USA 2nd Amendment....first history #3

USA 2nd AMENDMENT: from the book --  "A Well Regulated Militia" by Professor Saul Cornell

Continuing from previous post:

Mason took a leading role in drafting Virginia's declaration of rights, and his efforts reflected ideas he had developed in his earliest public writings about the need for a well-regulated militia. Edmund Randolph, another influential figure in Virginia politics, remarked that Masons proposal "swallowed up all the rest, by fixing the grounds and plan, which after great discussion and correction, were finally ratified." Masons first draft did provoke some controversy among Virginians because it affirmed "that all Men are born equally free and independent." Some members of the Virginia convention opposed such language, fearing that it might undermine the institution of slavery and incite slaves to rebel. Edmund Randolph recollected that such objections were easily satisfied by reminding delegates that "with arms in our hands, asserting the general rights of man, we ought not to be too nice and too much restricted in the declaration of them." The connection between the militia and the slave patrols that protected Virginians against the threat of slave insurrections was well understood by Mason and others. Although the committee followed Mason's language closely, the affirmation of the need for a well-regulated militia departed from his earlier statements in one important respect. It abandoned any reference to a militia composed or officered by gentlemen. The final language adopted by Virginia asserted that the militia was "composed of the body of the people."¹⁷

When the committee charged with producing the declaration of rights revised Mason's original draft, they settled on the following language:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.^{18 .........}

The lengthy militia statutes enacted by the individual colonies and then revised by the states after they gained independence constituted the largest body of law dealing with firearms. These regulations could be quite intrusive, allowing government not only to keep track of who had firearms, but also requiring citizens to report to muster or face stiff penalties. The individual colonies used their broad police powers to regulate the nonmilitary use of firearms in a variety of ways.

Regulations governing the storage of gunpowder were among the most common. States also prohibited the use of firearms on certain occasions and in certain locations. A good example of the breadth of the state's police powers is provided by a regulation forbidding Boston residents from storing loaded firearms in any domestic dwelling. The 1786 statute, "An act in addition to the several Acts already made for the prudent Storage of Gun Powder within the Town of Boston," empowered the town's fire wardens to confiscate weapons and impose stiff fines for violating this law.33

The state also retained the right to disarm groups deemed to be dangerous. While the state could not pass English-style game laws that unilaterally disarmed the entire population, it could use loyalty oaths and enact discriminatory legislation to disarm particular groups in society that posed a risk to public safety. Although the language of Pennsylvania's constitutional provision on arms bearing was among the most expansive, the state also adopted one of the most stringent loyalty oaths. The Test Acts, as they were known to contemporaries, barred citizens who refused the oath from holding public office and serving on juries. These individuals were also to be disarmed, as "persons disaffected to the liberty and independence of this state."³⁴ The acts thus stripped many but not all the essential rights of citizenship from a large segment of the population, perhaps as much as 40 percent of the citizenry. Individuals who failed to take the oath could still publish, assemble, and seek petition for redress of grievances, but they were not full participants in the civic life of their state. Their status fell somewhere between full citizens and resident aliens. Although loyalty oaths were enacted in other states, the Pennsylvania Test Acts were not repealed until long after the treaty of Paris was signed in 1783 and formal hostilities with Britain ended. The oaths did more than address the special situation faced by the state during wartime; they reflected a more fundamental belief that citizenship was tied to a set of legal obligations and demanded a certain level of public virtue. One other type of systematic disarmament policy was common. Laws disarming groups such as slaves, freed blacks, Indians, and those of mixed-race ancestry were common. Thus, Pennsylvania prohibited "any Negro" to "carry any Guns, Sword, Pistol, Fowling-Piece, Clubs, or other Arms or Weapons whatsoever" without "his Master's special Licence." Since blacks were ineligible to bear arms, the prohibition was phrased as a limit on carrying weapons.³⁵

The legal difference between laws regulating civilian gun use and laws pertaining to bearing arms was an important one. The state enjoyed far greater authority over the former type of activity. A good illustration of this principle may be found in a bill introduced by the young James Madison during his time as a legislator in Virginia. In a "Bill for the Preservation of Deer," Madison proposed a stiff penalty for individuals who hunted out of season. The most interesting features of this law penalized persons who "shall bear a gun out of his inclosed ground, unless whilst performing military duty." The language of this provision provides a remarkable window into the way Madison understood the differences between bearing a gun for personal use and for the common defense. The state clearly retained the right to regulate the use of firearms and differentiated between the level of restrictions that might be placed on bearing a gun and bearing arms.³⁶

Even in the absence of any legislation regulating the right to keep or carry firearms, there were a variety of constraints embedded in the common law. The common law also provided some modest protection for a right to keep or carry firearms for personal protection. The nature of the common law made it particularly well suited to deal with the complex problem of regulating firearm use. The genius of the common law was that it was an organic entity, capable of evolution and growth. The meaning of self-defense was an excellent illustration of this dimension of the common law. The natural right of self-defense had evolved slowly into the more limited right embodied in the common law. These changes reflected the accumulated wisdom of countless judges who had struggled with the difficult task of balancing the right of self-defense with the need to protect public safety.³⁷

The right to travel armed was severely constrained under common law. The author of English Liberties, of the Free-born Subject's Inheritance, a popular English legal text reprinted in the colonies, defined an affray as a crime against the king's peace and that "constables may take away the Arms of them who ride or go armed in Terror of the People." Another influential legal text, The Conductor Generalis, the Office, Duty, and Authority of Justices of the Peace, noted that "in some case there may be an affray, where there is no actual violence; as where a man arms himself with dangerous and unusual weapons, in such a manner as will naturally cause terror to the people." Under British law armed travel was regulated, and mere possession of arms likely to provoke a public panic was also punishable. Popular guides to the law published after the Revolution continued to devote considerable space to the subject of affrays. The nature of the common law provided considerable flexibility in deciding exactly what constituted an affray. Context was crucial to making these kinds of determinations. In America, where legal restrictions on hunting were far more lax and gun ownership more common, the crime of affray was more narrowly defined than in England. A party of men hunting in season in Pennsylvania would not under most circumstances have been viewed as committing an affray, while an armed assembly riding into town might well be viewed as such and could be legally disarmed by a justice of the peace.³⁸

SHAYS'S REBELLION

..........A few days after the events in Northampton, another crowd of farmers closed the courts in Worcester. This time Governor Bowdoin took decisive action and called out the militia. Rather than follow the orders of the governor and disperse the insurgents, however, a large number of the town's militia refused to march against the protestors. Some members of the militia even joined ranks with the rebels they had been sent to quell. A similar scenario played out in Great Barrington. Once again the government dispatched the militia to liberate the court from the mob. When the militia met up with the Regulators, a member of the crowd suggested putting the matter to a vote: supporters of opening the court stood to one side of the road while those opposed crossed the highway. Nearly eight hundred of the thousand militia members who had been sent to protect the courts voted with their feet to join the rebels and keep the courts closed.⁴³

For Shays and his supporters, the actions of those citizens who had refused to take up arms against the Regulators were a living proof of the superiority of a citizens' militia over a standing army. In contrast to professional soldiers, who would have had few scruples about opening fire on an assembly of citizens, a militia composed of the body of the people would never be party to such an act. For the Friends of Order, the supporters of government authority, the refusal of the western militia to muster against the Regulators only confirmed the weakness and inadequacy of the militia as a bulwark against anarchy. Shays's rebellion exposed a tension in American constitutional theory: was the militia an agent of government authority, or was it a popular institution that might serve as a check on government? The notion that the militia might effectively nullify an unjust law by refusing to enforce it, or in extreme situations actually take up arms against the government, were two of the most radical ideas to emerge out of the intellectual ferment of the Revolutionary era. Both of these ideas had been put into practice during Shays's Rebellion.⁴⁴

Regulators defended their actions in a language that reflected a strong corporate sensibility that was itself rooted in their desire to defend their local communities against outside threat. 

Men did not act alone as isolated individuals, but acted in concert with one another as a public body. In the view of the Shaysite Luke Day, the Regulators were literally "the body of the people assembled in arms." Shays and his followers were not radical individualists, but strongly communitarian and localist in their outlook. For backcountry radicals such as the Regulators, the militia was an expression of the locality, not a creature of the state.^45......

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^{THAT  IS  ALL  I  SHALL  GIVE  YOU.  THIS  BOOK  BY  PROFESSOR CORNELL  "A  WELL  REGULATED  MILITIA"  -  A  BOOK  THAT  FULLY  EXPOUNDS  THE  HISTORY  BEHIND  THE  USA  SECOND  AMENDMENT,  SHOULD  BE  IN  YOUR  HOME  LIBRARY,  FOR  YOUR  CHILDREN,  GRANDCHILDREN,  FRIENDS,  OR  ANYONE  WHO  IS  INTERESTED  IN  THE  TRUTH  OF  THE  MATTER  REGARDING  THE  USA  2ND  AMENDMENT.  THE  BOOK  AS  I'VE  PREVIOUSLY  MENTIONED  WAS  UNDERTAKEN  WITH  MANY  MANY  PEOPLE  BEING  INVOLVED  IN   ITS   RESEARCH  TO   UNCOVER  THE  TRUTH  OF  THE  SECOND  AMENDMENT.}

^{CHAPTER  TWO:}  

^{THE  ORIGINS  OF  THE  SECOND  AMENDMENT}

^{CHAPTER  THREE:}  

^{THE  TRUE  PALLADIUM  OF  LIBERTY}

^{CHAPTER  FOUR:}  

^{MILITIAS,   MOBS,  AND  MURDER:  TESTING  THE  LIMITS  OF  THE  RIGHT  TO  BEAR  ARMS} 

^{CHAPTER  FIVE:}  

^{RIGHTS,  REGULATIONS, REVOLUTION:  THE  ANTEBELLUM               DEBATE  OVER  GUNS}

^{CHAPTER  SIX:}  

^{INDIVIDUAL  OR  COLLECTIVE  RIGHT:  FOURTEENTH  AMENDMENT AND THE ORIGINS  OF  THE  MODERN  GUN  DEBATE}

^CONCLUSION:  

^{A  NEW  PARADIGM  FOR  THE  SECOND  AMENDMENT}

^..........