris v. State, 1967, 432 P.2d 929, 83
Nev. 404, 30 A.L.R.3d 1412.
Any statute or construction of common-law rule which would
amount to a destruction of right to bear arms would be
unconstitutional. State v. Dawson, 1968, 159 S.E.2d 1, 272
N.C. 535.
4. Power to regulate
Right to keep and bear arms is not right conferred on people
by Federal Constitution, but rather, such Constitution
prevents federal government, and federal government only,
from infringing that right. Eckert v. City of Philadelphia,
D.C.Pa.1971, 329 F.Supp. 845.
Though governed by this amendment, Congress may regulate
interstate firearms so long as regulation does not impair
the maintenance of the active, organized militias of the
states. Burton v. Sills, 1968, 248 A.2d 521, 53 N.J. 86, 28
A.L.R.3d 829, appeal dismissed 89 S.Ct. 1486, 394 U.S. 812,
22 L.Ed.2d 748.
A gun control regulation which does not impair maintenance
of state's active, organized militia is not in violation of
either the terms or the purposes of this amendment. Brown v.
City of Chicago, 1969, 250 N.E.2d 129, 42 Ill.2d 501.
Right of individuals to bear arms is not absolute, but is
subject to regulation. State v. Dawson, 1968, 159 S.E.2d 1,
272 N.C. 535.
5. Particular regulatory schemes
National Firearms Act, 26 U.S.C.A. [I. R.C.1939] §§ 2720-
2733, 3260-3263, did not violate this amendment in absence
of showing of any reasonable relationship between such
weapons and a well-regulated militia. U. S. v. Miller,
Ark.1939, 59 S.Ct. 816, 307 U.S. 174, 83 L.Ed. 1206.
26 U.S.C.A. §§ 5861 and 5871, proscribing offense of and
penalty for possession of an unregistered firearm, are not
violative of right to bear arms as guaranteed by this
amendment. U. S. v. Williams, C.A.Tex. 1971, 446 F.2d 486.
Gun Control Act of 1968, 18 U.S.C.A. § 921 et seq., does not
violate this amendment guarantee. U. S. v. Lauchli, C.A.Ill.
1971, 444 F.2d 1037.
While this amendment does not prevent enactment of a law
against carrying concealed weapons, in construing such a
statute it should be kept in mind that it is aimed at
persons of criminal instincts and for the prevention of
crime and not against the use of weapons in protection of
person or property. People v. Liss, 1950, 94 N.E.2d 320, 406
Ill. 419.
Journal of William Maclay
1789-1791
May 5, 1790:
"The assumption of State debts having failed, every other
thing that can be thought of will be brought forward to
increase the volume of the national debt.... In fact, to
overwhelm us with debt is the endeavor of every creature in
office, for fear, as there is likely to be no war, that if
there should be no debt to be provided for there would be no
business for the general government with all their train of
officers."
May 1, 1789:
"After the House adjourned the Vice-President took me to one
side, declared how much he was for an efficient Government,
how much he respected General Washington, and much of that
kind. I told him I would yield to no person in respect to
General Washington; that our common friends would perhaps
one day inform him that I was not wanting in respect to
himself [Adams]; that my wishes for an efficient Government
were as high as any man's, and I begged him to believe that
I did myself great violence when I opposed him in the chair,
and nothing but a sense of duty could force me to it. He got
on the subject of checks to government and the balances of
power. His tale was long. He seemed to expect some answer. I
caught at the last word, and said undoubtedly without a
balance there could be no equilibrium, and so left him
hanging in geometry."
I didn't manage to find anything in here about the right to
keep and bear arms. I didn't even manage to find the
"passing reference" to the Bill of Rights mentioned in the
book below. (These books are in different libraries, so I've
been unable to double check.)
The Birth of the Bill of Rights, 1776-1791
Timeframe of Bill of Rights:
Madison announced his intention of introducing the subject
of amendments on May 25, 1789. This was "3 months after"
congress was scheduled to begin its session. Representatives
really seemed to consider this a boring bit of legislation,
and unimportant, to the point where they kept putting it
off. Madison wanted a Committee of the Whole, but it was
given to a special committee, for recommendations. This was
on July 21, six weeks after it was first discussed, and when
Madison finally re-introduced it to the House. The special
committee consisted of John Vining of Delaware, Madison,
Roger Sherman. The report was presented to the House a week
later and tabled. Again, it seems as though they felt there
were far more important things to discuss. But it was
debated for "over a week" in the Committee of the Whole, and
forwarded to the Senate on August 24, as 17 proposed
amendments.
The Senate discussed it on September 2. Twelve amendments
remained, and it was sent back to the House. Maclay mentions
the Bill of Rights on page 131 of his book, but only in
passing.
p. 217
The House took up the proposed changes on September 19,
1789, and decided that they'd better create a joint
conference of the Senate and House. The committee consisted
of:
House: Madison, Sherman, Vining
Senate: Oliver Ellsworth, Charles Carroll, William Paterson.
By September 25, both houses had approved the twelve
amendments. They were forwarded to the President for
transmission to the states.
The Senate debated in private, so the only place you'll find
that is in journals, I'd suspect. The House debates were carried in the
Congressional Record (which was a private enterprise then; I
don't know if it still is or not).
And added for your amusement:
Amendment III-Soldiers Denied Quarter in Homes
Notes of Decisions
1. Nature of right
This amendment's prohibition against unconsented peacetime
quartering of soldiers protects one aspect of privacy from
governmental intrusion. Katz v. U. S., Cal.1967, 88 S.Ct.
507, 389 U.S. 347, 19 L. Ed.2d 576.
The Housing and Rent Act of 1947, 50 U.S.C.A.App., former §
1881 et seq., did not violate this amendment, on ground that
it was an incubator and hatchery of swarms of bureaucrats to
be quartered as storm troopers on the people. U. S. v.
Valenzuela, D.C.Cal.1951, 95 F.Supp. 363.
The right to smoke marijuana is not fundamental to the
American scheme of justice necessary to an Anglo-American
regime of ordered liberty and is not within "zone of
privacy" formed by penumbras of this amendment, and Amends.
1, 5 and 9. Com. v. Leis, 1969, 243 N.E.2d 898, 355 Mass.
189.
In regards to the quote from Max Farrand's Records, about
the need for a Bill of Rights, it was Luther Martin,
Baltimore, March 19, 1788.
Jerry
[j--r--y] at [teetot.acusd.edu] (Finger/Reply for PGP Public Key)
------
"There's a storm out on the ocean;
God bless the ships at sea.
There's a storm down in my lover's heart,
Oh, God bless me."
-- Nanci Griffith, Storms