Dec. 11, 2006
Lawyers, Guns And History
Legal Analyst Andrew Cohen On Recent News Over The Right To Bear Arms
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The Second Amendment was back in the news last week. In Washington, there was yet another hearing in a high-profile lawsuit brought to challenge the District of Columbia’s sweeping prohibition against handguns. And from New York came word that the city’s aggressive approach toward gun sellers was paying dividends even as it generated controversy. The usual rhetoric, on both sides of the issue, was issued by tribunes convinced all in the righteousness of their particular cause.
If the struggle between gun rights and gun control advocates seems as eternal as the battle between lions and hyenas, it is. At least, in America. In a solid new book: “A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America," Ohio State University history professor Saul Cornell argues that “the original understanding of the Second Amendment was neither an individual right of self-defense nor a collective right of the states, but rather a civic right that guaranteed that citizens would be able to keep and bear those arms needed to meet their legal obligation to participate in a well-regulated militia.”
In other words, Cornell posits that neither side in the epic battle has got it exactly right when it comes to trying to figure out the meaning of the Second Amendment’s grotesquely ungrammatical phrase: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The question now is whether the historian’s scholarship enters into the bloodstream of the gun debate and, if so, whether it changes either the temperature of the fight or the attitude of the judges who ultimately must referee the match.
Being the busy bureaucrats and zealous lawyers that they are, I’m guessing that the folks on New York Mayor Michael Bloomberg’s "criminal justice" staff haven’t studied Cornell’s thesis or figured out how exactly it will help or hurt their cause. That cause right now is suing gun sellers (both in- and out-of-state) who are accused of violating the City’s ban on bad gun sales. Six such out-of-state gun dealers agreed last week to allow a court-appointed specialist to monitor their business to prevent straw sales and other illegal activity. At the same time, 12 more dealers were sued, the New York Times reported, as the result of a program that has attracted both admirers and detractors around the nation.
Meanwhile in the nation’s capital, in a case that attracted far more attention from right-wing bloggers than it did to major media outlets, District of Columbia officials went to federal appeals court to defend their attempted ban on all pistols (and not just sawed-off shotguns or other weapons that typically have been banned in jurisdictions around the country). At the heart of that case is whether the Second Amendment confers an “individual” or "collective" right to bear arms. Paging Professor Cornell! — who argues that it does neither and whose on-the-one-hand/on-the-other-hand book should be read by the D.C. Circuit Court judges involved in the case no matter which side of the great divide they happen to fall.
The good professor sees the 2nd Amendment as little more than a hotly-debated, much-negotiated (and for that reason quite opaque) memorialization of the competing and sometimes conflicting views about guns held by delegates from the ratifying states. When James Madison began to look at recommendations to the Constitution from some of the states he saw, in Cornell’s words “that “all five (of the recommending) state conventions had recommended that the Constitution include a prohibition on standing armies in peacetime; four demanded some type of explicit protection for the right to bear arms; two affirmed the principle of state control of the militia; and two proposed limits on the use of the militia outside the state.”
Moreover, at the time, Cornell writes, “The right to keep or use firearms outside the context of the militia … did not appear on Madison’s comprehensive list of possible amendments.” That would come later, apparently during the Senate debate over which initial amendments to the Constitution would which then be submitted back to the States for ratification.
"The adoption of the Second Amendment," Cornell writes, "did not settle the meaning of the right to bear arms, nor did it end the widening disagreement over the appropriate role of the militia." See? Our government even in its nascence was generally incapable of addressing head-on the thorniest issues.
Cornell concludes his worthwhile analysis by saying that the "individual/collective rights dichotomy model … may have outlived its usefulness" in the struggle over how to define the scope of the Second Amendment — then and now. Unfortunately for us — and certainly for any federal court judge who has the misfortune of landing one of these no-win cases — Cornell doesn’t really suggest a new "paradigm" that might solve the gun debate in this country. But can you blame him? I mean, if Madison and his iconic gang couldn’t get that job done why would anyone expect a lowly ole history professor to do so?
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See all 75 CommentsMy GUN SAVED MY LIFE once when a would-be robber broke into my house one night.....Boy, did he get a big surprise
One of the basic rights for any man, anywhere, should be the ability to protect his own life. How can a law-abiding man do that, if guns are made illegal?
All animals fight (or take flight) against being killed. Humans are no different. There are disparities amongs the species as to some being born with integral weapons that can be used to kill (fangs or claws) or defend by causing great pain (quills and shells). Amongst humans there is disparity of size and strength and there is always the danger of the mob. The human lacks integral weapons that the animals have, to a certain degree, so he must use his greatest weapon, his ability to think, to design and develop external tools for self-defense, amongst these being firearms.
To hope that gun confiscation laws will somehow reduce acts of gun violence is to hope against nature. There are 100,000,000 firearms in this country and only about 20,000 people a year are killed by other humans using firearms (this figure includes suicides and justifiable homicides) so to outlaw all firearms is a case of 312.5 pounds of prevention to an ounce of cure.
Since modern humans appeared on the scene about ten thousand years ago after the last Ice Age, he hasn't evolved much more. He's a little taller, a heck of a lot heavier, and he lives a little longer, but he hasn't outgrown his need for weapons and probably won't do so in the foreseeable future.
Intrestingly, countries that have made gun ownership more difficult--Canada, England all of Europe etc, have less gun violence and a lower murder rate--but we 'Americans' are addicted to the idea that we are still on the frontier. Wake up and smell the gunpowder!!!
YOUR SO CALLED STATISTICS ARE WILDLY BIASED. THE NUMBERS THAT YOU CITE INCLUDE SUICIDES USING GUNS. APPARENTLY THOSE PEOPLE WOULDN'T HAVE KILLED THEMSELVES IF THEY DIDN'T HAVE GUNS...
"Intrestingly, countries that have made gun ownership more difficult--Canada, England all of Europe etc, have less gun violence and a lower murder rate--but we 'Americans' are addicted to the idea that we are still on the frontier. Wake up and smell the gunpowder!!!"
THAT IS ENTIRELY UNTRUE. IF YOU DO SOME ACTUAL RESEARCH YOU WILL FIND THAT VIOLENCE, INCLUDING GUN RELATED VIOLENCE IS HIGHER IN THOSE AREAS THAT YOU MENTIONED. ENGLAND SPECIFICALLY.
UNBIASED STUDIES HAVE SHOWN THAT STATES WITH CONCEALED CARRY LAWS HAVE LOWER VIOLENT CRIME RATES...
If you want to increase the penalty for crimes commited with guns, sure no problem, but don't try to punish law abiding gun owners because you don't like guns.
Gun violence might be down, but violent crime against common citizens have gone up in England and Canada.
My GUN SAVED MY LIFE once when a would-be robber broke into my house one night.....Boy, did he get a big surprise
There is nothing wrong with banning some firearms and/or regulating the use of others. So what if D.C. banned handguns? There were many cities in the Old West that did exactly the same thing. It didn't seem to bring about tyranny back then, it won't now.
Just look at some of the anti-gun control arguments on this board! These people are nuts and getting nuttier! Humans have some genetic need for weapons? Violence in England is greater than in the U.S.? C'mon! At least use arguments that make sense or have some connection to reality!
tho (at that time) it was considered a inherent right for the public to possess arms (for self protect). that being under english law---which we modeled after.
NO ONE SAID THAT VIOLENCE IN ENGLAND IS GREATER THAN IN THE US. WHAT WE SAID THAT WAS SINCE GUNS WERE BANNED VIOLENCE HAS INCREASED. THERE IS NO REASON FOR CRIMINALS TO RESTRAIN THEMSELVES SINCE THEIR VICTIMS WILL BE UNARMED...UNLESS THEY TOO ARE BREAKING THE LAW.
That is why the the Amendments start with 5 guaranteed personal rights, and then follow up with collective rights (state's rights). The Second Amendment is there to explicitly allow the individuals to join collectively to resist governments tendincy to limit thowe rights. The founding fathers used English history as a template of government behavior, as well as government structure.
There is this insane idea out there that people like Al Gore or Hillary Clinton are "coming for your guns". How about we put that "cold-dead-fingers" thing to the test? They will never come for our guns - but I wonder if the faux-machismo would actually pull the trigger so to speak in defense of their rights - or would they go back to their Sony Playstations and end up like lambs in the slaughter? My guess is the latter!
I remember a Time magazine cover story some years ago that was on gun violence. At that time, there were more gun deaths in a week in this country than nearly every major developed country in a YEAR!!! Why is that? Is it because we are more free? Personally I think it is because we are impatient, selfish and greedy - and a gun plays the perfect little pill to give us what we want and NOW!
That said, I am a Pacifist who loves the time he spends on the range. But I firmly believe that you should never kill anything and allow yourself to be killed - I think that is from the Talmud...
My opinion of an ANARCHIST...
the ONLY thing that protects them is the LAW
and the reason I can say that is because I have a GUN...
Posted by USAwatchman at 03:55 PM : Dec 11, 2006
My GUN SAVED MY LIFE once when a would-be robber broke into my house one night.....Boy, did he get a big surprise
All laws intended to control firearms in the hands of the common citizen, whether they be "reasonable," "civilized," or whatever fashionable adjective gun-control fanatics may apply to sell them, infringe upon this right and are therefore unenforceable. Instead of skirting the issue, these fanatics need to repeal the 2nd Amendment.
It won't be the first time our Constitution has been meddled with in this way but it would be the first time that the power of the people has been reduced instead of the power of the government. If the fanatics can accomplish this, leaving the American people open for the most extreme of government abuses, they'll never hear another Constitutional argument from me.
"The tree of Liberty must be refreshed from time to time with the blood of patriots and tyrants." Thomas Jefferson
What about OUR FREE SPEECH ZONE...?
ISN'T that the PARAMETER of a rifle shot...???
I am an anarchist and the thing that protects my family and me is me, not the Law. If people obeyed the Law, I wouldn't need anything to protect me, except maybe from those who write and enforce the Law. Even the Law (the judicial branch of our government) says it cannot protect me and cannot be held liable for those occasions when it can't. Any police officer trained in Crime Prevention will teach citizens that the ultimate responsiblity for a the safety of the citizen and their property rests with citizen. That's why we have the right to keep, bear, and use weapons, regardless whether the Law recognizes that fact or not.
"It is not the position of government to grant us our rights as they are given to us by our Creator and predate the very existence of government. The proper role of government is to protect those rights."
What about OUR FREE SPEECH ZONE...?
ISN'T that the PARAMETER of a rifle shot...???
Those with the BIGGER GUNS
have MORE FREE SPEECH...?
The only ANARCHIST I have ever seen are those
destroying other people property
(property that doesn't belong to them (the ANARCHIST))
If this describes you OlGreyGhost,
then we will have to part on this opinion
Your first post was excellent!
I grew up in house with firearms, in a hunting family. Very common in the rural area where we lived. Virtually everyone had guns, and I can't remember a single intentional shooting death. There was the occasional "careless hunter" incident, but same thing for any tool (ie axes, chainsaws, etc).
As far as I am concerned, the answer is very vigerous prosecution of gun-related crimes. But anyone law-abiding citizen that wants to own a gun should be able to do so.
I am an anarcholibertarian ("Government has no inherent right to exists and governs me only with my permission"), not a criminal. Those who destroy other people's property without the owner's consent are criminal. I respect other people's property as I expect them to do the same for mine.
An anarchist is one who doesn't believe we really need the aggressive force we generally call government. America has survived several periods in its history that can best be defined as anarchy (the absence of government). I am a reasonable person though and if we must live in close proximity to each other (usually around sources of water) then we have to have a few (emphasis on few) rules in regards to behavior that cause direct and measurable loss to our neighbors. I think our argument is a matter of semantics and we are not too far off from having similar political positions.
Mrthornman: Keep up the good work. We just might win this thing...:)
with the blood of patriots and tyrants." Thomas Jefferson
and as I have said
The UNITED STATES SUPREME COURT
""6) CAN THE PETITIONER GET MORE JUSTICE WITH A $10 BOX OF AMMO, THAN WHAT CAN EVER BE FOUND IN ALL THE CORRUPT UNITED STATES COURT ROOMS.?""
The UNITED STATES SUPREME COURT
wasn't interested in JUSTICE
So they only HELPED the LOWER COURTS
COVER UP THEIR GOVERNMENT CRIMES..
Government are instituted among Men,
deriving their just Powers from the Consent of the Governed,
that whenever any FORM of GOVERNMENT,
becomes destructive of these ends,
it is the RIGHT OF THE PEOPLE to
ALTER or TO ABOLISH it, and
to INSTITUTE NEW GOVERNMENT
(BUREAUCRATS and POLITICIANS)
HAVE YOU EVER HEARD SUCH TREASONOUS TALK BEFORE...
The STATE and FEDERAL GOVERNMENT
Really don't want to ACKNOWLEDGE
the IX and X Amendments to the CONSTITUTION
you will see VERY little that they will YIELD to the PEOPLE,
it is almost every time to the state or federal government...
yet, the Bureaucrats and Politicians act as if
THEY RULE US(A)...
They always want to say that is a privilege not a right...etc
PEOPLE do NOT FALL for their FOOLISHNESS..
1. You can have as many guns as you want, any kind, but you have to register them.
2. If your gun is stolen (which seems to happen a lot), you have 1 month to report it or you get fined, and loose right to own a gun for a year. 2 seperate stolen (or lost) gun incidents, and you can't have guns for 5 years.
3. If a gun that was sold to you is used in a crime (and you didn't report it lost or stolen as per #2 above), you share liability (plus fines) for any illegal activity that occurs with that gun. And you you loose your right to have guns for up to 10 years, depending on the crime.
4. If a child is caught with your gun, you pay a heavy fine, and loose your guns for 5 years.
5. If a child injures another person with your gun, you are libel.
6. You need to pass a test every 10 years to demonstrate you can handle a gun, just like a car. We don't even let you fish without a liscence.
7. Hand guns sold to the public should all be hot pink (ok, this one is controversial but I bet sales to to men would drop).
8. If you commit a crime with a gun, you receive significant added penalties. This is already on the books in most states.
Bottom line ... gun ownership is fine and protected ... but its just like your kids toys ... if you can't take care of them, and keep track of them, you loose them.
What is lacking are the instructions on the morales and values; that are necessary live peacefully.
Mankind will never be satisfied, we are the greediest, ugliest, and most wasteful of all Gods creations.
Some gun ownership / control / safety ideas:
Posted by jpesot at 06:18 PM : Dec 11, 2006
I love for the children argument
4. If a child is caught with your gun, you pay a heavy fine, and loose your guns for 5 years.
5. If a child injures another person with your gun, you are libel.
gun ownership / control / safety ideas:
More kids a killed, or kill by SWIMMING POOL than with/by GUN
Here is a better IDEA
everyone who doesn't like the 2nd Amendment can LEAVE...
and go live in CHINA...
nerya_100 at 06:53 PM : Dec 11, 2006, was right...(spelling corrected)
What is lacking are the instructions on the morals and values; that are necessary live peacefully.
You know the STUFF
OUR GOVERNMENT DOESN'T HAVE
and
CAN NOT TEACH
Prof. Cornell is one of the very few who has not adopted the standard model. This may be due in part to financial incentives provided by the Joyce Foundation, who has as part of their mission statement to discourage gun ownership.
So, consider the lonely voice and the source. Not reliable.
I would like for Mr. Cornell and Mr. Cohen and all the rest concerned with this issue to obtain a copy of "The Second Amendment Primer" by Les Adams and read it!
On page 110, David Hardy points out: "Madison's initial Bill of Rights proposals have two features which merit comment. First, contrary to some claims that "right of the people" connoted a state rather than an individual right, Madison's plan used "right of the people" to describe freedom of speech, press and other clearly individual rights.
Madison clearly places the right to keep and bear arms alongside our other individual freedoms.
Bottom line, become educated in the history of the drafting of the second amendment by reading "The Second Amendment Primer" versus Professor Saul Cornell's book, %u201CA Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America," which is off base with the historical documents surrounding the formation of the second amendment.
I would like for Mr. Cornell and Mr. Cohen and all the rest concerned with this issue to obtain a copy of "The Second Amendment Primer" by Les Adams and read it!
On page 110, David Hardy points out: "Madison's initial Bill of Rights proposals have two features which merit comment. First, contrary to some claims that "right of the people" connoted a state rather than an individual right, Madison's plan used "right of the people" to describe freedom of speech, press and other clearly individual rights.
Madison clearly places the right to keep and bear arms alongside our other individual freedoms.
Bottom line, become educated in the history of the drafting of the second amendment by reading "The Second Amendment Primer" versus Professor Saul Cornell's book, %u201CA Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America," which is off base with the historical documents surrounding the formation of the second amendment.
I would like for Mr. Cornell and Mr. Cohen and all the rest concerned with this issue to obtain a copy of "The Second Amendment Primer" by Les Adams and read it!
On page 110, David Hardy points out: "Madison's initial Bill of Rights proposals have two features which merit comment. First, contrary to some claims that "right of the people" connoted a state rather than an individual right, Madison's plan used "right of the people" to describe freedom of speech, press and other clearly individual rights.
Madison clearly places the right to keep and bear arms alongside our other individual freedoms.
Bottom line, become educated in the history of the drafting of the second amendment by reading "The Second Amendment Primer" versus Professor Saul Cornell's book, %u201CA Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America," which is off base with the historical documents surrounding the formation of the second amendment.
I would like for Mr. Cornell and Mr. Cohen and all the rest concerned with this issue to obtain a copy of "The Second Amendment Primer" by Les Adams and read it!
On page 110, David Hardy points out: "Madison's initial Bill of Rights proposals have two features which merit comment. First, contrary to some claims that "right of the people" connoted a state rather than an individual right, Madison's plan used "right of the people" to describe freedom of speech, press and other clearly individual rights.
Madison clearly places the right to keep and bear arms alongside our other individual freedoms.
Bottom line, become educated in the history of the drafting of the second amendment by reading "The Second Amendment Primer" versus Professor Saul Cornell's book, %u201CA Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America," which is off base with the historical documents surrounding the formation of the second amendment.
I would like for Mr. Cornell and Mr. Cohen and all the rest concerned with this issue to obtain a copy of "The Second Amendment Primer" by Les Adams and read it!
On page 110, David Hardy points out: "Madison's initial Bill of Rights proposals have two features which merit comment. First, contrary to some claims that "right of the people" connoted a state rather than an individual right, Madison's plan used "right of the people" to describe freedom of speech, press and other clearly individual rights.
Madison clearly places the right to keep and bear arms alongside our other individual freedoms.
Bottom line, become educated in the history of the drafting of the second amendment by reading "The Second Amendment Primer" versus Professor Saul Cornell's book, %u201CA Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America," which is off base with the historical documents surrounding the formation of the second amendment.
My GUN SAVED MY LIFE once when a would-be robber broke into my house one night.....Boy, did he get a big surprise
See, I knew you were a Jeffersonian-anarchist! :)
If wanting to keep the right to bear arms to protect ourselves from criminals, foreign invaders, and oppressive government agents makes one a kook then we are living in a country that was founded by kooks for kooks.
But, as I've have stated elsewhere, this is the beauty of these United States, if we keep totalitarian gun-confiscation laws a local issue. Those who want everyone in the neighborhood, except their benevolent government officials, disarmed can find somewhere in this country to live, like NYC, SF, or in the District. Others who enjoy their freedom might be hard-pressed but should find somewhere more amiable (even here in the Republic we have our problems but it's the closest I've ever been to perfection). Then the people can all vote in one way that even the most myopic of politicians can see - with their feet. Everybody who wants to be disarmed is and those who don't want to be aren't.
"But people will import firearms into our socialist utopia from outside." Yeah, then build a wall. It worked for East Berlin, right?
I would like for Mr. Cornell and Mr. Cohen and all the rest concerned with this issue to obtain a copy of "The Second Amendment Primer" by Les Adams and read it!
On page 110, David Hardy points out: "Madison's initial Bill of Rights proposals have two features which merit comment. First, contrary to some claims that "right of the people" connoted a state rather than an individual right, Madison's plan used "right of the people" to describe freedom of speech, press and other clearly individual rights.
Madison clearly places the right to keep and bear arms alongside our other individual freedoms.
I would like for Mr. Cornell and Mr. Cohen and all the rest concerned with this issue to obtain a copy of "The Second Amendment Primer" by Les Adams and read it!
On page 110, David Hardy points out: "Madison's initial Bill of Rights proposals have two features which merit comment. First, contrary to some claims that "right of the people" connoted a state rather than an individual right, Madison's plan used "right of the people" to describe freedom of speech, press and other clearly individual rights.
Madison clearly places the right to keep and bear arms alongside our other individual freedoms.
were??? Am..!!!
Yea, I like to Quote Jefferson,
I give him the credit...when I can
but found that not all his comment were written down
but I know he said it...
and so I just quoted him...
==================
I see you will give more than me...
I will not Yield to them...at all
...what a lot of people fail to understand is without a gun
you opinion isn't worth squat...
Thomas Jefferson, on a lazy summer day
=================
These people only have to go to China...
Speak Out...and see
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