Gary on… The Second Amendment!

Gary on… The Second Amendment! July 23, 2019

As many of you will know, I wrote a couple of posts recently on the ontology of rights that brought a whole host of gun rights advocates to the blog to splurge their stuff. What was hilarious, and should be a little embarrassing for them, is that I wrote the last one specifically demanding an establishment of the ontological reality of rights and they, to a man, utterly failed to do so, preferring to hijack the thread again with their usual claims about guns and the second amendment in ways unconnected to the intention and content of the post. They simply either did not understand the post or knew that they were on a hiding to nothing and so diverted the conversation.

Essentially, they failed to establish some kind of ontological realism upon which to base the Second Amendment. I mean, really, bloody failed. This is a philosophical blog, amongst other things, and so I was hoping for some philosophy. I was sadly disabused of this hope rather quickly.

Abject failures aside, let me post for you an email I received on the subject of the Second Amendment from Gary. Here it is:

1.  The 2nd amendment serves no purpose in modern times and should be repealed, in that there is no indication that any former King has the where-with-all or desire to attempt to take control of the U.S. The fear that the Founding Fathers had has passed. That ship has sailed, that train has left the station, and they’re not coming back. Also, the form of government that the Founding Fathers set up and is still in place does not exist by force or coercion of the governed, but rather by the consent of the governed, and therefore armed citizens fighting against the oppression of the government would need to be armed with votes, rather than guns.

2.  Should the 2nd amendment continue to stand, it should be enacted in the manner in which the Founding Fathers intended (This will get a little lengthy…).

“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 Second Amendment commences with: ”A well regulated militia…” What is important to note is that this amendment is first and foremost about militias, and only secondarily about firearms. What was a militia at the time the Constitution was developed? Each state had its own militia, comprised of a military force of 18 – – 45-year-old white males who served as part-time soldiers. The fact that the Second Amendment is primarily about the militia was confirmed in 1939, when the U.S. Supreme Court ruled in U.S. v. Miller, 307 U.S. 174 that the “obvious purpose” of the Second Amendment was to “assure the continuation and render possible the effectiveness” of the state militia. “It must be interpreted and applied with that end in view.” The U.S. Court of Appeals further confirmed this for the Eighth Circuit, when it wrote that the courts “have analyzed the Second Amendment purely in terms of protecting state militias, rather than individual rights.” United States v. Nelson, 859 F.
2d 1318 (1988).

What was “well regulated” about it? Its members were subject to the requirements of training, supplying their own firearms, and engaging in military exercises away from home. It was a form of compulsory military service to the individual state, with the purpose of protecting the resident state, other states, and the new country from outside forces and internal rebellions. Well regulated also meant that the militia was subject to the rule of law, a military discipline with officers and enlisted men, and penalties for disobeying orders. It is interesting to note that Noah Webster’s Dictionary of 1828 defines “militia” as: “…the able bodied men organized into companies, regiments and brigades, with officers of all grades, and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations.”

So, upon who did the requirement of regulating the militia fall upon? The answer is: “The national authority,” that is, the Federal Government. And to whom did the responsibility of appointing the officers fall upon? The State Governments. And under who’s prescribed discipline were they to operate? The Congress. How do we know this? Because Alexander Hamilton told us so in the Federalist Papers:

FEDERALIST PAPERS Federalist No. 29 Concerning the Militia-From the Daily Advertiser.Thursday, January 10, 1788
Author: Alexander Hamilton

To the People of the State of New York:
THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.

It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union “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.”

Hamilton continues that the militia has requirements for meeting: “it will be necessary to assemble them once or twice in the course of a year.”

James Madison concurs that the militias are required to have officers appointed by the State Governments:

FEDERALIST PAPERS-Federalist No. 46The Influence of the State and Federal Governments Compared From the New York Packet. Tuesday, January 29, 1788.
Author: James Madison

To the People of the State of New York:
“. . . The existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, . . .” “ . . . and of officers appointed out of the militia, by these governments, and attached both to them and to the militia . . .”

The second part of the sentence is “being necessary to the security of a free state.” This tells us that the militia was formed for the purpose of keeping the state free. A state is a territory and its occupants organized under a recognized government. The militia is to serve to the security of the government, and to counterbalance the federal army if the latter were used as an instrument of oppression.

The third part of the sentence is “the right of the people to keep and bear arms, shall not be infringed. ” The meaning of this is clear: People had the right to own and bear arms. The arms they had the right to bear were the ones in common usage of the day, which in the eighteenth century were necessitated by the need to hunt for food, as well as provide a defense against Indians who were less than pleased with the theft of their land and the decimation of their people. In the eighteenth century, the most sophisticated piece of personal armament was the Ferguson breech-loading flintlock, of which only about 200 were ever made. Most people had muzzle-loading smoothbore muskets. These were the arms the Founding Fathers understood and established the right to keep and bear: One-shot firearms capable of limited lethality, incapable of being concealed, and awkward to use.

And finally, who is to be the commander of the militia? The President. How do we know this? Alexander Hamilton tells us so:

FEDERALIST PAPERS-Federalist No. 74The Command of the Military and Naval Forces, and the Pardoning Power of the Executive From the New York Packet Tuesday, March 25, 1788.
Author: Alexander Hamilton

To the People of the State of New York:
THE President of the United States is to 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.” The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it.”

If the Founding Fathers did not intend the second amendment to state that arms shall be born in the service of a well-regulated militia & the security of a free state, why didn’t they just say “The right of the people, individually and collectively, to bear arms shall not be infringed?” Why throw in the militia and state security language when that wasn’t their concern?

The right to keep and bear arms, as written in the Second Amendment, according to the Founding Fathers and the Supreme Court in 1939, is to have the well-regulated militia armed when providing for the security of the state, under officers appointed by the state, regulated by the national authority, under discipline prescribed by Congress, and under the command of the President.



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