Is the "Right" in the 2nd Amendment a "Personal, Individual Right"?
by Steven Krulick
PO Box 467, Ellenville NY 12428
© 2005, 2008, Kryolux Inc
It’s already been noted (see Terms.htm) that "bear arms" means more than just a private citizen "carrying a gun.":
Aymette v. State, 2 Humphreys 154 (Tenn. 1840)
"The 28th section of our bill of rights provides "that no citizen of this state shall be compelled to bear arms provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane."
(But this case also explained what the purpose of bearing arms in militia context referred to, in reference to the Kentucky state constitution; it also applies to Pennsylvania’s earlier one of 1776.)
"And, as in their constitution the right to bear arms in defence of themselves is coupled with the right to bear them in defence of the state, we must understand the expressions as meaning the same thing, and as relating to public, and not private, to the common, and not the individual, defence."
So, as much as one may WANT TO believe that "themselves" individualizes things, Aymette says otherwise. This is simply the most un-affected term that can be used to refer to common defense of entities smaller than the state itself. That is, the PEOPLE of a town or county have the right to common defense of THEMSELVES just as much as the PEOPLE of the state. How else can you state it?
Here’s a seminal Texas case from the same general era:
Cockrum v. State, 24 Texas 394 (1859):
The clause in the constitution of the United States, that it is said to be in violation of, is the 2d article of the amendments: "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." O. & W. Dig. 7. The clause in the constitution of this state, which it is said to violate, is the 13th section of the bill of rights: "Every citizen shall have the right to keep and bear arms, in the lawful defense of himself or the state." O. & W. Dig. 14.
The object of the clause first cited, has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed. The clause cited in our bill of rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen. The right of a citizen to bear arms, in the lawful defense of himself or the state, is absolute. He does not derive it from the state government, but directly from the sovereign convention of the people that framed the state government.
***The clause cited in our bill of rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen.***
IF the 2nd Amen secured a personal right, how could he have made this statement? If the Texas state constitution didn’t recognize a PERSONAL right to keep and bear arms, how could he have said it does? The term "in addition thereto" is mutually exclusive.
The history of the US Constitution can’t be taken outside the context of the STATE constitutions and their consistent MILITIA provisions and contexts:
When the term "the people" or "the People" is used, it is STILL NOT just the plural of "person" or simply "people" but THE PEOPLE, the enfranchised body politic in its collective and political capacity! And look at the REST of the context:
Pennsylvania 1776: "That the people have a right to bear arms for the defence 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."
See? ALL about the militia!
See Pennsylvania Test Acts of 1777 for how "personal" these rights WEREN’T to the same men who WROTE the above right in their 1776 Bill of Rights!
The Right To Be Armed: A Constitutional Illusion
by Dennis Henigan, Director, Legal Action Project
(Originally published in the San Francisco Barrister, December, 1989)
"Then there’s the original Virginia Bill of Rights, the first adopted, that expressed both the colonists’ allegiance to the idea of a citizen militia and their fear of standing armies:
"That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense 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." Reprinted in Sources of Our Liberties 312 (Perry & Cooper ed. 1959)
There is little doubt that this provision of the Virginia Bill of Rights was concerned exclusively with the distribution of military power and the proper role of the military in a free society. The language makes no suggestion of a right to bear arms.
[In fact, the word "right" or "rights" isn’t mentioned AT ALL! So THEY considered it A RIGHT, of ITSELF, that a well regulated militia for State defense merely EXISTED!]
The first state to adopt such language was Pennsylvania, which did so as part of its constitutional provision addressing military matters:
[Let me repeat THAT: "which did so as part of its constitutional provision addressing military matters"]
"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. "
Other state constitutions proceeded to adopt variations of either the Virginia or Pennsylvania models. The states which included "right to bear arms" language did so in the context of provisions dealing with military matters.
[Let me repeat THAT: "did so in the context of provisions dealing with military matters"]
...Thus, there is no indication from the history of the 2nd Amendment that the Founders were seeking a broad guarantee of the individual right to own firearms for any purpose. On the contrary, the expressed intention of the framers was to guarantee that state militias remained armed and viable, and the "right to keep and bear arms" must be understood as implementing that purpose. The implication of this intention is that the constitutionality of a statute regulating firearms should turn on whether the statute affects firearms in such a way as to adversely affect a state’s ability to raise and maintain an armed "well-regulated militia."
Obscuring the 2nd Amendment
by Mark D. Polston
Second, [Linda K.] Miller implies that four state constitutions recognized an inalienable and individual right to keep and bear arms, the origins of the Second Amendment the textbook authors ignore. But two of the states expressly limited this right to defense of country.
Virginia’s Constitution of 1776 -- which did not contain a right to bear arms, contrary to Miller’s article -- championed the militia and warned against standing armies:
"That a well-regulated Militia, composed of the body of the people, trained to arms, is the proper, natural and safe defense 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. "
Pennsylvania’s Declaration -- Miller’s model of the inviolable, individual right to bear arms -- also expressly warns against standing armies. But instead of balancing a "militia clause" against a standing army, Pennsylvania substituted an "arms clause." Just as in Virginia, that clause also preceded the warning against a standing army and stated "[t]hat the people have a right to bear arms for the defense of themselves and the state." Rather than establishing an inalienable and individual right to bear arms, it assured the supremacy of the militia.
[Let me repeat THAT: "Rather than establishing an inalienable and individual right to bear arms, it assured the supremacy of the militia."]
Only one other state reproduced Pennsylvania’s language -- Vermont. Nonetheless, Miller criticizes textbook authors’ descriptions of state governments if they failed to mention that Pennsylvania was the first state to guarantee a right to bear arms. At best, such criticism is overboard; at worst, it is, itself, a politicized distortion of history.
Professor Saul Cornell brings up another example from the Pennsylvania Declaration of Rights(http://www.gunlawsuits.org/pdf/defend/second/symposium.pdf):
"The people of the state have the sole exclusive and inherent right of governing and regulating the internal police of the same." If you try and substitute "individual right" in there it doesn't make any sense. That, obviously, is a collective right.
At the same syposium (see URL above), historian Michael Bellesiles added:
The Federalists hoped to build a Federal government stronger than its predecessor, and that the Second Amendment -- again, Prof. Cornell has done a terrific job, I think, explaining this -- the Second Amendment must be placed within that historical context, the effort of this first government to survive.
They were not writing the suicide pact. They were not writing a constitution which gave over to the body of the people an insurrectionary right… that the people have a right to individual firearms ownership so that they can, when necessary, overthrow the government.
This is, in the context of the origins of the American Republic, insane. But more importantly -- it is an error to think that the anti-federalists favored an individual right to gun ownership. And they were the losers. But I think what's even more important in all this is that there is a legislative track record here. There are statute laws, there are court decisions through the antebellum period which tells us precisely how the framers of the Constitution and their immediate successors thought of the right to bear arms and what its nature was. James Madison himself, in presenting the Second Amendment -- why isn't this quoted more often -- in presenting the Second Amendment to Congress, said that what he feared most were the common people, that what we need to do is strengthen the Federal government. That was his understanding of the Second Amendment. It was being introduced in this context.
To be very precise, he said, "The greatest danger to our republic lies not in the executive branch, but mainly in the body of the people operating by the majority against the minority." He then goes on to insist that the Second Amendment must be understood within the context of Article I, Section 8 of the Constitution, which gives the Federal government control over the militia. That's Madison. He wrote it. He must have known what he was talking about.
Let's give a few examples. In the 70 years immediately after ratification of the Second Amendment gun laws were passed in every state. Every state regulated gun ownership. They regulated the quality of firearms, the quantity of munitions that could be produced, where they could be stored.
Boston was not alone in forbidding the carrying of or keeping a loaded firearm even in your own home. It was seen to be very unsafe. Most states had a Concealed Weapons Act, which are the opposite of our Concealed Weapons Acts… No one, not even police officers, were allowed to carry concealed weapons in most states. Even the western territories in the years prior to the Civil War had Concealed Weapons Acts. Police in Oklahoma were not allowed to carry guns under any circumstances except for when they were on duty in Oklahoma territory. In Washington territory they had laws, like most territories, against the display of firearms. To even show one in public was illegal and was prosecuted. These laws were enforced. There are laws about the storage, the sale, and the maintenance of firearms.
And most importantly, of course, there were laws forbidding Catholics from carrying firearms. You have all heard of the Know Nothing Party, right? They won in lots of states. The first thing they did was disarm Catholic militias. There was no violent opposition to this disarming.
There were laws that clarified which religion and which races could own firearms. Black people, slave or free, in most states in the United States were not allowed to own guns. Individual right? Define "individual." If it includes every person living in the United States, it doesn't apply. Are we talking only about those people who have civic rights? Then why can't Catholics own guns?
Aymette v. State, 2 Humphreys 154 (Tenn. 1840): "And, as in their constitution the right to bear arms in defence of themselves is coupled with the right to bear them in defence of the state, we must understand the expressions as meaning the same thing, and as relating to public, and not private, to the common, and not the individual, defence."
See? PUBLIC not INDIVIDUAL defence!
A 70-year-old free white property-owning male in 1791 had no direct involvement in any "keeping and bearing arms" in militia service; but as a member of THE PEOPLE, he shared, to the extent of ONE VOTE, in the distributive right that let each member of the PEOPLE CLASS vote on their state reps who administered the well regulated state militias. A 30-year-old free white male MAY or MAY NOT have been IN the militia; he had to be able-bodied, not one of a variety of public officials, postman, ferryman, minister, school teacher, or conscientious objector, which meant exemption from "military service in person"; HE had the same distributive right to vote as the man twice his age did. A man 17-45 who was able bodied and met all the specs and who wasn’t exempt, DID have the additional right/duty to serve, as well as the other rights he shared with every other member of THE PEOPLE CLASS.
Now, individuals NOT in THAT CLASS, which, in 1789, was blacks, women, kids, felons, aliens, indians, for the most part, had NO 2nd Amen rights at all! No distributive rights, and didn’t share in the collective rights. And most certainly no personal individual 2nd Amen federal right to "own and carry any guns one pleased"; but then NONE of the others had THAT right either, as the 2nd Amen is simply SILENT on "owning and carrying guns" independent of militia service!
Now, much has been made by some that ONLY individuals can HAVE rights, and that STATES can’t have rights. This is not the case, and the Federal era documents prove this:
First, here’s a cite from the Bouvier Law Dictionary, THE authoritative source for what terms USED in the Constitution meant.
The definition for the CONSTITUTION OF THE UNITED STATES OF AMERICA in Bouvier includes the 12 amendments ratified up to 1856:
13. - 1. Relates to religious freedom; the liberty of the press; the right of the people to assemble and petition.
14. - 2. Secures to the people the right to bear arms.
21. - 9. Secures to the people the rights retained by them.
22.- 10. Secures the rights to the states, or to the people the rights they have not granted.
[notice, RIGHTS are secured to THE STATES!]
So here’s what Hamilton has to say in Federalist #84 (caps his):
"I shall only observe that as it is a plain dictate of common-sense, so it is also an established doctrine of political law, that "STATES NEITHER LOSE ANY OF THEIR RIGHTS, NOR ARE DISCHARGED FROM ANY OF THEIR OBLIGATIONS, BY A CHANGE IN THE FORM OF THEIR CIVIL GOVERNMENT.""
See, Hamilton says that states have rights!
In late 18th Century official documentation AND deliberations, including the US Articles of Confederation, US Constitution convention and ratification conventions, Jefferson’s comments on his contribution to the BoR, and the words of prominent anti-ratificationist Luther Martin, is PROOF that the Founders certainly believed that to be so!
[I have put RIGHT or RIGHTS in upper case to make it easier to spot; they do not appear that way in the original]
The Articles of Confederation:
To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting.
Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.
I.The Stile of this Confederacy shall be "The United States of America".
II.Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and RIGHT, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
IX.The United States in Congress assembled, shall have the sole and exclusive RIGHT and power of determining on peace and war...
The United States in Congress assembled shall also have the sole and exclusive RIGHT and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States -- fixing the standards of weights and measures throughout the United States -- regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative RIGHT of any State within its own limits be not infringed or violated...
Thus proving that, OFFICIALLY, at least to the authors of the AoC, that states EACH have and retain powers, jurisdictions, AND RIGHTS not expressly delegated, including legislative RIGHTS, and that the US govt and Congress have RIGHTS AND POWERS.
As the new Constitution was being created and debated, what did the participants say about whether individual states, AND the NATION of states, AND the Federal Government itself had rights?:
The Debates in the Several State Conventions on the Adoption of the Federal Constitution [Elliot's Debates, Volume 5]
On to the Constitutional Convention: August 18-20, 1787
In Convention. -- Mr. PINCKNEY submitted to the House, in order to be referred to the committee of detail, the following propositions: -- "The United States shall be forever considered as one body corporate and politic in law, and entitled to all the RIGHTS, privileges, and immunities, which to bodies corporate do or ought to appertain."
"To fix, and permanently establish, the seat of government of the United States, in Which they shall possess the exclusive RIGHT of soil and jurisdiction."
Mr. KING moved to insert, before the word "power," word "sole,"
giving the United States the exclusive RIGHT to declare the punishment of treason.
Mr. WILSON. In cases of a general nature, treason can only be against the United States; and in such they should have the sole RIGHT to declare the punishment;
[THUS, according to Framers of the Constitution, The United States is one body corporate with RIGHTS -- I guess collective entities DO have rights after all! -- Congress has the RIGHT of soil and jurisdiction over DC, having sole power to declare punishment is equal to the exclusive or sole RIGHT to do so.
THIS would seem to confirm that the the FEDERAL GOVT HAS RIGHTS as well as powers, and that, in at least THESE instances, the RIGHT to do something is IDENTICAL to the POWER to DO IT!]
Was this an aberration, an idiosyncratic one-time-only flub? Let’s go from Philly to Hillsborough:
The Debates in the Several State Conventions on the Adoption of the Federal Constitution [Elliot's Debates, Volume 4]
Debates in the Convention of the State of North Carolina, On the Adoption of the Federal Constitution.
Mr. DAVIE. It is well known that Congress had a discretionary RIGHT to raise men and money; but they had no power to do either...
The encroachments of some states on the RIGHTS of others, and of all on those of the Confederacy, are incontestable proofs of the weakness and imperfection of that system.
Mr. IREDELL. But the fact is, that they have, by degrees, increased their power to an astonishing degree, and, when they think proper to exert it, can command almost any thing they please. This great power they enjoy, by having the name of representatives of the people, and the exclusive RIGHT of originating money bills. What authority, then, will our representatives not possess, who will really represent the people, and equally have the RIGHT of originating money bills?... The circumstance of their representing the great body of the people, alone gives them great weight. This weight has great authority added to it, by their possessing the RIGHT (a RIGHT given to the people’s representatives in Congress) of exclusively originating money bills...
It says, expressly, that the House of Representatives shall consist of members chosen for two years, and that the Senate shall be composed of senators chosen for six years. At the expiration of these terms, the RIGHT of election reverts to the people AND the states;
Mr. SPENCER. Mr. Chairman, it appears to me that this clause, giving this control over the time, place, and manner, of holding elections, to Congress, does away the right of the people to choose the representatives every second year, and impairs the RIGHT of the state legislatures to choose the senators...
... and their knowledge of the ultimate RIGHT of Congress to collect taxes would stimulate their exertions to raise money. But if the power of taxation be given in the first instance to Congress, the state legislatures will be liable to be counteracted by the general government in all their operations... The RIGHT of Congress to lay taxes ultimately, in case of non-compliance with requisitions, would operate as a penalty, and would stimulate the states to discharge their quotas faithfully.
Gov. JOHNSTON. Mr. Chairman, in my opinion, if there be any difference between this Constitution and the Confederation, with respect to treaties, the Constitution is more safe than the Confederation. We know that two members from each state have a RIGHT, by the Confederation, to give the vote of that state, and two thirds of the states have a RIGHT also to make treaties.
Mr. DAVIE. Mr. Chairman, although treaties are mere conventional acts between the contracting parties, yet, by the law of nations, they are the supreme law of the land to their respective citizens or subjects... The power of making treaties has, in all countries and governments, been placed in the executive departments... ; because, by the Confederation, Congress had power to make treaties. It was one of those original RIGHTS of sovereignty which were vested in them; and it was not the deficiency of constitutional authority in Congress to make treaties that produced the necessity of a law to declare their validity; but it was owing to the entire imbecility of the Confederation.
Mr. SPENCER. I can see no power that can keep up the little remains of the power of the states. Our RIGHTS are not guarded. There is no declaration of rights, to secure to every member of the society those unalienable rights which ought not to be given up to any government. Such a bill of rights would be a check upon men in power. Instead of such a bill of rights, this Constitution has a clause which may warrant encroachments on the power of the respective state legislatures. I know it is said that what is not given up to the United States will be retained by the individual states. I know it ought to be so, and should be so understood; but, sir, it is not declared to be so.
In the Confederation it is expressly declared that all RIGHTS and powers, of any kind whatever, of the several STATES, which are not given up to the United States, are expressly and absolutely retained, to be enjoyed by the STATES.
[Let me repeat that one! "ALL RIGHTS AND POWERS, of any kind whatever, OF the several STATES... not given up... are... retained... by the STATES"!]
In order to constitute this security, it appears to me there ought to be such a clause in the Constitution as there was in the Confederation, expressly declaring, that every power, jurisdiction, and RIGHT, which are not given up by it, remain in the STATES. Such a clause would render a bill of rights unnecessary. But as there is no such clause, I contend that there should be a bill of rights, ascertaining and securing the great RIGHTS of the states and people.
Mr. MACLAINE. It would be very extraordinary to have a bill of rights, because the powers of Congress are expressly defined; and the very definition of them is as valid and efficacious a check as a bill of rights could be, without the dangerous implication of a bill of rights. The powers of Congress are limited and enumerated. We say we have given them those powers, but we do not say we have given them more. We retain all those RIGHTS which we have not given away to the general government.
[Is there any doubt, in those last cites, that the RIGHTS not given to the central government are IDENTICAL to the POWERS? That RIGHTS can remain in the STATES? THAT STATES HAVE RIGHTS AND POWERS?]
For the views of a leading anti-Federalist:
Luther Martin Writings and Biography
The Genuine Information, delivered to the Legislature of the State of Maryland, relative to the Proceedings of the General Convention, held at Philadelphia, in 1787, by Luther Martin, Esq., Attorney-General of Maryland, and one of the Delegates in the said Convention.
5. That each branch ought to possess the RIGHT of originating acts.
6. That the national legislature ought to be empowered to enjoy the legislative RIGHTS vested in Congress by the Confederation, and moreover to legislate in all cases to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation;…
10. That the national executive shall have a RIGHT to negative any legislative act, which shall not afterwards be passed unless by two thirds of each branch of the national legislature.
It was denied that the equality of suffrage was originally agreed to on principles of necessity or expediency; on the contrary, that it was adopted on the principles of the RIGHTS of men, and the RIGHTS of states, which were then well known, and which then influenced our conduct, although now they seem to be forgotten. For this, the Journals of Congress were appealed to... the most convincing proof it was agreed to, and adopted, not from necessity, but upon a full conviction that, according to the principles of free government, the states had a RIGHT to that equality of suffrage...
... we would not labor under the imputation of being unwilling to form a strong and energetic federal government; but we would publish the system which we approved, and also that which we opposed, and leave it to our country and the world at large to judge, between us, who best understood the RIGHTS of freemen and free states, and who best advocated them;
The states have a RIGHT to an equality of representation. This is secured to us by our present Articles of Confederation; we are in possession of this RIGHT. It is now to be torn from us. What security can you give us that, when you get the power the proposed system will give you, when you have men and money, you will not force from the states that equality of suffrage, in the second branch, which you now deny to be their RIGHT, and only give up from absolute necessity?
... that it is the state governments which are to watch over and protect the RIGHTS of the individual, whether rich or poor, or of moderate circumstances, and in which the democratic and aristocratic influence or principles are to be so blended, modified, and checked, as to prevent oppression and injury --
that the federal government is to guard and protect the states and their RIGHTS, and to regulate their common concerns...
Another consideration, Mr. Speaker, it was thought, ought to have great weight to prove that the smaller states cannot depend on the Senate for the preservation of their RIGHTS, either against large and ambitious states, or against an ambitious, aspiring President.
It was my opinion, sir, that the states ought not to be totally deprived of the RIGHT to emit bills of credit, and that, as we had not given an authority to the general government for that purpose, it was the more necessary to retain it in the states.
That it was inconsistent with the RIGHTS of free and independent states to have their territory dismembered without their consent, was the principal argument used by the opponents of this proposition.
That it was inconsistent with the RIGHTS of free and independent states to have their territory dismembered without their consent, was the principal argument used by the opponents of this proposition. The truth of the objection we readily admitted, but at the same time insisted that it was not more inconsistent with the RIGHTS of free and independent states than that inequality of suffrage and power which the larger states had extorted from the others; and that, if the smaller states yielded up their RIGHTS in that instance, they were entitled to demand from the states of extensive territory a surrender of their RIGHTS in this instance; and in a particular manner, as it was equally necessary for the true interest and happiness of the citizens of their own states, as of the Union. But, sir, although, when the large states demanded undue and improper sacrifices to be made to their pride and ambition, they treated the RIGHTS of free states with more contempt than ever a British Parliament treated the RIGHTS of her colonial establishment, yet, when a reasonable and necessary sacrifice was asked from them, they spurned the idea with ineffable disdain. They then perfectly understood the full value and the sacred obligation of state RIGHTS, and at the least attempt to infringe them, where they were concerned, they were tremblingly alive, and agonized at every pore.
The people of the different states never made any objection to the manner in which the Articles of Confederation were formed or ratified, or to the mode by which alterations were to be made in that government: with the RIGHTS of their respective states they wished not to interfere. Nor do I believe the people, in their individual capacity, would ever have expected or desired to have been appealed to on the present occasion, in violation of the RIGHTS of their respective states, if the favorers of the proposed Constitution, imagining they had a better chance of forcing it to be adopted by a hasty appeal to the people at large, (who could not be so good judges of the dangerous consequence,) had not insisted upon this mode.
When I took my seat in the Convention, I found them attempting to bring forward a system which, I was sure, never had entered into the contemplation of those I had the honor to represent, and which, upon the fullest consideration, I considered not only injurious to the interest and RIGHTS of this state, but also incompatible with the political happiness and freedom of the states in general.
I, sir, am in that predicament. I have the honor to hold an appointment in this state. Had it been considered any objection, I presume I should not have been appointed to the Convention. If it could have had any effect on my mind, it would only be that of warming my heart with gratitude, and rendering me more anxious to promote the true interest of that state which has conferred on me the obligation, and to heighten my guilt, had I joined in sacrificing its essential RIGHTS.
[And, as a kicker, here’s some of what Martin had to say about the militia; HIS argument mentions the ONLY PURPOSE for which a militia amendment was sought by the anti-Feds, the ONLY argument EVER mentioned in ALL the militia debates:]
These observations, sir, procured from some of the members an open avowal of those reasons by which we believed, before, that they were actuated. They said that, as the states would be opposed to the general government, and at enmity with it -- which, as I have already observed, they assumed as a principle -- if the militia was under the control and the authority of the respective states, it would enable them to thwart and oppose the general government.
They said the states ought to be at the mercy of the general government, and therefore that the militia ought to be put under its power, and not suffered to remain under the power of the respective states. In answer to these declarations, it was urged that if, after having retained to the general government the great powers already granted -- and among those, that of raising and keeping up regular troops without limitation -- the power over the militia should be taken away from the states, and also given to the general government, it ought to be considered as the last coup de grace to the state governments; that it must be the most convincing proof, the advocates of this system design the destruction of the state governments, and that no professions to the contrary ought to be trusted; -- and that every state in the Union ought to reject such a system with indignation, since, if the general government should attempt to oppress and enslave them, they could not have any possible means of self-defence;
[Hmmm. Is THIS what was meant by "self-defense"? Is this an INDIVIDUAL right to private self-defense or a collective right? Whose right is being infringed? Behold:]
because the proposed system, taking away from the states the RIGHT of organizing, arming, and disciplining of the militia, the first attempt made by a state to put the militia in a situation to counteract the arbitrary measures of the general government would be construed into an act to rebellion or treason, and Congress would instantly march their troops into the state.
[Ah, it’s a RIGHT of the states to organize, arm, and discipline their militias! It’s a STATE RIGHT of public COMMON defense, where they defend THEMSELVES! This is what a leading anti-Federalist thought and THEY were the ones pushing FOR an amendment to satisfy THIS concern ONLY; IF there were another concern, wouldn’t he mention it to bolster his argument?]
It was further observed that, when a government wishes to deprive their citizens of freedom, and reduce them to slavery, it generally makes use of a standing army for that purpose, and leaves the militia in a situation as contemptible as possible, lest they might oppose its arbitrary designs--that in this system we give the general government every provision it could wish for, and even invite it to subvert the liberties of the states and their citizens,
[So states not only have RIGHTS, they have LIBERTIES too!]
since we give it the RIGHT to increase and keep up a standing army as numerous as it would wish, and, by placing the militia under its power, enable it to leave the militia totally unorganized, undisciplined, and even to disarm them;
[So the Federal Government has the RIGHT to keep a standing army, and can "disarm" the militia when under ITS power by FAILING to arm it, as George Mason said: "The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless -- by DISARMING them. Under various pretenses, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them..."]
while the citizens, so far from complaining of this neglect, might even esteem it a favor in the general government, as thereby they would be freed from the burden of militia duties, and left to their own private occupations and pleasures.
Jefferson’s seventh letter regarding his contribution to the BoR process was written to Dr. Joseph Priestley, June 19, 1802, looking back at his role. It, like the other six letters, which were contemporary appeals for a Bill of Rights (written 12/20/87, 2/7/88, 2/12/88, 7/31/88, 3/13/89, and 3/18/89), can be found by date at:http://www.constitution.org/tj/jeff.htm
"One passage, in the paper you enclosed me, must be corrected. It is the following, "and all say it was yourself more than any other individual, that planned and established it" i. e., the Constitution. I was in Europe when the Constitution was planned, and never saw it till after it was established. On receiving it I wrote strongly to Mr. Madison, urging the want of provision for the freedom of religion, freedom of the press, trial by jury, habeas corpus, the substitution of militia for a standing army, and an express reservation to the States of all rights not specifically granted to the Union. He accordingly moved in the first session of Congress for these amendments, which were agreed to and ratified by the States as they now stand. This is all the hand I had in what related to the Constitution."
So, "an express reservation to the States of all rights not specifically granted to the Union"!
HERE in TJ’s OWN words is MORE proof that the 10TH AMEN equated POWERS with RIGHTS and put RIGHTS in a COLLECTIVE frame! It proves that TJ himself believed that STATES had rights, and the FEDERAL GOVERNMENT had rights!!! Now, this is NOT before 1789 and speculation or debate; this is IN 1802, when TJ was already President of the US! And here HE is commenting BACKWARDS on the Constitution and BoR of over a decade earlier and STILL talking about STATES RESERVING RIGHTS NOT GRANTED TO THE UNION, meaning the concept and understanding of the terms was the same in 1802 as it was in 1789 and 1787!!! That is, the mere passage of the Constitution did NOT eradicate the concept or understanding of those beliefs held before the Constitution. They MAY have used the word "powers," but the concept of RIGHTS was still understood as being something STATES and THE UNION could RESERVE, or GRANT!!!
So, was TJ deluded, mad, mistaken, disingenuous, senile, confused, ignorant??? Or was he merely expressing the obvious and universally-held understanding of what BOTH terms meant in this context, and confirming that when Madison "accordingly moved in the first session of Congress for THESE amendments," that THAT was what Madison submitted as his intended purposes and understandings of their meaning! That is, according to TJ, Madison submitted an amendment for "the substitution of militia for a standing army" and another for "an express reservation to the States of all rights not specifically granted to the Union"! And it was THESE [purposes behind the] amendments "which were agreed to and ratified by the States as they now stand."
In the first letter, 12/20/87, TJ says: "I have a right to nothing, which another has a right to take away; and Congress will have a right to take away trials by jury in all civil cases." Again Congress, which is a "collective" government entity, and NOT an individual, has a RIGHT!
I trust this cumulative evidence will dispel forever the myth that, to the authors of the Declaration of Independence, Articles of Confederation, Constitution, and Bill of Rights, rights could ONLY be individual in nature, be held only BY individuals, and that they encompassed ALL individuals in ALL cases and, further, that collective rights can’t exist, and are some fictional creation of late 20th century liberals! As final proof, I repeat the cite from US v. CRUIKSHANK:
"Citizens are the members of the political community to which they belong. They are the people who compose the community, and who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights. In the formation of a government, the people may confer upon it such powers as they choose. The government, when so formed, may, and when called upon should, exercise all the powers it has for the protection of the rights of its citizens and the people within its jurisdiction; but it can exercise no other. The duty of a government to afford protection is limited always by the power it possesses for that purpose." -- US v. CRUIKSHANK, 92 U.S. 542 (1875)
And review the cite in Terms.htm from Noah Webster’s Theory of Government that speaks to the rights and powers of the collective entity, be it a state or the body politic: "The sovereign power IS THE WHOLE BODY OF THE PEOPLE COLLECTIVELY."