Historian Joseph J. Ellis Slams Heller Ruling

The term "original intent" is in inference to that, when interpreting a text, a court should determine what the authors of the text were trying to achieve, and to give effect to what they intended the statute to accomplish, in spite of the actual text of the legislation. However, in the case of the 2nd Amendment, the actual text matches the original intent. Hence, Dr. Ellis reference of "original intent" has no purpose here.

Yes: That's why we have a process to make amendments to Constitution. It appears that Dr. Ellis just wants the government to ignore laws that it does not agree with, which is the definition of fascism.

Again, the discussion of "original intent" has no relevance in this discussion, since the text of the Second Amendment matches Madison's "original intent." In fact, if you look at Volume I of Annals of Congress 434 [June 8, 1789], it can be seen that Madison's original intent matches almost verbatim the text of the Second Amendment: "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."

This is a perfect example of an "appeal to authority" fallacy. Also, I am not a historian and I have had a pretty easy time debunking his extremely weak position on this matter, and it would not be very difficult to find a plethora of historians that disagree with this hack.

So what are you suggesting? Should we get rid of the Supreme Court, declare all prior rulings by the SCOTUS null and void, and declare Dr. Ellis the ultimate arbiter over all legal proceedings of this country?

The purpose of the Supreme Court is to be the final judge in all cases involving laws of Congress, and the Constitution, and that's exactly what the SCOTUS did in reference to Heller v D.C: It made a judgement on a case.

It clearly was not (see my prior quotes from James Madison who authored the Second Amendment).

Then why did this setup never happen? As soon as the Bill of Rights were ratified, individuals citizens who were not part of a "part-time militia," were able to keep and bear arms.
Moreover, why does the Second Amendment and Federalist #46 specifically mention that the right to keep and bear arms is for "the people?"
Lastly, if what you are saying is true and only militias should have the right to bear arms, then where exactly are these militia members supposed to go to obtain their firearms? Let's say your scenario plays out and the federal government starts to seize power and the citizen militia is needed to fight back against this evil tyrannical federal government. Where exactly do militias members go to purchase firearms? Certainly they cannot purchase them from the federal government? Don't you see now how ludicrous your argument is now?

On the contrary, we are the only ones who do comprehend the Second Amendment (which is pretty pathetic seeing how these amendments were written so that someone with a fifth grade education could understand them). People like you and Ellis purposely misinterpret the Second Amendment and even go so far as to rewrite history to suit your biased anti-gun agenda.

 

The decision of Heller v D.C. certainly did not state that the right to keep and bear arms is an unlimited right (in fact, it stated that, like all rights, there are reasonable limitations). Hence, you are attacking a strawman.

The decision did state the following:

(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.
(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.

(2) Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.

(3) The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition – in the place where the importance of the lawful defense of self, family, and property is most acute – would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.

 

Of course the text matches the original intent, but I don't think you understand either.

And sometimes they are in error. Heller is a clear example of that.

Circular logic here. You conveniently assume that "keep and bear arms" and "the people" have the meaning you want them to have. I've already addressed what "keep and bears arms" means. "The people" doesn't have the individualistic meaning you want it to have. The delegates to the Constitutional Convention in 1787 referred to themselves as "the people." That doesn't mean that each person in America at the time supported and was involved in writing the Constitution.

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

The First Amendment protects the right of the people to assemble and petition the government. "The people" connotes collective action.

The state militias were not intended to be instruments of rebellion. They were intended to make a rebellion unnecessary. The thinking was that the government of a nation that relies on a citizen militia for its military needs is much less likely to become tyrannical. Thus your speculation is irrelevant.

I don't think a true conservative would support your interpretation of the Second Amendment.

 

I try to keep things simple, like the concept of gun control---this entire sub forum:

gun control
noun

: laws that control how guns are sold and used and who can own them
http://www.merriam-webster.com/dictionary/gun control

Gun Control ----- meaning----- laws that forbid certain citizens that logically should have them, FROM having them. Laws saying certain commonly used firearms should not be for the common man/woman. Laws dealing with registration schemes, taxes and so forth.

 

what part of the commerce clause which said congress has the power to regulate commerce AMONG THE SEVERAL STATES-evidences a clear intent to allow congress to control what INDIVIDUAL citizens OWN or BUY in their own sovereign states ?

and since the CRUIKSHANK COURT correctly noted the 2A only RECOGNIZES A PRE-EXISTING RIGHT, rather than creating one, how in God's name could the right of the Militia-which is a governmental entity -pre-exist the creation of government?

Stevens was nothing but a mentally fading old statist at the time Heller was written and he was mad that people were going to be able to tell the federal government to "Stick it" when the government tried to ban guns. He even proved that when he later suggested that the 2nd A be amended to limit the right to those in the military. Of course that shows what a dishonest scumbag he is because again, he dishonestly changes the 2A from being a PREVENTION of government action against a pre-existing right that the federal government never had the power to interfere with, to a privilege

 

If the text matches the original intent, then my previous point stands. The term "original intent" is properly invoked if the text of the law is ambiguous. This is clearly not the case in reference to the Second Amendment, when the text is succinct and very straightforward. Moreover, the "original intent" from James Madison (the author of the Second Amendment) as seen through his text in the Federalist Papers, matches nearly verbatim the text of the Second Amendment.

What exactly don't you think I understand?

You are certainly entitled to have a baseless opinion that you are unable to support with any historical facts or legal precedent.

I don't think you understand what "circular logic" means. You first stated that only members of a civilian militia (or "part time militia") are allowed to have the right to firearms. This belief is not at all supported by the text of the Second Amendment, the Federalist Papers, the Annals of Congress, or any other supporting document to the Bill of Rights. Moreover, the Second Amendment was never put into practice the way that you describe, since, from the time the Bill of Rights were ratified, individual citizens who were not members of an official "militia" were legally able to keep and bear arms.

LOL! You are really grasping at straws here. So then, according to you, whenever the Bill of Rights references "the people," who exactly is this document referring to? Perhaps, according to your logic, "the people" do not have the freedom to assemble or be protected from unreasonable searches and seizures. And what exactly does the 10th Amendment mean when it states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to THE PEOPLE?"

Ah, so the government can arrest individual people of a group that is peacefully assembling, but cannot arrest the collective group as a whole. Also, I guess if only one person peacefully protests or petitions the government then he can be arrested, but if two people form a small group and peacefully protest or petition the government then the government will have a harder time arresting them. You have made a very salient point

Your argument is all over the place. So now you are saying that militias are not supposed to take up arms against a tyrannical government (even thought this is how our country was created)? Then what's the point in having a militia that has the right to keep and bear arms, but is not supposed to take up arms (even when faced with a tyrannical government).

This country has always had a professional standing army (the US armed services has been around before the Bill of Rights were written and ratified). Thus, to say that we have relied more on a civilian militia is historically inaccurate. While the purpose of having a civilian militia (e.g. law-abiding adults able to take up arms), is to hopefully prevent tyranny, if a government does become tyrannical, then it is the right of the civilian militia to take up arms against this hypothetical tyrannical government. Thomas Jefferson, author of the Declaration of Independence, agrees with this viewpoint: "The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty. ... 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."

Well, even though I am a libertarian and not a conservative anyway, how in the world do you know what a "true conservative" would support?

 

Wrong or not, the matter has ultimately been settled. There is no going back to change the outcome, no appeal to a higher court, no requests for a rehearing. Heller has been decided, the verdict it is, and it is the world we find ourselves living in.

 

Not even the liberal 9th court agrees with you.

 

In a nutshell:

The referenced weblink in the original post just shows an opinion piece, written in a known biased newspaper, by a known leftist liar and author, whose sole reason for writing said opinion piece is to promote his latest book, which I would wager probably isn't selling as well as he and his publisher forecasted.

All the opinionated writer has accomplished is supplying mind-numbed leftists, ill-mentored lemmings, hardened anti-constitutionalists and other America haters with opinionated propaganda and blatant lies to spew and distribute among the naive for reinforcing their ingrained twisted and erroneous beliefs.

'Bout sum it up?

Fork the prof and his disciples of ignorance, stupidity and constitutional contempt.

 

I meant disagrees.

 

Goofy me. I meant what I said the first time. What a doof.

 

You understand neither the text nor the original intent.

Again this is circular logic. If you start by assuming that "keep and bear arms" in the Second Amendment means gun ownership outside of the militia then it's pretty easy to reach the conclusion that it means gun ownership outside of the militia. How convenient for you.

"The people" in the Fourth Amendment is paired with the more individualistic language of "persons." I don't think only one person can assemble. I'm not sure what your point is other than to disagree with the plain meaning of words used in the Constitution. "The people" could take many forms such as a constitutional conventional or citizen militia.

The point is to make it unnecessary for the federal government to maintain a large, powerful standing army. A federal government without a large, powerful standing army is less likely to be a threat to liberty. The Second Amendment was not written to protect a right of rebellion.

Thomas Jefferson was a radical libertarian relative to many of his contemporaries. He had the idea that each generation should overthrow the government and start anew. Timothy McVeigh had this quote on his shirt by Jefferson on the day he blew up the Federal Building in Oklahoma City:

"The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."

Contrast that with this quote by Samuel Adams:

"Rebellion against a king may be pardoned, or lightly punished, but the man who dares to rebel against the laws of a republic ought to suffer death."

 

I'd bet two to one that the biased and leftist opinionated Prof sm-Ellis wishes his name was as infamous as the falsely accused video maker and Obama scapegoat, Mark Basseley Youssef.

 

I have proven beyond the shadow of a doubt that, of the two of us, I am the only one who understands the text of the Second Amendment and the original intent. You have yet to explain how the statement, "The right of the people to keep and bear arms shall not be infringed," somehow means that the people do not have the right to keep and bear arms. Good luck with that one.

Again, you have demonstrated that you do not understand what "circular logic" means. Let me help you. Circular logic is defined as: A use of reason in which the premises depends on or is equivalent to the conclusion. The sentence, "The bible was written by God because God tells us it is...in the bible," is an example of circular logic.

You force me to repeat myself: Your argument/belief is not at all supported by the text of the Second Amendment, the Federalist Papers, the Annals of Congress, or any other supporting document to the Bill of Rights. Moreover, the Second Amendment was never put into practice the way that you describe, since, from the time the Bill of Rights were ratified, individual citizens who were not members of an official "militia" were legally able to keep and bear arms.

Hence, the onus is on YOU to prove your argument that the Second Amendment applies to only a National Guard style of militia (even though the text of the 2nd Amendment, Federalist Papers, and Annals of Congress disagree with this view). Let's see some supporting historical documents that buttress your viewpoint. I will be waiting.

The 4th Amendment reads, "The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures..." The term "their persons" means the physical bodies of THE PEOPLE. Any way you look at it, in both the 2nd Amendment and the 4th Amendment, grammatically "the people" is the subject of the sentence, and in both amendments, the rights are conferred on "the people."

LOL! So a single person is unable to "assemble and to petition the Government for a redress of grievances?!" If a single Native American tried to petition the Government for a redress of grievances he has no 1st Amendment protection and should be arrested, but if a large group of Native Americans tried the same task, then they would be protected under the 1st Amendment. That makes a lot of sense.

LOL! You're the one that thinks the term "the people" in the 2nd Amendment means something different than the term "the people" in the 1st, 4th, and 10th Amendments. I'm the one who thinks that this line of thinking is lunacy. I'm the one who has defended my argument using logic, historical facts, legal precedent, and basic grammar. Your argument does not have leg to stand on.

Sure, in fantasy land "the people" may refer to a school of fish. Unfortunately, here in reality, "the people" refers to INDIVIDUAL PEOPLE (as I have proven ad nauseam using text from the Federalist Papers, the Annals of Congress, the 1st Amendment, 4th Amendment, and 10 Amendment).

You are repeating yourself without addressing the point that I made in the previous post. Hence, you force me to repeat myself. So now you are saying that militias are not supposed to take up arms against a tyrannical government (even thought this is how our country was created)? Then what's the point in having a militia that has the right to keep and bear arms, but is not supposed to take up arms (even when faced with a tyrannical government).

Show me examples of his contemporaries viewing him as a "radical libertarian." Thomas Jefferson was a genius and he was respected enough among his contemporaries that he was asked to author the Declaration of Independence at the young age of 32.

No he didn't. His quote, "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants," means that freedom is not free, and if a government that was once free does become tyrannical then it is the duty of those who believe in freedom to fight this tyranny to once again regain liberty.

What's your point? Timothy McVeigh was a psychopath and mass murderer of innocent people, including young children in a daycare center. Adolph Hitler adopted the swastika from a sacred symbol from Buddhism and Hinduism. Does that mean that you think all Hindus and Buddhists today who still look at the swastika as an auspicious symbol support the genocide of Jews and other ethnic groups?

 

I just want to thank all the pro gun supporters for obviously and easily destroying this lunatic historians argument (subject of the post I mean, not the op). It's refreshing to know there are so many Americans who actually understand the constitution and what it's intent is.

 

And your premise and conclusion are that "keep and bear arms" in the Second Amendment is defined as gun ownership outside of the militia.

Stanford historian Jack Rakove:

"One does not have to read very far in the Constitution to learn that the House of Representatives will be 'chosen... by the People of the several States,' but that this people actually consists of a rather smaller set of 'Electors,' U.S. CONST. art. I, § 2, cl. 2, and that the definition of this subset of the whole people will be left to the state legislatures.... The concept of a collective people embracing the entire corpus of private individuals seems strongest or most explicit in the Fourth Amendment's opening reference to 'The right of the people to be secure in their persons.' U.S. CONST. amend. IV. But the Petition and Assembly Clause of the First Amendment can be read as a statement of a right held primarily not by individual rights-bearers, but rather by a community
or a minority that has coalesced for purposes of political action."

So "the people" often has a far less individualistic meaning than you would like it to have in Constitutional text especially when it's paired with a clarifying preamble about the militia.

There is no reason to believe that the Second Amendment was written to protect a right of rebellion. That would contradict what is in the rest of the Constitution. The US Constitution forbids treason and according to Article 1 the militia can even be used to suppress rebellions.

"A little rebellion now and then is a good thing. It is a medicine necessary for the sound health of government. God forbid that we should ever be twenty years without such a rebellion.... The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is it's natural manure."

That quote is Jefferson's reaction to Shay's rebellion in the 1780s. Jefferson's contemporaries had a far different reaction.

"I am mortified beyond expression when I view the clouds that have spread over the brightest morn that ever dawned in any country... What a triumph for the advocates of despotism, to find that we are incapable of governing ourselves and that systems founded on the basis of equal liberty are merely ideal and fallacious."
-George Washington

"Rebellion against a king may be pardoned, or lightly punished, but the man who dares to rebel against the laws of a republic ought to suffer death."
-Samuel Adams

Another quote also shows how far outside the political mainstream Jefferson often was:

"Every constitution then, and every law, naturally expires at the end of 19 years."
-Thomas Jefferson

 

“The thoughtful reader may wonder, why wasn’t Jefferson’s proposal of ‘No freeman shall ever be debarred the use of arms’ adopted by the Virginia legislature? They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
- Benjamin Franklin, "Pennsylvania Assembly: Reply to the Governor", November 11, 1755

"Before a standing army can rule, the people must be disarmed, as they are in almost every country in 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 band of regular troops."
- Noah Webster, An Examination of the Leading Principles of the Federal Constitution, October 10, 1787

"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of."
- James Madison, Federalist No. 46, January 29, 1788

"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, Massachusetts Ratifying Convention, 1788

"For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion."
- Alexander Hamilton, Federalist No. 25, December 21, 1787

"f 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."
- Alexander Hamilton, Federalist No. 28, January 10, 1788

 

Ignorene knows no bounds.

 

where you people fail and fail mightily is that the federal government was never given ANY proper power to regulate what sort of firearms private people could own in their own states. the 2nd Amendment is essentially redundant

 

Alright Galileo, I see others are piling onto you so I will get into the action. As I have said before in other forums I do appreciate you even though I disagree with you. Far too many people make arguments like “guns are bad and you are too for wanting them.” You are one of the rare few who really makes me think about my arguments when I respond.

Your professor is frustratingly vague. He pontificates that the “purpose” of the amendment was to ensure that the national defense would remain in the hands of a militia and not a standing army, but he leaves it at that. He gives no analysis of how the Amendment achieves this goal. Let me start with a little bit of history the professor does not appear to acknowledge namely, the rest of the Constitution, and in particular Congress’ power in Article I Section 8:

"Congress shall have power

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
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."

Now clearly the 2nd. Amendment speaks of arms, and the question is whose arms are being talked about. I believe that neither you nor the professor can ignore Congress’ pre-existing constitutionally codified total power to create a standing national army, and Congress’ concurrent total power over organizing, arming, and disciplining the militias when considering this question. You and the professor are arguing that Heller was wrongly decided, and the Amendment does not protect arms that are privately held unconnected with militia service. But if the militia members are the only ones protected by this Amendment, then you and the professor share some interpretive problems.

1. How can it be a “right of the people” when Congress has total power to define who “the people” are?

Both of you must recognize that militia membership is not a right. It is totally controlled by Congress’ power to organize the militia. If the RKBA in the 2nd Amendment is limited to militia service, and if I wanted to be part of the militia in order to exercise this right, then I must first get the permission of Congress to join the club. Congress has total power to exclude me. Indeed, Congress has the absolute power to declare that the Virginia militia will compose only 10 men, and I am not allowed to be one of them.

How can the amendment read “the right of the people” when your interpretation gives Congress the exclusive power to say who the “people” will be? Should it not read instead “the right of the people whom Congress permits to exercise the RKBA…”?

Also, both you and the professor must acknowledge that the BoR was drafted to limit the power of the federal government. And yet the professor’s definition of the goal of the amendment defines the “right of the people” in a manner that gives the federal government the exclusive power to choose who can and who cannot exercise the right. How does this provide any limitation on that government at all?

2. How can it be a right of the people when Congress has total power over what (if any) arms will be allowed?

Even if I were to be highly favored by my government and allowed into the congressionally selected club of militia membership, then what is the scope of my “right of the people”? Congress has total control over the “arming” of the militia, and thus the total power to tell me what arms I may “keep and bear.” If Congress is full of devout Bible readers, and says David slew Goliath with a sling so that’s all you are allowed to have, then what can I do about it? Congress also has the total power to deny me any arms whatsoever. If Congress watches too many Bruce Lee movies, and decides that all it will provide me with is a robe, a black belt, and Karate training, then what can I do about it? In short, how does my “right of the people to keep and bear arms” allow me to challenge Congress’ total authority over organizing, disciplining, and arming me?

How can it be called a “the right of the people to keep and bear arms” if Congress has total power over that right? How is the right specified in the amendment a limitation on the power of the federal government when the right is interpreted in such a way to give government the total power over the right?

Here is the ultimate issue….Congress already had the power to achieve the very goal the professor says the Amendment was drafted to address. If that is the only purpose for it, and assuming Congress could be trusted, then there is no need for the Amendment. But if Congress is not trusted to achieve this goal on its own, then the Amendment is totally ineffective in achieving the professor’s goal, for it does nothing to limit Congress’ power to ignore the goal, disarm the militias, and create a standing army. You see, the professor’s goal for the Amendment cannot be achieved short of a repeal of Congress’ Article I Section 8 power to organize, arm, and discipline the militias. So long as this power exists, then the professor’s stated goal cannot be accomplished. In my opinion, something more is needed from him other than an argument which in effect says “I have a degree and I say it is so therefore it must be and needs no further explanation.” He needs to explain how his argument does not survive contact with the rest of the Constitution.

Do you or the professor argue that the 2nd Amendment repealed (or at least constrained) this congressional power over the militia? If so, then how? If not, then how does the Amendment reach the goal the professor says it was created to achieve?

Now as far as the professor’s complaint that his training and experience render him a better judge of history let me say this about the history the Court considered. The Court itself is an excellent historian of its own past case law. Here is one such case quote:

“The right there specified is that of bearing arms for a lawful purpose.” United States v. Cruishank 92 U.S. 542, 552 (1876). I would ask the professor to note it says “lawful purpose” and not “militia purpose.”

See also the case most cited by the Brady Campaign, U.S. v. Miller, which ultimately ruled that a “shotgun having a barrel less than 18 inches” had no potential militia value and therefore the 2nd Amendment did not protect its possession. The issue the professor (and Brady) overlooks is the focus of the opinion. Set aside for a moment that Jack Miller jumped bond, died (actually was likely murdered) before the SCOTUS opinion was decided, and no one appeared to argue on his behalf. Jack Miller was a bootlegger caught with a privately held firearm. He was not a militia member and he was not engaged in any militia function when he was caught. If the RKBA applied only to militia arms carried in militia service, then the focus would never have been on the weapon, but on Miller's lack of standing because he was not a militia member. The Court’s ruling would have been very brief: “The 2nd Amendment RKBA applies only to militia members carrying militia arms, and Miller, not being a militia member, lacks standing to bring this claim.” The case would have been dismissed out of hand without any discussion of whether an individual who is not in a militia and was caught with a privately held firearm would be protected by the Amendment.

The bottom line here is no SCOTUS opinion has ever endorsed the “state’s right” or the hybrid “individual militia member’s right” interpretation of the amendment. But the answer to the professor’s complaint is broader than just a review of legal case history. Every court case involves many people who write friend of the court briefs to educate the judges as they consider the issues, and whenever the Court takes up an issue that requires it to look at the history of the founding of our nation historians tend to jump in and have their say in an attempt to educate the justices. Heller was no different. Several members of the “professional historian” class that Mr. Ellis claims membership in submitted briefs in support of the different positions argued. A great many of them are cited by the justices in their opinions. But if professor Ellis submitted a brief then it went unnoticed, for not one single justice cited him in their opinion—not even those who dissented from the majority opinion. (I could not find one in McDonald either). How seriously are we to take a historian who claims to know so much better than the Justices, when he either refused to share his wisdom with them or, if he did, was totally ignored by both sides of the debate?

And, since the professor chooses to live in a glass house, let me throw a historical stone or two back at him which he overlooks. He must know that Madison did not carry the entire load of selling the BoR to the public by himself. Has the professor overlooked how Tench Coxe, Madison’s friend and federalist ally, worked with Madison to ease ratification of the proposed Bill of Rights in his publication “Remarks on the First Part of the Amendments to the Federal Constitution”? Has the professor missed the explanation of the “goal” of the 2nd Amendment:

"As civil rulers, not having their duty to the people duly 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 private arms".

Do you or the professor have any statement from any founder on the goal of the Amendment which runs contrary to this very public explanation of it? Something which says “wait a minute, that’s not what we meant” or “no it only protects arms of serving militia members” or “no it only operates to ensure a strong militia is available for national defense (and here is how it works)”?

But wait, there is a lot more. Is the professor well read on how we have historically viewed the RKBA since the BoR was adopted? For one example, is he aware of the history behind the end of slavery and the passage of the 14th. Amendment?

Has he missed the tremendous outrage expressed over the southern state’s treatment of newly freed slaves? See, for example:

“In Mississippi rebel State forces, men who were in the rebel armies, are traversing the State, visiting the freedmen, disarming them, perpetrating murders and outrages on them. . . .” Congressional Globe, 39th. Congress, 1st. Session, part 1, at p. 40 (December 13, 1865) [Speech of Senator Henry Wilson (Republican-Massachusetts)]

See also a complaint by another Senator that the Mississippi state militia would roam throughout the state and habitually "hang some freedmen or search negro houses for arms." Congressional Globe, 39th. Congress, 1st. Session, part 1, Senate Report Number 30, p. 813 (February 13, 1866) [Speech of Senator Lyman Trumball (Republican-Illinois)]

See also this complaint: “Sir, I find in the Constitution of the United States an article which declares that "the right of the people to keep and bear arms shall not be infringed." For myself, I shall insist that the reconstructed rebels of Mississippi respect the Constitution in their local laws. . . .”Congressional Globe, 39th. Congress, 1st. Session, part 1, p. 1838 (April 7, 1866) [Speech of congressman Sindey Clarke (Republican-Kansas)].

Here is my question…If the Amendment only protects the effectiveness of the state militias, then how can there be a complaint that the militia is denying non-members (whose only offense is being black) the RKBA? They have no such RKBA if these congressmen understood the Amendment the way the professor insists it should be read. So long as the militia was strong enough for national defense, then how can the Amendment be looked to as a restriction on the crimes the militia chooses to commit against its own citizens?

Look further at how the 14th. Amendment was introduced by its senate sponsor:

“To these privileges and immunities should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.. . .[A]ll these immunities, privileges, rights, thus guaranteed by the Constitution or recognized by it, are secured to the citizens solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. . . .The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees...”Congressional Globe, 39th. Congress, 1st. Session, part 3, p. 2765 (May 23, 1866) [Speech of Senator Jacob M. Howard (Republican-Michigan)]

And look at how the Senate reacted to Senator Howard’s description of the Amendment: “In the entire Senate debate on the Fourteenth Amendment, running from May 23 to June 8, not a single senator challenged Senator Howard's declaration that Section 1 made the first eight amendments enforceable against the states.” Irving Bryant, The Bill of Rights, p. 337 (1965).

Now here is a question….Are they really talking about an individual RKBA outside militia service—a right of freed black citizens to not be privately disarmed and left to the mercy of a racist militia? Or does the professor make the absurd argument that the founders of the 14th. Amendment had the goal of applying the 2nd Amendment as a restriction upon the states merely to force Mississippi to make sure that as its militia went around disarming and killing blacks it was at least well trained and equipped enough to provide a strong national defense?

The argument itself is absurd. But if that remains the professor’s belief—that the only goal of incorporating the RKBA against the states to ensure Mississippi had a strong and well-armed militia for federal use—then the professor missed some more history. In this case, how the black community viewed the RKBA and the 2nd. Amendment being applied to the states:

Editor Loyal Georgian: Have colored persons a right to own and carry firearms?--A Colored Citizen
Almost every day we are asked questions similar to the above. We answer certainly you have the same right to own and carry arms that other citizens have. You are not only free but citizens of the United States and as such entitled to the same privileges granted to other citizens by the Constitution. . . .
[and]

Article II, of the amendments to the Constitution of the United States, gives the people the right to bear arms, and states that this right shall not be infringed. Any person, white or black, may be disarmed if convicted of making an improper or dangerous use of weapons, but no military or civil officer has the right or authority to disarm any class of people, thereby placing them at the mercy of others. All men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves." From issues of the Loyal Georgian, January 20, 27 and February 3, 1866.

Ah, but this history and the case quotes are not from the founding era and therefore is of little consequence, you or the professor may argue. Nevertheless, how can so many people—from so many different backgrounds—consistently get it wrong for so long? Does the good professor opine that he is that much smarter than all those who have gone before? If so, then could you please ask him to come down from the academic equivalent of Mount Olympus long enough to grace us with his explanation of how the amendment is supposed to achieve the purpose he claims it was created for? I’d sincerely like to hear him try to do it.

In short, Galileo, I believe your professor’s sources are derived this way….He is like a man that goes to a crowded cocktail party, and when he arrives he ignores the vast crowd who disagrees with him and stands on the tip of his toes looking for his few friends who are huddled together in the corner. He spends his entire time with them, and when asked later about the “history” of the party he can only tell you which of his friends were there. He either has no memory of or desire to remember the rest of the history of the party.

Is there more of his on these issues which you would be willing to share with me? I find him not to be very credible so far, at least from this sampling of his thoughts.

 

What the Tenth Amendment originally meant, most likely, was that citizens theoretically had all the rights that the States gave them, and for the federal government to infringe on the rights of a State's citizens could effectively be an infringement on the rights of the State itself.

 

One need to only look at the historical documents from Virginia that were used as a blueprint for the Bill of Rights to see that the second amendment was always intended to be as your source discusses.

 

Which one of congress' enumerated powers would you say enables it to enact legislation interfering with the ability of the people of the several states from keeping and bearing arms?

 

Well, that's the SCOTUS's conclusion as well.

 

I think focusing on this one question may clarify some of my views. I think the Second Amendment was written as a vague assurance that the federal government would not abuse its power over the militia. I think the main concern was that the militia would simply be neglected and thus be unarmed, undisciplined, and not organized. Someone in the First Congress also raised a concern about the conscientious objector clause being used to justify excluding a large number of people from the militia. That clause was deleted, but it does show some concern about the federal government potentially limiting militia membership to a small number of people. The anti-federalists wanted more. They wanted an explicit recognition that the states could also organize, arm, and discipline the militia. Did it have the actual effect of repealing or limiting Congressional power over the militia? I'm not sure that was what it was intended to do. It may have been more viewed as a statement of principle rather than a legally enforceable claim. Madison had earlier voiced his opinion that bills of rights were mere parchment barriers and that the greatest threat to the rights of the people was the people (in the form of the majority oppressing the minority), not the government. He referred to his work on the Bill of Rights as a "nauseous project." He helped draft the Bill of Rights for mainly if not solely political reasons. He did it to keep a campaign promise and to placate the anti-federalists who he feared would hold a second constitutional convention and try to create a new government and constitution.