States Rights?

Great Debates
1

The following was posted on another board in response to the 9th Circuit Court decision on gun control, debated here on a different thread. Without getting into the gun control issue, I’d be interested in discussions of the thesis presented by the poster (who is a young Air Force second lieutenant who graduated last summer from the Air Force Academy, and whose analyses of constitutional law in other threads there have been IMHO very much on target.

I tend to disagree with him on the points he makes here, but I’d like to see someone with more background in constitutional law comment on them:

[quote]
The problm is, as stated before, the entire nature of the constitution hs change since it was written due to several key amendments. Originally, it was solely a limitation on the federal government. The First Amendment represents what Jefferson referred to as our inalienable rights, and they can esentially be boiled down to the right to think freely, express yourself, and meet peacefully with like minded people. The Second Amendment was written for the benefits of the states. The founders, as stated, didn’t trust the Federal government wth a permanent army, and so th original idea was that the states would operate militias, both to serve the feds when called up by Congress nd to defend the rights of the states. As such, the states controlled the militias, and defined who qualified as a member and organized the forces. The 2nd Amendment existed so that, let’s say New York was in a disgreement with the feds, the federal government could not ban guns in New York as a means of subverting the state militias fom defending themselves. Where you are wrong, Phoenix, is that the Federal government does not set the standard for what is and is not a milita, that responsibility rests with the states. Here, a state, not the feds, is dictating wht kind of firearms may be owned. Because the 2nd Amedment exists fo their protection, and since they, not the feds, are barring certain guns, they are entitled to do so.

So, why this standardfor the 2nd but not the 1st amendment? Because, the 14th Amendment extends the protections of the rights of citizens to the state level as well. As I stated before, the 1st Amendment represents our basic rights, the 2nd amendment however exists to protect states rights. There are no ifs, ands, or buts attached to Amendment 1, but there is clear statement of why the 2nd Amendment exists. It is illogical to view the states as prohiited from acting because of an amendment designed to protect them.[/qipte]

2

IANAL, but I would think that the fact that amendments 3-10 are also about individual rights would mean something; they were all presented together in one package.

3

The phrase “states rights” just makes my skin crawl. States don’t have rights any more than they have facial hair.

4

The whole of the Bill (of Rights) is a declaration of the right of the people at large or considered as individuals… It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of.
(Albert Gallatin of the New York Historical Society, October 7, 1789)

The right of the people to keep and bear arms has been recognized by the General Government; but the best security of that right after all is, the military spirit, that taste for martial exercises, which has always distinguished the free citizens of these States…Such men form the best barrier to the liberties of America.
(Gazette of the United States, October 14, 1789.)
No Free man shall ever be debarred the use of arms.
(Thomas Jefferson, Proposal Virginia Constitution, Jefferson Papers)
The right of the people to keep and bear…arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country.
(James Madison, Annals of Congress [June 8, 1789])
A militia, when properly formed, are in fact the people themselves… and include all men capable of bearing arms.
(Richard Henry Lee, Additional Letters from the Federal Farmer [1788])
What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty… Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.
(Rep. Elbridge Gerry of Massachusetts, spoken during floor debate over the Second Amendment. Annals of Congress [August 17, 1789])
To disarm the people - that was the best and most effectual way to enslave them.
(George Mason)
Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms.
(James Madison)
Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States.
(Noah Webster)
But if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights
(Alexander Hamilton)
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation. . . Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.
(James Madison)
As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.
(Tench Coxe)
Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American… The unlimited power of the sword is not in the hands of either the federal or state government, but, where I trust in God it will ever remain, in the hands of the people.
(Tench Coxe)
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.
(William Rawle, 1829)
I ask, sir, what is the militia? It is the whole people, except for few public officials.
(George Mason)
The Constitution shall never be construed…to prevent the people of the United States who are peaceable citizens from keeping their own arms.
(Samuel Adams)
To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike especially when young, how to use them.
(Richard Henry Lee, 1788)
The great object is that every man be armed and everyone who is able may have a gun.
(Patrick Henry)
The people are not to be disarmed of their weapons. They are left in full possession of them.
(Zachariah Johnson)
Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?
(Patrick Henry)
The best we can hope for concerning the people at large is that they be properly armed.
(Alexander Hamilton)
That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of The United States who are peaceable citizens from keeping their own arms.
(Samuel Adams)
And what country can preserve its liberties, if its rulers are not warned from time to time that this people preserve the spirit of resistance? Let them take arms…The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants.
(Thomas Jefferson)
Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.
(Patrick Henry)
The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.
(Thomas Jefferson)
The very atmosphere of firearms everywhere restrains evil interference - they deserve a place of honor with all that is good.
(George Washington)
A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise, and independence to the mind. Games played with the ball and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks.
(Thomas Jefferson)
The supposed quietude of a good mans allures the ruffian; while on the other hand, arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside…Horrid mischief would ensue were one half the world deprived of the use of them.
(Thomas Paine)
Those, who have the command of the arms in a country are masters of the state, and have it in their power to make what revolutions they please. [Thus,] there is no end to observations on the difference between the measures likely to be pursued by a minister backed by a standing army, and those of a court awed by the fear of an armed people.
(Aristotle)
No kingdom can be secured otherwise than by arming the people. The possession of arms is the distinction between a freeman and a slave. He, who has nothing, and who himself belongs to another, must be defended by him, whose property he is, and needs no arms. But he, who thinks he is his own master, and has what he can call his own, ought to have arms to defend himself, and what he possesses; else he lives precariously, and at discretion.
(James Burgh)
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.
(Thomas Jefferson)

5

Excellent.

6

Isn’t it odd that the fervor to preserve the rights of the second amendment extend only to the private ownership of handguns, and rifles? What difference could that tiny distinction have in the modern world? The maintenance of the militia has no ardent support in America today. The right to hold and own anti-aircraft weapons has no great lobby, nor does the right to own nuclear weapons.

The purpose of the second amendment was to maintain the ability to prosecute armed rebellion against the government of the United States as a viable alternative. It was not for the promotion of hunting, or crime fighting. It was the hard held basic necessity for the victory of individuals over the most powerful government in the world. And it was necessary, and possible because of a unique set of military circumstances that had not been true, and are again not true in the world. The people owned the largest cache of the most advanced military weapons in the world, privately.

So, you have to decide what you are supporting. If you want to support the original intent of the second amendment, you have to support the immediate reestablishment of local militias, in the control of only local government (the states) with the full military weaponry of the current federal army, and the immediate dispersal of that military force. The amendment doesn’t support any other action. Nuclear weapons too, by the way. It won’t accomplish the aims of the founders unless they too are in private hands.

You see, times change. The world won’t go back to what it was in 1776. If there were tanks parked in private garages, and F-14’s under private control, and a stinger missile in every closet, the world would not be a more stable place. As it is written, that is what the second amendment requires. Is it any wonder that it has not been enforced? We can’t enforce it, or the nation would dissolve in a hail of death and destruction. So, we have promulgated a bunch of unrealistic crap as alternative readings of the founder’s intent.

Do you think that the founder’s really wanted us to have a bunch of militarily unimportant weapons, unsuitable for armed conflict with any actual military force, but completely suitable for killing each other? Do you think that the founders wanted nuclear weapons in every state? The founders did not know the nature of twentieth century warfare. Without space-based support, federal tank and air forces are unquestionably superior to those of the National Guard. Does that mean that the States should have their own satellite services?

Perhaps the founder’s intent can be salvaged, by disbanding the US Army, Navy, Marines, Air Force, and Coast Guard. But it can certainly not be salvaged without doing so. But the Constitution is not a suicide pact. The world changed, and the interests of the people have changed as well. The independent frontiersman with a rifle was able to defend his home against the government with the cooperation of a few neighbors. He cannot do that now, no matter what weapons he has. The neighbor isn’t in the militia. There aren’t any militias. But there are lots of armed gangs. Was that what the founders meant by “well regulated militia?”

It may be time to accept the cold hard facts of military reality. We have created the most irresistible military force in the history of the race, and pretending that my handgun has some value as a deterrence to tyranny while it still exists is patent nonsense. You don’t want me to have nukes, take my word for it. You don’t want the United States to divide its military forces into fifty parts, and never allow central command structure to exist.

So what do we want? We better think of something pretty soon, because hand held weapons are getting more and more powerful, and while they may never become militarily significant, they are already a dismally important part of life in America. But we ought to quit pretending that the Second Amendment offers any hope of defense against the tyranny of government. It doesn’t. It can’t. That world ended with automatic weapons, and mechanized armor.

Tris

7

I dunno; Maine sure looks like it could use a shave.

8

:smiley:

[Maine accent]

Don’t know much about money. I know about oysters, though.

[/Maine accent]

9

What, in the sense that she can cut and paste the same old quotes reprinted on hundreds and hundreds of pro-gun sites, right down to the odd use of parenthetical attribution, without contributing even one independent thought? Color me unimpressed.

As to the OP, I believe your acquaintance has it exactly right, Poly. It’s inescapable that the purpose of the Second Amendment was to assure the continued viability of the state militias. The only questions are what affect it has outside the militia context and wheter it provides any guarantee at all to the states. The Ninth Circuit opinion actually provides a very good historical analysis showing that the founders were thinking of states’ rights when they passed the amendment. If the states no longer want to have militias, that’s their problem.

10

That should be “whether it provides any guarantee at all against the states.”

11

Nuts to that! Why can’t I own an atomic bazooka? I want my atomic bazooka!

12

Thanks for the comments, folks, and especially Tris. and Minty.

Housekeeping: Would an itinerant Mod. checking this thread be so kind as to put a close-quote code at the end of my OP? I was pressed for access time (the timer on the public-access computer I was on was counting down the seconds I had left) and I neglected to do so, with the result of an unclear-as-to-who-said-what OP.

13

I agree that Susanne’s quotes are great. They make it clear: the militia, at the time the bill of rights was written, was “the people”. Or rather, those of the people who were free, male, aged about 16 and up, and possessed of guns. The right of individual citizens to bear arms was seen as a bulwark vs. tyranny.

14

I’m not so sure that the right to own guns is not still a bulwark vs. cirtain kinds of tyranny. A despoic police chief or other low level official will find it easier to push unarmed people around, violate their rights, etc. An ordinary handgun, rifle, or shotgun isn’t much with which to defy the full might of the US armed forces, but it is seldom the full might of the US armed forces that the average citizen will find himself facing, it’s much more likely to be a beat cop, a plainclothes cop, a police chief, a town councilman, a local bureaucrat, a mayor, or whatever.

Even more likely is the need to defend oneself vs. a street criminal or burgler. The founding fathers do not seem to have mentioned this. Perhaps they took it so for granted that they thought it needed no mention. But how can anyone justify denying citizens the right to own guns to defend themselves vs. criminals? Seems to to me to be a needed, easily justifiable right.

15

Poly wrote:

Oh, sorry. Instead of what I said, I meant to say that your friend was right, and that when Tris and Minty would post, they would be right as well. And whoever comes in next to support the idea of state tyranny will deserve another hardy round of special gratitude.

16

Or perhaps you could’ve said “this thread appears to be based upon an assumption with which I disagree; however, as to the legal points made by the OP’s friend, here’s what I think…”

17

Lib, for the most part I tend to agree with you – states have powers (derived from the consent of the governed). But what I was looking for was the analysis of the law as it is presently understood to apply.

You know my stance that DOMA is unconstitutional. But until I can convince five people from Scalia, O’Connor, Kennedy, Ginsberg, Rehnquist… that my view is accurate constitutional law – it’s not. Not because I’m not correct in my analysis, but because the people with the power to make my analysis into the enforced law of the country are declining to do so.

And that is what I thanked those people for.

18

Your basic premise is very flawed, since Americans could own almost any weapon for nearly 200 years.

It is not “hypothetical” on what would happen if Americans could own major weapons, it was, in fact, what was perfectly legal until very very recently.

America was not a bad place to live from 1789 until 1968, and seemed to be as stable as any other place in the world.

The intent of the founding fathers, was that the citizenry be better armed that the US Army, and it was , until very recently. My own family owned and carried repeating rifles and handguns, long before the army started carrying them.

My dad could have bought and carried a machine gun any time he wanted to, but a regular soldier could not.

Jefferson and Madison even solicitied and asked private citizens for help in solving foreign problems, esp those private citizens who happened to own battleships.

The founding fathers not only did not mind private citizens to own major weapons, they relied on them.
Almost any weapon imaginable, except for penguns, sawed off shotguns, and machine guns were perfectly legal for any american citizen to own or keep in his garage until 1968.

“All” weapons were legal for everyone from 1789 until 1934. I dont remember any major problems with unstability because of citizens owning tanks, mortars, battleships, or bazookas before they were recently outlawed.

19

Susanann wrote:

Nu na hi du na tlo hi lu i.

20

Not at all. The intent of the founders was that the state militias be better armed (or at least capable of being better armed) than the federal army. See, it’s right there in the introductory clause of the amendment: "A well regulated Militia being necessary to the security of a free State . . . "