Guns.

An Individual or Collective Right
“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.”

Preamble
On Saturday, 24 February 01, my (now ex-) wife and I went to Pioneer Square in Seattle, Washington to celebrate Mardi Gras. The evening began with our notice of roving bands of armed men walking around the periphery of the Square. Shortly afterward, while waiting in line to enter a night club, we were nearly trampled by a half dozen heavily armed officers on horseback who came crashing through the crowd. Most of the rest of the evening went by uneventfully. After the band played their last set, the lead singer announced to the crowd that if we wanted to avoid the teargas, we should exit through the rear of the club. Naturally, we thought they were kidding, but we left through the rear anyway since it was closer. To my surprise, I was leaving America and entering Beirut.
The air was indeed filled with gas (pepper-gas, it turns out), and loud explosions seemed to be occurring continuously. As we left, we were in a state of confusion, having no idea how to react to the situation we found ourselves in. The police had cordoned off the area that we were in, and we found that we could not even move our vehicle from the garage we were parked in because the police were standing in a riot line right where we needed to exit.
We stood dumbly near our vehicle waiting for some direction. Did the police want us to stay where we were, or did they want us to leave? At no time did the police give us any information as to what was going on. We did not see anything resembling riots, and the only apparent lawlessness seemed to be on the part of the police who fired stun grenades, tear gas, and rubber bullets seemingly indiscriminately into the crowd. Finally, we decided that the police must want us to leave since they were aiming their weapons at us for the crime of looking at them. I waited in vain for the Washington State National Guard to arrive and protect the citizens who were for the most part exercising their right to assemble in the face of oppressive actions of the government, but it was to no avail. The only patriots in Pioneer Square were apparently the few brave souls standing up to the police, and catching pepper-spray in their face for their effort.
The question I had in this situation is whom did the Founding Fathers intend to be armed in this confrontation? Did they want the police, who in any definition resembled a feared standing army, the National Guard that failed to mobilize to protect the citizenry, or the citizens themselves to have the power of arms?
Issue:
We are all aware of the general debate about the 2nd Amendment: Is the right an individual right to bear arms, or is it a collective right vested in the Militia? It is beyond the scope of this article to determine the meaning of the Second Amendment today. But where did the amendment come from? What made the Founding Fathers include this amendment in the Bill of Rights, and how would they have looked at the situation I found myself in Pioneer Square?
The Law before the Amendment...
The right of the people to arms is a relatively new phenomenon. Whether the right belongs to the individual or the people as an aggregate, the arming of citizens was considered a dangerous idea for most monarchies. The idea of the militia originated in modern times in England, where it was believed that free yeomen would be more effective fighters than continental serfs and it was this idea that spawned a duty for men to bear arms.[1] All able bodied men from 16 to 60 were liable for service. [2]. This period lasted through the Cromwell revolution in England, but by 1659, the government began compiling lists of arms holders, and confiscating the weapons.[3] The British reacted to this by passing the British Bill of Rights in 1689 and stated “that the Subjects which are Protestant may have Armes for their Defence Suitable to the Condition and as Allowed by Law.”[4]
While arms were crucial to the colonies, early in the colonial period of Virginia, all weapons were “nationalized” and given to those most able to handle them.[5] In the northern colonies, it was clear that the English did not trust the settlers (who were mostly Dutch) and in every one of their colonies, the government kept firearms under its own control.[6] “The militia remained as little more than a political gesture, intended to convince settlers that they still played a role in their own defense.”[7] Colonial legislatures routinely passed laws that required Protestant men to have weapons, but restricted the right to have fire-arms from Catholics and others they considered unworthy.[8] Additionally, any person who refused to serve in the militia also forfeited his right to arms. [9] While some colonies required that each freeman own a weapon, they often required that they be stored in central locations.
As the colonies began moving toward independence, the need of the Crown to disarm the colonists became more profound. This disarming met significant resistance. The Boston Evening Post wrote in 1769 (referring to the British Bill of Rights) “ It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their defense; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.”[10] The Boston Massacre in 1770 led to a trial in which John Adams (defense counsel to one of the British soldiers) stated “here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defense, not for offense...”[11] Finally, On April 18, 1775, the British Army marched on Lexington and Concord to confiscate the military equipment stored there, and this action ignited the American revolution into active combat.[12]
The American Colonists needed and believed in the right of the people to keep and bear arms, but did they intend it to be a collective right, or an individual right?
A Well Regulated Militia...
Why does the Second amendment refer to the militia? At least part of the issue was simply political. There is historical evidence showing that the Militia itself was a tool for social order, not because it was an effective policing or military force, but because compulsory membership created a military heirarchy among all of the men in society.[13] Additionally, since the new nation decried aristocratic titles, the militia ranks were used as a substitute.[14] The experience of the Revolutionary War made it clear that at that time, a militia was not effective as a defense of a free nation, let alone a necessary defense. It was not until a standing army was formed that the British were defeated.
Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind...[15]


It was also believed that people with something to lose, such as their property and homes, would be more effective fighters. The weight of history does not support this contention, but it was again a politically popular idea. [16] In fact, it was this very idea that Federalist Number # 24 was written in part to deny:
Previous to the Revolution, and ever since the peace, there has been a constant necessity for keeping small garrisons on our Western frontier. No person can doubt that these will continue to be indispensable, if it should only be against the ravages and depredations of the Indians. These garrisons must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. The first is impracticable; and if practicable, would be pernicious. The militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. And if they could be prevailed upon or compelled to do it, the increased expense of a frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclusive objections to the scheme. It would be as burdensome and injurious to the public as ruinous to private citizens.[17]
.
While the Federalists did not believe the people could adequately defend the borders, they did believe that they could resist a standing army of their own:

Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year...
This will not only lessen the call for military establishments, 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 the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.'' [18]

Meanwhile, it was accepted that American government was special:
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation... 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... Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.[19]

As the Federalists show, the militia was intended to counterbalance the standing Army controlled solely by the federal government, whose power was intended to be limited by the Bill of Rights. The Bill of Rights was a limitation of the Federal Government, not of the states. However, the Constitution had already provided for a Militia controlled by the states prior to the Bill of Rights. According to Article I, Section 8 of the Constitution, Congress has the right:
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Additionally, Article II, section 2 accepted the existence of the militia, and granted to the Executive:
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;
In the full context of the Constitution, then, what is the meaning of “A well regulated militia, being necessary to the security of a free state?” Does “well regulated” have a different meaning than “organizing, arming, and disciplining?” Without the Second Amendment, Congress was already required to provide for and arm the militia, and reserve the authority of appointments and training to the states, while providing the militia to the Executive.
The Right of the People...
In what way, then is “ the right of the people to keep and bear arms, shall not be infringed” modified by the preceding clause? There are several different areas for reasonable differences of opinion as to what the second clause of the amendment meant, largely because the amendment was not debated to any great extent. One problem found in looking at the Bill of Rights is that there was a group of people who felt that the enumeration of rights actually limited the people to those rights enumerated, and were therefore against all of the amendments.
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power...[20]

This idea is particularly applicable to the debate over the right to bear arms, because the argument about what the right is centers on whether the amendment is intended to provide solely for the well-regulated militia, or did it include the personal right to defend self and property. For those who believed the Bill of Rights would limit the rights of the people, this argument would probably be a culmination of their fears. Noah Webster wrote in the American Magazine that “if a bill of rights was necessary, then it should include a provision ‘that Congress shall never restrain any inhabitant of America from eating and drinking, at seasonable times, or prevent his lying on his right side, in a long winter’s night, or even on his back, when he is fatigued by lying on his right.’” [21]
At the time of the revolution, however, the Militia included all able bodied freemen, so the issue of the People vs. the Militia is nonsensical, because they were the same according to the accepted terms of the day. This universal service requirement generally required all free males from 16 to 50 to serve.
There are numerous indications that the founding fathers were interested in disarming those individuals they did not believe should be citizens. Blacks, Native Americans, Roman Catholics, Tories, and other non-Protestants were often targeted as unworthy of arms ownership. This can be interpreted in at least two ways. One possibility is that gun ownership was not intended to be a right for individuals. The second possibility is that gun ownership was a sign of citizenship. Since other substantive rights such as freedom of religion, speech, and voting were also restricted in varying degrees for these groups, it is not surprising that gun ownership was as well, and in fact the loss of the ownership of guns made it possible for the other rights to be taken.
At about the same time as the Federal Bill of Rights was adopted, several of the states were adopting their own statements of rights. Thirty-seven states now have constitutional amendments that are similar to the Federal 2nd Amendment, although some are more limiting, and others grant a greater personal right.[22] For the purpose of this discussion, however, the states that adopted them too remote in time to the adoption of the Second Amendment do not shed light on the original framers intent. A few contemporary examples: The Pennsylvania Constitution which was adopted in 1790 states: “that the right of the citizens to bear arms in defense of themselves and the state shall not be questioned.” This was a restatement of a previous document, The Pennsylvania Declaration of Rights which in 1776 stated “that the people have a right to bear arms for the defense of themselves, and the state; and as standing armies in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by the civil power.” Vermont later adopted this amendment verbatim in their own Declaration of Rights.[23]
Since the Second Amendment did not include the individual right, this can be accepted as showing that the Amendment in the Bill of Rights specifically rejected the right of individuals to keep and bear arms to defend themselves. This would be somewhat disingenuous, however, because the Second Amendment also does not specifically declare that the people can defend the state. However, it can also be used as evidence that clauses were often stuck together that have little to do with each other, such as “a well regulated militia being necessary for the security of a free state,” and “the right of the people to keep and bear arms shall not be infringed.”
The States are not uniform in their support of the Second Amendment, however, and while Connecticut has an amendment that specifies the right to bear arms in self defense, Massachusetts limits that right to the common defense.[24] What the state amendments do show is that personal defense is a right that was at least considered, and shows that the construction of the second amendment was not unique to the common defense. For example, Pennsylvania clearly uses the terms “bear arms” in conjunction with the people defending themselves. Some authors, such as Warren Freedman, have argued that “bear arms” is strictly a military usage, but the use of the term at the same time period in terms of self defense shows this argument to be false.
Conclusion
The current meaning of the Second Amendment remains in doubt until the Supreme Court rules definitively on the subject. What should not be in doubt is that the Founding Fathers assumed that citizens had the right to defend themselves with arms at the time that the amendment was written, and that the terms used in the amendment do not preclude the interpretation that the meaning of the amendment is for self defense. The fact that similar amendments at the state level specified an individual right to self defense but were not adopted federally can be seen to insinuate that they were rejected. Similarly, these same amendments show that individual self defense using arms was a popular idea at the time of the amendment, and the fear of some at the time that the Bill of Rights would be used to limit rights rather than ensure them may have culminated here.

Who should be armed? History seems unable to show definitively one way or the other. I think, however, that the founders would have preferred that the people be armed, in pioneer square.




[1]Malcolm, Joyce Lee. To Keep and Bear Arms, Harvard University Press, 1994. p.1
[2]Id. at 4.
[3]Id. at 28
[4]Id.
[5]Bellesiles, Michael A. Arming America, Alfred A. Knopf, New York, 2000. p 53
[6]Id. at 65.
[7]Id. at 66.
[8]Id. at 72
[9]Id.
[10] Malcolm, p. 145.
[11]Halbrook, Stephen P., That Every Man Be Armed, The Independent Institute, Oakland CA, 1994. p. 58.
[12]Id.
[13] Cornell, Saul, ed. Whose Right to Bear Arms Did the Second Amendment Protect? Bedford St. Martins, New York, 2000. p. 125.
[14]Id. 139.
[15]Federalist # 25. Emphasis added.
[16]Cornell, p. 139.
[17]Federalist #24.
[18]Federalist #29.
[19]Federalist # 46.
[20]Federalist #84.
[21]Halbrook, Stephen P. A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees, Greenwood Press, NY 1989. p. 100-101.
[22]Freedman, Warren. The Privilege to Keep and Bear Arms, Quorum Books, New York, 1989. p. 28.
[23]Halbrook, A Right to Bear Arms, p. 35-36.
[24]Id. at 30.

Still Nothing..

Must be doing something wrong here.