The Terms-of-Art in the 2nd Amendment
by Steven Krulick
PO Box 467, Ellenville NY 12428
© 2005, 2008, Kryolux Inc
Unless one understands how the terms used in the 2nd Amendment (or Bill of Rights, or the entire Constitution, for that matter) were understood and used BY the men who wrote these documents, in the legal language common to educated, elite lawyers of the 18th century, they might as well be written in Chinese, so far as modern readers are concerned! To read these words as if they were written in 21st century vernacular, as the NRA flaks and their followers CHOOSE to do, is to MISread the words and the purposes to which they were applied.
Following is an overview of each of the key legal terms-of-art in the 2nd Amendment, with primary and secondary source material to support these understandings.
Professor David Yassky, in an amicus brief for the Emerson case, is blunt:
The best evidence for the Second Amendment meaning of "bear arms" is in the original draft of the Amendment proposed in the First Congress by James Madison: "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person."
In the last clause of this version (the conscientious objector provision), Madison clearly used the phrase "bearing arms" to refer solely to using weapons as part of military service usage.
It is implausible to contend that virtually the same phrase "bear arms" should have a different, much broader meaning elsewhere in the very same sentence.
There is NOTHING in the drafting and debating and passage of the 2nd Amen that speaks about "individual gun ownership" independent of militia service! It’s all about state versus federal control and arming of the militia, and the virtues of militias versus standing armies, since it’s a MILITIA amendment and NOT a GUN amendment!
Madison’s use of the phrase "bear arms" to refer to military activities is echoed in other contemporary usages; these usages were standard at the time the Second Amendment was adopted.
As Professor Lawrence Cress notes:
The language of constitutional provisions protecting conscientious objectors from military service underscores the fact that for eighteenth-century Americans "to bear arms" meant militia service. Such guarantees took the form of limitations on the individual’s militia obligation. Pennsylvania provided that no "man who is conscientiously scrupulous of bearing arms" could be "compelled" to serve in the militia, though an individual was still required to meet his obligation for the state’s defense by paying an "equivalent." Delaware and Vermont adopted similar language. New York’s constitution limited such exemptions only to Quakers, who "from scruples of conscience, may be averse to the bearing of arms." It, too, required conscientious objections to "pay to the State such sums of money, in lieu of their personal service."
New Hampshire Constitution of 1784: "No person who is conscientiously scrupulous about the lawfulness of bearing arms, shall be compelled thereto, provided he will pay an equivalent."
Rhode Island: "That the people have a right to keep and bear arms;... That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead."
Can anyone believe that this last one means that a wealthy Quaker could pay to have his butler march by his side to tote his rifle around for him on the battlefield or parade grounds?
Did Quakers have "religious scruples" about "carrying guns" out to the woods to hunt turkeys?
This is further confirmed by the 1789 debates IN Congress, where NO OTHER SUBJECT BUT THE MILITIA is addressed!
(All quotes taken verbatim from "Creating the Bill of Rights" ed. Veit, Rowling, Bickford; Debates in the House of Representatives, August 1789; pp. 182-4, 198-9)
Rep. Boudinot said, "What dependence can be placed in men who are conscientious in this respect? Or what justice can there be in compelling them to bear arms, when, if they are honest men they would rather die than use them."
By the way, if there is STILL any question about EXACTLY WHAT "bear arms" means, READ that again:
"what justice can there be in compelling them to bear arms"
Compelling them to bear arms! There is no other way to read that phrase EXCEPT as "compelling them to possibly use firearms to kill while serving in the militia"! Not "compelling them to ‘carry a gun’ on their person"... why would Congress want to compel ANYONE to carry a gun? Need MORE proof?:
"The words ‘in person’ were added after the word ‘arms,’ (No person religiously scrupulous shall be compelled to bear arms IN PERSON), and the amendment was adopted."
BEAR ARMS IN PERSON! THAT means, as Madison originally wrote it, "to render military service in person"! It CAN’T just mean to "carry a gun in person" as that MAKES NO SENSE! IN PERSON refers to NOT paying an equivalent to serve in the militia in one’s stead; since IF YOU pay someone else to serve in your place, as a substitute for YOUR duty, YOU don’t have to serve in the militia (bear arms) IN PERSON!
But the House REJECTED Gerry’s call to drop the clause, and passed it much as Madison wanted. We don’t have the Senate debates on precisely why THEY dropped it, although Gerry’s arguments may have been more successful there, and the Senate tried, wherever possible, to tighten the wording and shorten the articles.
But Gerry’s fears were PRECISELY that Congress would exclude individuals:
Rep. Gerry: "Now I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms."
Prevent them from "carrying guns"? Congress saying to Quakers, "Sorry, but since you are religiously scrupulous about bearing arms, YOU are thus to be prevented from using a hunting rifle to shoot turkeys!"? And then go BEYOND sects KNOWN to be against military service (e.g. Quakers, Moravians), making the same argument to Catholics or Jews, to prevent THEM from hunting also? HA!
NO, PREVENT THEM FROM SERVING in the militia... from BEARING ARMS!
Gerry continuing, "Now, if we give a discretionary power to exclude those from militia duty who have religious scruples, we may as well make no provision on this head;" for this reason he wished the words to be altered so as to be confined to persons belonging to a religious sect, scrupulous of bearing arms."
Notice here that Gerry is here EQUATING "militia duty" with "bearing arms"! "Exclude those from militia duty who have religious scruples" = "prevent... those religiously scrupulous... from bearing arms"! There IS no other way to read it! They mean the same thing!
Rep. Jackson: Now this, in his opinion, was unjust, unless the constitution secured an equivalent, for this reason he moved to amend the clause... Was willing to accommodate; he thought the expression was, "No one, religiously scrupulous of bearing arms, shall be compelled to render military service in person, upon paying an equivalent."
Rep. Sherman: "It is well known that those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent; many of them would rather die than do either one or the other."
Does anyone think that all this talk about "bearing arms" has anything here to do with merely "carrying guns"? THIS is what the Congress debated about -- militia service ONLY! NOT hunting, or personal self defense! Does anyone think Quakers or Moravians would "rather die" than "carry" a hunting gun to get a turkey, or that they’d "rather die" than to "pay an equivalent" to "carry" that hunting gun around for them and use it in their stead to kill turkeys for them because THEY have religious scruples about "carrying guns"!
Rep. Vining: Hoped the clause would be suffered to remain as it stood, because he saw no use in it if it was amended so as to COMPEL a man to find a substitute, which, with respect to the government, was THE SAME as if the person HIMSELF TURNED OUT TO FIGHT. [emphasis added]
"The person himself turned out to fight." THAT is what ALL these persons UNDERSTOOD "bearing arms" to mean! It is inconceivable that anyone reading these exchanges that use the term "bearing arms" to ONLY mean militia service -- particularly someone who’d never seen the term "bear arms" before -- could even SUGGEST that the term means anything else (such as "carry a gun") given the context and usage! Just TRY replacing "bear arms" in these quotes with "carry guns" and see how ludicrous it sounds!
IF the Amendment was intended to protect arms ownership for its own sake - or for any purpose desired by the owner - the ratification debates would be full of references to the virtues of arms ownership, or to frontier-dwellers’ need to protect themselves, or to rural Americans’ need to hunt game.
That is simply not the case! The Anti-Federalists offered no purpose for the Second Amendment other than the perceived danger of standing armies. Jonathan Elliot’s records of the debates in the ratifying conventions contain at least 80 pages of discussion concerning standing armies and the militia (1 Elliot’s Debates, supra, at 88, 371-72; 2 Id. at 96-99, 406, 520-522, 531, 536-37, 3 Id. at 378-94, 400-03, 405-31, 440-41; 4 Id. at 97-100, 214-15, 260-62; 5 Id. at 127, 440, 443-44, 451, 464-67, 480), and not a single reference to the need to "bear arms" for any purpose other than militia service. Similarly, the index to Herbert Storing’s The Complete Anti-Federalist -- the most comprehensive collection of Anti-Federalist writings -- lists 76 references to "standing armies." (Complete Anti-Federalist, supra, at 94-95.) That same index shows only two references to a "right to bear arms,"... The 2nd Amen makes NO reference to "weapons" at all! The term is "BEAR ARMS" which is NOT about any weapons per se, but about rendering military service in person in well-regulated militias, and the right of the STATES to organize, train, control, and man them!
The 2nd Amen (and the Constitution itself) neither prohibits NOR permits gun ownership; it’s simply SILENT on individual gun ownership!
There is NOTHING in the drafting and debating and passage of the 2nd Amen that speaks about "individual gun ownership" independent of militia service! It’s all about state versus federal control and arming of the militia, and the virtues of militias versus standing armies, since it’s a MILITIA amendment and NOT a GUN amendment!
US v. Miller (1939) confirms this. The SCotUS in Miller said the 2nd Amen must be viewed thusly:
"With obvious purpose to assure the continuation and render possible the effectiveness of such forces [the well regulated militia described in the previous paragraph] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."
So, where in the congressional debates WERE the other reasons?
Here’s HUNDREDS of pre-1790 cites of the term "bear arms" that clearly have military reference, along with comparison to other separate uses by "carry arms" and the like.
I challenge you to read Rowland’s essay and tell me he and I are wrong!
If there are HUNDREDS (or even thousands) of military uses of the term "bear arms" in context, and ONE or even two questionable and probably erroneous uses pop up, do we weigh the questionable and aberrant .001% equally with the 99.999% that show consistent legal, official, educated, STANDARD usage?
In the mid-19th century the original usage of "bear arms" was still understood:
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."
Why not look at what was said about the terms from late 19th century through early 20th century:
English v. State, 35 Tex. 473, 476 (1872)("The word ‘arms’ in the connection we find it in the Constitution of the United States refers to the arms of a militiaman or soldier, and the word is used in its military sense.");
Hill v. Georgia, 53 Ga. 472, 475 (1874) ("the language of the constitution of this state as well as that of the United States guarantees only the right to keep and bear the ‘arms’ necessary for a militiaman");
State v. Workman, 35 W. Va. 367, 373 (1891) ("in regard to the kind of arms protected by the [Second A]mendment, it must be held to refer to weapons of warfare to be used by the militia");
City of Salina v. Blaksly, 72 Kan. 230, 233 (1905) (both U.S. and Kansas Constitutions "appl[y] only to the right to bear arms as a member of the state militia, or some other military organization provided by law");
Ex parte Thomas, 21 Okla. 770 (1908) (interpreting Oklahoma Constitution) ("As the object for which the right to keep and bear arms is secured is of general and public nature, to be exercised by the people in a body, for their common defense, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare");
In re Rameriz, 193 Cal. 633, 651-52 (1924) ("An examination of the numerous authorities in various states will show that the right to keep and bear arms as guaranteed by a state constitutional provision similar to the federal amendment refers only to the bearing of arms by the citizens in defense of a common cause");
cf. Joel Prentiss Bishop, "Commentaries on the Law of Statutory Crimes" 497 (1873) (Second Amendment "protects only the right to ‘keep’ such ‘arms’ as are used for purposes of war... since such, only, are properly known by the name of ‘arms;’ and such, only, are adapted to promote ‘the security of a free State.’ In like manner, the right to ‘bear’ arms refers merely to the military way of using them... ");
Lucilius Emery, "The Constitutional Right to Keep and Bear Arms," 28 Harv. L. Rev. 473, 476 (1915) ("The single individual or the unorganized crowd, in carrying weapons, is not spoken of or thought of as ‘bearing arms.’").
Since the term comes directly from the Latin "arma ferre" (and has no singular; there is no "bear arm"!) how could it mean guns, since it preceded "guns" by over a thousand years?
Do you want us to read "arms" out of context of the term-of-art "bear arms" and just mentally translate THAT bogus trick AS "guns," eh? No dice.
Even the word "arms" alone always included flags, ensigns, tents, wagons, siege equipment, engineering tools, drums, etc. -- all the equipage of the entire militia. But it’s NOT just arms, but "BEAR ARMS" -- and THAT phrase has a whole history and meaning that was separate from the two words comprising it:
The Oxford English Dictionary defines "to bear arms" as meaning "to serve as a soldier, do military service, fight." 1 OED 634 (J.A. Simpson & E.S.C. Weiner eds., 2nd ed. 1989) (hereinafter, "OED"). It defines "to bear arms against" as meaning "to be engaged in hostilities with." As an exemplary use of the phrase in 1769, the OED gives "An ample pardon... to all who had born arms against him," and the exemplary use from 1609 is "He bare arms, and made weir against the king."
In Maryland, in August 1776, Rezin Hammond "told the people present that every man that bore arms in defense of his country had a right to vote, and if they were allowed no vote they had no right to bear arms." In this equation, arms bearing and enfranchisement went hand in hand; that is, military service and enfranchisement were linked rights. In this case, "bear arms" had an explicit, military meaning. (From JK Rowland)
There are probably more recorded instances of non-white snow than EVER there could be of non-military uses of "bear arms" (NOT "bear guns," or "carry arms"!) in pre-1800 America. Go tohttp://www.potomac-inc.org/emerappa.html; unless you think Rowland is purposely hiding a raft of non-military cites, the evidence is clear:
CONCLUSION: "BEAR ARMS" WAS AN UNAMBIGUOUS MILITARY CONCEPT
Summary. This paper finds that the overwhelming preponderance of usage of 300 examples of the "bear arms" expression in public discourse in early America was in an unambiguous, explicitly military context in a figurative (and euphemistic) sense to stand for military service, especially in the militia. Such usage represented a remarkable continuity over nearly two centuries, so much so that the phrase came to represent standard legal terminology describing military obligation, capability, exemption (especially for pacifists), service, and, after 1776, constitutional right. The 300 examples represent thousands of likely repetitions of the phrase in its military meaning, reinforcing the definition in the minds of Americans. Of all these usages, the "right to bear arms" formulation was the most ambiguous because the constitutional clauses in which it occurred often lacked sufficient context to define its meaning clearly. However, at least one use of the phrase in Maryland in 1776 was explicitly military. Legislative drafters did sometimes use literal language to define specific legal responsibilities for use of weapons under the militia acts. But they employed "bear arms" only occasionally in a literal sense, and the linked words were never used to describe hunting or other non-military use of weapons, or to prohibit their use. The few cases of ambiguous meaning are only a tiny fraction of the majority and cannot be the basis for generalizing about "bear arms" -- they were the exception, not the rule of early American legal terminology. Therefore, this overwhelming pattern of military context gives great weight to the conclusion that the "right to... bear arms" in the Second Amendment had an exclusively military meaning to the drafters and ratifiers and probable understanding to at least a large portion of the American population. (J.K. Rowland)
The term was a verb phrase, analogous today to one like "practice medicine." Sure, if you mistakenly break down the phrases you can get bear=carry + arms=guns = "carry guns," or practice=keep trying + medicine=pills in a bottle = "keep trying pills in a bottle." But any literate person today knows that "practice medicine" means to serve as a doctor, just as any literate person of 1790 knew that "bear arms" meant to serve as a soldier!
Further to that, here’s what historian Gary Wills has to say:
Bear Arms. To bear arms is, in itself, a military term. One does not bear arms against a rabbit. The phrase simply translates the Latin arma ferre. The infinitive ferre, to bear, comes from the verb fero. The plural noun arma explains the plural usage in English ("arms"). One does not "bear arm." Latin arma is, etymologically, war "equipment," and it has no singular forms.
By legal and other channels, arma ferre entered deeply into the European language of war. To bear arms is such a synonym for waging war that Shakespeare can call a just war "just-borne arms" and a civil war "self-borne arms." Even outside the phrase "bear arms," much of the noun’s use alone echoes Latin phrases: to be under arms (sub armis), the call to arms (ad arma), to follow arms (arma sequi), to take arms (arma capere), to lay down arms (arma ponere). "Arms" is a profession that one brother chooses as another chooses law or the church. An issue undergoes the arbitrament of arms. In the singular, English "arm" often means a component of military force (the artillery arm, the cavalry arm).
Thus "arms" in English, as in Latin, is not restricted to the meaning "guns." The Romans had no guns; and they did not limit arma to projectile weapons (spears, arrows). It meant weaponry in general, everything from swords to siege instruments -- but especially shields. That is why the heraldic use of "arms" in English (the very case Stephen Halbrook invokes) refers to shields "coated" (covered) with blazonry...
Patrick Henry tells us, the militia’s arms include "regimentals, etc." flags, ensigns, engineering tools, siege apparatus, and other "accoutrements of war."
And "bear" can be a large land animal, and "arms" can be limbs, so "bear arms" can be "the limbs of a large land mammal" and THAT is the "logic" and lunacy of the "breakdown" method!
But it’s not just "arms" anyway! It’s BEAR ARMS -- ONE CONNECTED PHRASE with its own consistent history!
"He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands." -- Declaration of Independence, 1776
Did the King make Americans merely "carry guns"? What did TJ MEAN by "bear Arms"? IT meant forcing them "to render military service in person," JUST the way Madison used the term!
Want HUNDREDS more examples of the "clear language" in the 2nd Amen as used up to 1790? Go to:
For a sample of the piece:
Deconstruction of the Second Amendment.
Compounding the differences between the two approaches to the Second Amendment is the practice of deconstructing its language, of stripping specific words ("keep," "bear," "arms," and "militia") from their 18th century phraseology (especially "keep arms" and "bear arms") and examining their individual meanings in a literal sense, sometimes explicitly but often as an unexamined or buried assumption. Steven Halbrook is the most forthright in his definition of "bear arms." He argues that "the terms, ‘bear arms’ meant simply to carry arms," but this conclusion is based on very little 18th century evidence and without any recognition that "the terms" could have been a single term used in the 18th century in a figurative sense that would give an entirely different understanding of the Second Amendment. Some academic historians have also assumed an equivalence between "bear" and "carry" arms, which serves only to confuse the issue. Writers taking this approach ignore, or are not familiar with, the authoritative conclusions of the Oxford English Dictionary on Historical Principles, which declares that "to bear arms" is a figurative usage meaning "to serve as a soldier, do military service, fight" and that "to bear arms against" means "to be engaged in hostilities with." Therefore, to insist on a literal "plain reading" of the text of the Second Amendment despite specific evidence to the contrary is a form of constitutional literalism that, however legitimate for extrapolation of the meaning of provisions of the Constitution and Bill of Rights for today, may do an injustice to the 18th century meaning of those same provisions.
"Bearing arms" is not about "carrying arms" or "kinds or arms" or "bearing guns" but BEARING ARMS: "to serve as a soldier, engage in hostilities with" (OED), or "to render military service in person" (Madison).
One can be "bearing arms" against the enemy by driving or repairing a truck, or cooking meals, as long as one is ‘serving as a soldier, doing military service’ while doing those activities, particularly if the forces are at war with each other. It doesn’t mean or require that one is packing a pistol, and certainly doesn’t mean that one is carrying ARMS, ALL the equipage of WAR (flags, tents, siege apparatus, engineering equipment, etc.) on one’s person.
"Keeping arms" is a militia function, and it includes BOTH the communal storage and "keeping up" of "arms" (which is the ENTIRE "equipage" of warfare: cannon and balls, powder, tents, flags, wagons, siege apparatus, engineering equipment, regimentals, accouterments, etc.) AND the personal "keeping" of those REGISTERED militia weapons (Militia Act of 1792) specified by law.
This is from historian Garry Wills:
To keep. Gun advocates read "to keep and bear" disjunctively, and think the verbs refer to entirely separate activities. "Keep," for them, means "possess personally at home" -- a lot to load into one word. To support this entirely fanciful construction, they have to neglect the vast literature on militias. It is precisely in that literature that to-keep-and-bear is a description of one connected process. To understand what "keep" means in a military context, we must recognize how the description of a local militia’s function was always read in contrast to the role of a standing army. Armies, in the ideology of the time, should not be allowed to keep their equipment in readiness...
The idea of militia "stands" in common depots or arsenals was not confined to England. In America, the Articles of Confederation required that "every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage." (equipage being etymological sense of arma). Thus it is as erroneous to suppose that "keep" means, of itself, "keep at home" as to think that "arms" means only guns. Patrick Henry tells us, the militia’s arms include "regimentals, etc." flags, ensigns, engineering tools, siege apparatus, and other "accouterments of war."
Some arms could be kept at home, of course. Some officers kept their most valuable piece of war equipment, a good cross-country horse, at home, where its upkeep was a daily matter feeding and physical regimen.
But military guns were not ideally kept home. When militias were armed, it was, so far as possible, with guns of standard issue, interchangeable parts, uniform in their shot, upkeep and performance -- the kind of "firelocks" Trenchard wanted kept "in every parish" (not every home). The contrast with armies was not to be in performance (Trenchard and others boasted of the high degree of efficient organization in militias). The contrast was in continuity. The militia was always at the ready, its arms "kept." Armies came and went -- their "continuation" was what Trenchard attacked...
To keep-and-bear arms was the distinguishing note of the militia’s permanent readiness, as opposed to the army’s duty of taking up and laying down ("deponing" is Trenchard’s word) their arms in specific wars. The militia was maintained on a continuing basis, its arsenal kept up, its readiness expressed in the complex process specified by "keep-and-bear." To separate one term from this context and treat it as specifying a different right (of home possession) is to impart into the language something foreign to each term in itself, to the conjunction of terms, and to the entire context of Madison’s sentence.
Further, from J.K.Rowland:
It is possible, and likely, that the "keep arms" component was also understood in early America in an exclusively military context. This is especially likely since virtually every militia act used the word "keep" or a close synonym to describe the requirement to own or have custody of a weapon and maintain it for military use. And there is no doubt that Americans like John Adams, the author of the Massachusetts bill of rights of 1780 which was the first to use "keep arms" as part of a constitutional guarantee, saw the English common law implications of the phrase. However, like "bear arms," "keep arms" was American terminology, as opposed to the English "have arms" expression. Therefore, it is time to relook at the Second Amendment and reconstruct this badly deconstructed article of the Bill of Rights in a military context.
IF Madison had written "The right of individual persons to own and carry weapons shall not be infringed," one MIGHT have a point. But he DIDN’T. "Bear arms" was a term-of-art, a verb phrase (and the extended version keep-and-bear-arms is too); one can’t break it up because one WANTS to use 21st Century "logic."
The term’s a verb phrase, analogous today to one like "practice medicine." Sure, if you mistakenly break down the phrases you can get keep (own) + bear (carry) + arms (guns) = "own & carry guns," or practice (keep trying) + medicine (pills in a bottle) = "keep trying pills in a bottle." But any literate person today knows that "practice medicine" means to serve as a doctor, just as any literate person of 1790 knew that "bear arms" meant to serve as a soldier, and "keep and bear arms" meant that which a militia does.
One needs to know what the words meant AS they were written in the 18th Century, AND what the courts have since confirmed the "right" to be.
"To keep and" merely EXTENDS the verb phrase "bear arms," as in:
study and practice medicine
"Kildare has decided to study and practice medicine."
Keep-and-bear-arms is a term-of-art.
Now, I didn’t use this to be an EXACT parallel of "keep and bear arms," since that wasn’t my purpose. But I will say that, just as one needs to be licensed to PRACTICE medicine, not just ANYONE can STUDY medicine, either. If you think so, try walking into the Harvard Medical School, sit down in a classroom, and tell everyone you’re "studying medicine"! In order to STUDY medicine, one must be ACCEPTED into an accredited Medical School, and THAT means meeting very strict and demanding requirements, something only a fraction of even college grads can do, and THEN one must train and maintain one’s grades and performance over the entire study period of YEARS.
So, sure, any 22-year-old has the same "right to study and practice medicine" as anyone else -- in theory and potential -- but until he or she is ACCEPTED in med school, graduates, is licensed, and opens a practice or works for a hospital or clinic, that "right" is not exercised.
Likewise, in 18th Century America, SOME people (free, white, property-owning, able-bodied males, 18-45, not in prison or mentally-defective) had the potential right to "bear arms," but until they were ACCEPTED into an authorized, well-regulated "trained band" "under military discipline," they were NOT considered IN the Militia, and the "right" (and DUTY!) was not exercised.
BTW, "keep books" IS subject to the identical verb phrase interpretation as "bear arms," including Madison’s final clause in his original draft: "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.":
"A well regulated accounting profession, being necessary to a fiscally healthy commonwealth, the right of the people to keep books, shall not be infringed; but no person mathematically-challenged shall be required to keep books without a calculator."
Here, and especially due to the final clause, as in Madison’s draft, the meaning of "keep books" is obvious; it MUST refer to "financial bookkeeping" and NOT TO "possessing printed works of literature."
UNLESS you accept that "keep books" as in bookkeeping is NOT the same as "keep books" as in possessing literature you may not see that "bear arms" as in "military service" is NOT the same as "carrying guns"!
It’s all a matter of CONTEXT and reading for logical comprehension. Here are two sentences, nearly identical, and written as closely as possible to the actual 2nd Amen structure; the context is the key to the meanings:
"Our Chief Financial Officer, being Murray Black, the officer responsible for keeping the company’s books, is Mr. Black."
"Our Head Librarian and Chief of Research, being Marion Black, the officer responsible for keeping the company’s books, is Ms. Black."
Now, what does the phrase "keeping the company’s books" mean?
Well, if you understand the context, the answer is clear:
In Mr. Murray Black’s case, it means to process and tabulate (keep) the company’s accounts ledgers (books).
In Ms. Marion Black’s case, it means to store and organize (keep) the company’s volumes of reference materials, literature, publications, etc. (books).
In Murray’s case, the term "keeping books" is figurative, just like the term "bearing arms" in the 2nd Amen. It is a specific and inseparable verb phrase with a particular idiomatic meaning, in this case referring to the accounting arts.
In Marion’s case, the term "keeping books" is LITERAL, like the term "carrying guns."
In the 2nd Amen, since the context and preamble reference is clearly and unambiguously THE MILITIA, the standard figurative verb phrase "bear arms" can ONLY be seen in the context of rendering military service in person, just as Madison defined it, and "keep arms" can ONLY be seen in the collective upkeep and maintenance of the WHOLE militia, just as John Adams meant it.
"Keep books"; "practice medicine"; "bear arms." In context, unseparable verb phrases!
"KEEPING ARMS" is, as John Adams first used it in the Mass. Constitution of 1780, about the UPKEEP and ever-ready nature of the state militia! This was confirmed by how the Articles of Confederation required EACH state to KEEP UP militia stands in public stores. THAT is a collective enterprise. Sure, individual militiamen would maintain certain personal weapons and supplies (officers would include swords and horses and uniforms at personal expense) but the bulk of the militias arms, which included flags, tents, wagons, cannon, siege equipment, etc., were ALWAYS KEPT UP by the states and usually best KEPT in common public stands or stores, the better to secure and maintain them.
So, as I said above, the first right is a collective/communitarian right of the body politic to provide for its own common defense by organizing and maintaining, arming and manning their well-regulated state militia. It goes beyond mere "owning weapons."
Let’s start with Federalist Noah Webster’s 1828 definition, which is exactly how the Founding Fathers understood the concept of a militia:
MILITIA, n. [L. from miles, a soldier...] The body of soldiers in a state enrolled for discipline, but not engaged in actual service except in emergencies; as distinguished from regular troops, whose sole occupation is war or military service. The militia of a country are 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. -- Noah Webster, An American Dictionary of the English Language (New York, S. Converse 1828)
James Madison, primary author of the Constitution AND the BoR, similarly described a militia in Federalist #46 as a group of citizens "united and conducted by governments possessing their affections and confidence." John Adams, author of the Mass. Constitution of 1780 said, "The fundamental law of the militia is, that it be created, directed, and commanded by the laws, and ever for the support of the laws."
The Militia of the Constitution is whatever Congress decides it is, just as the Constitution itself says.
In the 1780s, the big discussion, beyond how large the standing army should be, or if it should even exist, was whether there should be a "universal" militia or a "select" militia. Hamilton, Knox, and Washington, who had no problem with a standing army, having seen the deficiencies of the militia during the Revolution, were in favor of a select militia; even some anti-Feds had no trouble with a select militia being culled from the state militia.
The "universal" militia (actually, only free, white, property-owning, able-bodied males, 17-45, so hardly "universal" in the true sense, and then there were exemptions to various officials, postmen, ministers, ferrymen, conscientious objectors... hey, we’re talking less than 10% of the the whole population liable to service!) won the day in 1789, and was organized by Congress, as required, by the Militia Act of 1792.
But it never worked as idealized; there were never enough arms until the federal armories started cranking them out and GIVING THEM to militiamen FOR FREE, and not even until the Civil War, as many men just refused them and treated the conscript duty as odious, or an occasion for drunken socializing. This was lamented by Joseph Story as early as the 1820s, and only got worse. The NRA was established primarily to rectify the lack of shooting skills exhibited during the Civil War.
Teddy Roosevelt saw the deficiencies during the Spanish-American War as beyond repair, so finally pushed to revive Hamilton’s select militia plan and formalize the National Guard (which name first was used by the Lafayette Regiment in NY in the 1820s) as THE militia of the Constitution, the one Congress could call forth and the President command. Since the Constution says Congress MUST provide for the organizing, disciplining, and ARMING of the militia, THAT is just what it did in 1903, by changing the system from a republican ideal that didn’t work, to a practical one that did.
So, select or not, the National Guard IS the Constitutional Militia, the only one with constitutional significance, any blatant claims notwithstanding.
The National Guard IS the militia of the Constution, and the Supreme Court says so!:
MARYLAND v. UNITED STATES
381 U.S. 41 (1965)
"The National Guard is the modern Militia reserved to the States by Art. I. 8, cl. 15, 16, of the Constitution."
THE National Guard is THE modern Militia... of the constitution, and when not in federal service, RESERVED TO THE STATES! From the same SCotUS ruling:
"The passage of the National Defense Act of 1916 materially altered the status of the militias by constituting them as the National Guard."
"Pursuant to power vested in Congress by the Constitution (see n. 8), the Guard was to be [381 U.S. 41, 47] uniformed, equipped, and trained in much the same way as the regular army, subject to federal standards and capable of being "federalized" by units, rather than by drafting individual soldiers. In return, Congress authorized the allocation of federal equipment to the Guard, and provided federal compensation for members of the Guard, supplementing any state emoluments. The Governor, however, remained in charge of the National Guard in each State except when the Guard was called into active federal service; in most instances the Governor administered the Guard through the State Adjutant General..."
PERPICH v. DEPARTMENT OF DEFENSE
496 U.S. 334 (1990)
"Lexicographers and others define militia, and so the common understanding is, to be `a body of armed citizens trained to military duty, who may be called out in certain cases, but may not be kept on service like standing armies, in time of peace.’ That is the case as to the active militia of this State. The men comprising it come from the body of the militia, and when not engaged at stated periods in drilling and other exercises, they return to their usual avocations, as is usual with militia, and are subject to call when the public exigencies demand it." Id., at 138.
Notwithstanding the brief periods of federal service, the members of the State Guard unit continue to satisfy this description of a militia. In a sense, all of them now must keep three hats in their closets - a civilian hat, a state militia hat, and an army hat - only one of which is worn at any particular time. When the state militia hat is being worn, the "drilling and other exercises" referred to by the Illinois Supreme Court are performed pursuant to "the Authority of training the Militia according to the discipline prescribed by Congress," but when that hat is replaced by the federal hat, the second Militia Clause is no longer applicable."
That being said, the National Guard IS the modern constitutional well-regulated militia, as Perpich confirms; it is simply the evolution of the militia into the select militia Hamilton, Washington, Knox and others favored, after the "universal" militia proved unworkable in practice.
Frequently Asked Questions About the Alabama Army National Guard
General Questions and Answers:
What is the National Guard?
The National Guard is one branch of the U.S. Armed Forces. The Alabama National Guard contains both an Army National Guard and Air National Guard component. The National Guard is composed of reserve forces - civilians who serve their country on a part time basis. Each state has their own National Guard as required by the constitution - in fact, the National Guard is the only branch of the military whose existence is actually required by the constitution.
How is the National Guard different from the Army Reserve?
The Army Reserve is completely controlled by the Federal Government and serves as a reserve to the Active Army. The National Guard, on the other hand, is controlled by the state and the federal government - we have a dual mission. The governor can call the Guard into action to assist in the case of local emergencies or civil disturbances. In addition the President of the United States can activate the National Guard to serve along with the Active Army in foreign wars. This was most recently portrayed during the Persian Gulf Crisis and the Bosnian Crisis.
The National Guard: Yesterday, Today, Tomorrow
The Army National Guard dates back to 1636, when the first colonists began to settle around the Massachusetts area. These first regiments, the oldest units in the U.S. Armed Forces, were the 101st Field Artillery, 101st Engineer Battalion and the 181st and 182nd Infantry Regiments. These Militiamen had but one goal in mind, to protect their families and homes against attack.
Patterned after the English militia system, every male colonist between 16 and 60 was obligated to serve in the militia. There were no fancy uniforms, and not even enough muskets to go around, but these part-time soldiers successfully banded together to defend the colonies against French, Spanish and Indian forces.
The American Revolution: The first war begins.
The Revolutionary War began in 1775, with the Battles of Lexington and Concord. Led by General George Washington, over 164,000 militiamen and thousands of volunteers bonded together to defeat the British.
The American militia proved to the world that civilian volunteers could be trained into fighting men, thus initiating the high tradition of the National Guard in our armed forces.
On October 19, 1781, when Lord Cornwallis surrendered after a European-style siege, thirty-one Army National Guard units carried Revolutionary War battle streamers attached to their unit colors.
At the war’s end, the framers of the constitution realized the militia had acquired two missions: Protection of towns and states and the defense of the nation. The Militia Clause of the Constitution recognizes this important role and remains as the Guard’s legal foundation.
Soon afterwards, the Militia Act of 1792 required all males between 18 and 45 to enroll in the militia. The volunteer militia, which was uniformed, trained and equipped units, soon superseded the enrolled militia and became the basis of today’s National Guard.
The "National Guard" is born.
The title National Guard came about in 1824. New York’s 7th Regiment was the first to acquire the name, in honor of Lafayette’s French volunteer force, the Garde Nationale. In time, all states adopted the designation National Guard for their state militia...
The Modern Guard Emerges...
The Militia Act of 1903 prescribed Federal standards for the Guard. These new standards meant that the Guard was to be organized, trained and equipped according to regular Army standards...
Congress is empowered to "organize, arm, and discipline" the Militia; the Militia is what Congress says it is:
"In 1933, Congress authorized the creation of the National Guard of the U.S. (consisting of all National Guard units), that could be ordered into Federal Service by the president." Ibid.
In Perpich v. Dept. of Defense, 496 U.S. 334 (1990), the U.S. Supreme Court squarely rejected the NRA’s argument that the modern-day militia is not confined to the National Guard. In Perpich, the SCotUS confirmed that the National Guard IS the Militia the Constitution refers to.
The issue in this case was state versus federal authority over the National Guard. The Court held that, under the "militia clauses" of the Constitution (in Article I, Section 8), Congress may authorize the President to order members of a state National Guard to engage in training exercises outside the U.S. without the consent of the state governor. The NRA, in a brief amicus curiae, asked the Court to find that the National Guard is not the "militia," as that term is used in the Constitution. The Court did not adopt the NRA view, instead finding that, when not in federal service, state Guard members "continue to satisfy [the] description of a militia." The Perpich decision, therefore, supports the idea that the contemporary "well regulated Militia" is the National Guard.
Army Guard History
The citizen-soldiers who make up the National Guard have fought in every major American war since 1637. War has changed a great deal since 1637, and today’s Guard must be prepared to fight in a high-technology environment, using complex weapons and equipment. The men and women of today’s Guard are ready to become full-time professional soldiers if the need arises, whether for federal or state missions just as they did in 1637.
The National Guard, the oldest component of the Armed Forces of the United States and one of the nation’s longest enduring institutions, celebrated its 366th birthday in 2002. The National Guard traces its history back to the earliest English colonies in North America. Responsible for their own defense, the colonists drew on English military tradition and organized their able-bodied male citizens into militias.
Constitutional charter of the Guard
The Army National Guard’s charter is the Constitution of the United States. Article I, Section 8 of the U.S. Constitution contains a series of "militia clauses," vesting distinct authority and responsibilities in the federal government and the state governments. These clauses and follow-on legislation have sculpted the Guard as you see it today.
The Second Amendment qualified Article I, Section 10 by insuring that the federal government could not disarm the state militias.
The National Guard is truly today’s militia, and it meets the specs of the Constitution:
- It is well regulated.
- It is dual-controlled by the states and feds, primarily by the states until federalized.
- Congress provides for the organizing, disciplining, arming of it.
- The states implement the discipline the Congress provides for.
- The states appoint the officers, and the adjutant general of the state is the top officer, under the state governor.
- Congress can call it forth.
- When called forth, the President is the commander-in-chief.
Article II, Section. 2."The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;"
As Alexander Hamilton put it, in Federalist 29:
"If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security."
And what body, "which is constituted the guardian of the national security" was Hamilton referring to, that the well-regulated militia "be under the regulation and at the disposal" of? Wouldn’t happen to be... CONGRESS, would it? As in... THE GOVERNMENT???!!!
As in... "a government-controlled militia" subject to government regulation!!!
Here’s some more from historian Garry Wills:
Well-regulated. One of the modern militia leaders who testified before Congress said, in answer to a question by Representative Patricia Schroeder about his insignia, that the militia movement is informal, spontaneous, and without fixed leadership. No eighteenth-century defender of the militias would have spoken that way. Sensitive to the charge that militias could be mobs, they always stressed that they were talking of a proper militia, a good militia, a correct militia, one well-trained, well-disciplined, well-regulated.
The use of the last term is especially significant, since the king’s soldiers and sailors were called "regulars" in the eighteenth century. The militias, too, were "regular," existing under rules (regulae). They did not boast a lesser discipline, just a right to continual upkeep of themselves and their equipment. Adam Smith took regulated to mean, principally, "regimented" - divided into bodies of troops.
General discussion of regulation concentrated on three matters: composition of the bands, arming (which included financing) them, and disciplining them. These three concerns are reflected in the Constitution’s militia clause, which speaks of a congressional power "to provide for organizing, arming, and disciplining the militia" (Article I, Section 8, Clause 16)... All authorized militias under our government have been financed by the central government, which also establishes their code of discipline.
Discipline was the third item of concern for eighteenth-century defenders of militias. No one was a member of the militia who had not joined an authorized "trained band" and been trained. So important is proper training that we often find "well-regulated" followed by an epexegetic phrase, spelling out the meaning of the term: "a well regulated militia, trained to arms" was the form Elbridge Gerry preferred for the Second Amendment. More expansively the Virginia ratifying convention suggested "a well-regulated militia, composed of the body of the people trained to arms."
In England, the need for a common discipline for militias was recognized, in order that the establishment of ranks, order, drill, maneuver, military obedience and punishment would be the same in neighboring counties, and even between the temporary army and the continuing militia (since some of the same men would go in or out of service in both). As early as Henry IV’s time, an overall "commission of army," meant "to muster and array (or set in military order) the inhabitants of every district," was accepted.
In America, the Constitution gives the federal government the power and duty to "discipline" the state militias -- i.e., set their order of military rank, procedure, drill, and punishment.
The so-called militias that wear the private insignia of Representative Schroeder’s interlocutor are not "well-regulated" in the constitutional sense. The only militia recognized by the Second Amendment is one "regulated" by the militia clauses of the Constitution -- one organized, armed, and disciplined by the federal government. Though the state militias (the National Guard financed by Congress) are under the ordinary jurisdiction of the states’ governors, the common discipline insures that the guard will be efficient if it is federalized (by a procedure also in the Constitution).
Only fantasts can think the self-styled militias of our day are acting under the mandate of, or even in accord with, the Second Amendment. Only madmen, one would think, can suppose that militias have a constitutional right to levy war against the United States, which is treason by constitutional definition (Article III, Section 3, Clause 1). Yet the body of writers who proclaim themselves at the scholarly center of the Second Amendment’s interpretation say that a well-regulated body authorized by the government is intended to train itself for action against the government. The proclaimer of the Standard Model himself says that the National Guard cannot be the militia intended by the Second Amendment since that militia was meant to oppose the government, and the National Guard is required to swear an oath of loyalty to the government that funds and organizes it.
The Second Amendment: "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."
Some people want the term "well-regulated" to have nothing to do with regulations or Congress, because of their interest in maintaining a right to keep and bear arms. Since some gun control advocates say that the preamble to the Second Amendment (mentioning the "well-regulated" militia) means that only members of the "well-regulated militia" -- which today would be the National Guard -- have an absolute right to bear arms, it is in the interest of those who oppose gun control to render this phrase meaningless.
Whether or not the Second Amendment guarantees an individual right to bear arms is not particularly relevant to this FAQ, but the issue of whether or not the national government has some authority over the militia is important. It is therefore worth pointing out, as I have with the examples [below] that the argument that the term "well-regulated" had nothing to do with regulations, is very probably false
Most historians agree that at least part of the meaning of the Second Amendment was that it specifically guarantees the the right of states to ensure the arming of their militias in the face of fears that the federal government might effectively deny to arms to a state controlled militia. However, those fears never came true.
The Second Amendment has been largely irrelevant to the history of the militia since 1792.
The Second Amendment has been used, unsuccessfully, to challenge the constitutionality of state laws against laws prohibiting unauthorized paramilitary organizations. This failure is not surprising. Even if the Second Amendment is intended to protect the right to keep and bear arms as private citizens, it is a much further step to say it was intended to protect the right to armed paramilitary activities by self-selected groups outside of civilian political control.
For example, the 1776 Virginia Bill of Rights, considered by many as one of the sources of the Second Amendment states: "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 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."
"Regulate. To fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to government principles or laws. The power of Congress to regulate commerce is the power to enact all appropriate legislation for its protection or advancement; to adopt measures to promote its growth and insure its safety; to foster, protect, control and restrain. It is also the power to prescribe rules by which commerce is to be governed and embraces prohibitory regulations"
The meaning of the term "regulation" as mentioned by the question was indeed in use during the period, but it was by no means the only way the word was used in relation to the militia.
This FAQ itself provides some examples of ‘regulations’ in the form of the 1792 Uniform Militia Act and the 1837 North Carolina law on volunteer cavalry.
There is a continuity from the time of the founders (and before) through the nineteenth century through today, in which the term "regulated" as it related to the militia referred to regulations.
"Well regulated" in the Second Amendment refers to the combination of state and federal regulations, as authority over the militia under the Constitution was divided between the two by the Militia Clauses. Most of the founders emphasized federal regulations, since that was what was at issue during the ratification debates.
Sometimes the Founding Fathers used the term "regulate" to refer to state militia laws. For instance, Patrick Henry and James Madison, members of the Virginia House of Delegates in 1784, were appointed to a committee to prepare a bill "to amend the several acts of Assembly, for regulating and disciplining the militia, and for providing against invasions and insurrections." This bill did more than just "train" the militia.
It is also interesting to read the words of John Sullivan, the former Revolutionary War general, Federalist, and governor of New Hampshire, in 1785, when he says that "And the Prussian army so formidable in Europe, is nothing more than a well regulated militia; the voice of the Prince calls them to the field; three months are taken up in disciplining them, and in passing the reviews; they are then furlowed..." Sullivan evidently thought that "well regulated" could mean three months of government training a year.
In 1783, Alexander Hamilton made a report on national defense to the Continental Congress, in which he suggested that states transfer the right of appointing officers to the Continental units to Congress, arguing that "without it there can never be regularity in the Military system." Though dealing with a situation that was never adopted, it nevertheless illustrates further that the term "well-regulated" could hinge on federal control. This becomes more important later in the same report when he discusses the militia, which he felt should be "well regulated;" to that end, Hamilton provided a plan for the militia, its organization, training, officering, equipment, duties, etc.
We also find the Federal Farmer, in November 1787, noting that "The state must train the militia in such form and according to such systems and rules as Congress shall prescribe; and the only actual influence the respective states will have respecting the militia will be in appointing the officers... I know that powers to raise taxes, to regulate the military strength of the community on some uniform plan, to provide for its defence and internal order, and for duly executing the laws, must be lodged somewhere; but still we ought not to lodge them, as evidently to give one another of them in the community... advantages over others." Clearly the Federal Farmer believed that the power to "regulate the military strength of the community" was lodged with Congress.
We could turn as well to Benjamin Lincoln, Revolutionary War general, Massachusetts politician, and militia officer, who reviewed Henry Knox’s 1790 plan to organize the militia, and referred to it as Knox’s "proposed system for regulating the militia of the United States." In fact, the term "regulating" was used synonymously for "organizing" by a number of people at the time.
Coming back to Alexander Hamilton, we see him in the Federalist 29 in January 1788, arguing that "if a well regulated militia be the most natural defence of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security." (he is referring here to Congress) It is hard to imagine how one could find a plainer statement saying that the term "well regulated" applies to laws passed by the national government. It is clear, too, that the term cannot apply solely to training, because the power to train, as Hamilton knew, was given to the state governments. Later in the document, we see Hamilton asking the question, "What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia and to command its services when necessary; while the particular states are to have the sole and exclusive appointment of the officers?"
If a Federalist like Alexander Hamilton believed that the term regulated meant Congress’ power over the militia, what about the antifederalists? We see Luther Martin, in January 1788, arguing that "it was speciously assigned as a reason [by nationalists], that the general government would cause the militia to be better regulated and better disciplined than the State governments."
Indeed, Martin gets even more specific, when he argues that instead the government should leave power to the states: "That leaving the power to the several States, they would respectively best know the situation and circumstances of their citizens, and the regulations that would be necessary and sufficient to effect a well regulated militia in each -- That we were satisfied the militia had heretofore been as well disciplined, as if they had been under the regulations of Congress..." How could you ask for anything more specific about the meaning of well- regulated?
What creates a well regulated militia? Regulations!
James Wilson, in the Pennsylvania state ratifying convention, applauded the notion of uniform militia laws that would be passed by Congress: "In every point of view, this regulation is calculated to produce the best effects. How powerful and respectable must the body of militia appear, under general and uniform regulations!"
David Ramsay, the South Carolinian, gave an oration at Charleston in which he said that "Tradition informs us, that about forty years ago France meditated an invasion of New England, but on reading the militia law of Massachusetts, declined the attempt. If this was the case under the wholesome regulations of one state, what room is there to fear invasion when an union of force and uniformity of system extends from New Hampshire to Georgia?" Again: Congress can best provide for a well regulated militia.
Below are a few examples of the meaning of ‘regulated’ culled from the early years of Congress. There were many more such references; these are simply ones that I have made notes on:
1st Congress, 3rd Session . Mr. Vining observes that the greatest objection [to a motion for arming the militia] is that it stops short in the regulation of the business.
December 22, 1790. Mr. Bloodworth [argues that present militia bill] goes to the minutiae of the regulations of the militia.
January 9, 1795. Mr. Tracy said, he was convinced of the necessity of amending the militia law; before Congress made any regulations of the kind, the militia, in the State he was from, was under very good discipline...
December 19, 1796. (paraphrase) Mr. Henderson objects that the states haven’t yet had time to regulate their systems so as to comply with the 1792 law.
April 29, 1798. Mr. Dayton moved that the committee...be discharged from further consideration of this bill [revising the militia system]...however salutary the proposed regulations might be in a state of tranquility, he did not think it would be proper, in the present circumstances of the country, to derange the whole Militia system to so great a degree...
March 6, 1810. Samuel Smith delivers a committee report, noting that no authority is delegated to Congress to regulate fines for non-attendance (at militia musters).
January 9, 1818. William Henry Harrison delivers a bill for organizing, arming, and disciplining the militia. In describing the bill, says "Regulations for calling forth the militia may remain substantially" as at present. Later in the same report, he says that under the proposed bill, when training, the militia "shall be subject to the rules and regulations prescribed for the government of the militia when in the military service of the United States."
As well, many militia codes passed by the states had titles like "A law to regulate the militia." The militia laws of Ohio from the 1840s are examples of such phraseology. These laws "to regulate" the militia were complete militia laws, dictating everything from officers to court martials to training to formation of units to fines to musters, etc., etc., etc.
Oh, and here’s Jefferson using the term "well regulated"; tell me that it means "well trained" or "keeping accurate time" and NOT operating strictly under proper rule and regulation!
"I acknowledge the right of voluntary associations for laudable purposes and in moderate numbers. I acknowledge, too, the expediency for revolutionary purposes of general associations coextensive with the nation. But where, as in our case, no abuses call for revolution, voluntary associations so extensive as to grapple with and control the government, should such be or become their purpose, are dangerous machines and should be frowned down in every well regulated government." -- Thomas Jefferson to James Madison, 1822.
In practical terms, THIS is what it all means:
"It must be made a sacred maxim, that the militia obey the executive power, which represents the whole people in the execution of laws. To suppose arms in the hands of the citizens, to be used at individual discretion, except in private self defense, or by partial orders of towns, counties, or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man - is a dissolution of the government. The fundamental law of the militia is, that it be created, directed, and commanded by the laws, and ever for the support of the laws." -- John Adams, A Defence of the Constitutions of Government of the United States of America, p. 474-5 (1787-88)
THE PEOPLE is a legal term of art that has a specific meaning in law and language:
Bouvier Law Dictionary:
A state; as, the people of the state of New York; a nation in its collective and political capacity. 4 T. R. 783. See 6 Pet. S. C. Rep. 467.
This word is used in various senses. In its most enlarged sense, it signifies a self-sufficient body of persons united together in one community for the defence of their rights, and to do right and justice to foreigners. In this sense, the state means the whole people united into one body politic; (q.v.) and the state, and the people of the state, are equivalent expressions.
When applied to the government this phrase signifies the state. As to the persons who compose the body politic, they take collectively the name, of people, or nation; and individually they are citizens, when considered in relation to their political rights, and subjects as being submitted to the laws of the state.
("The Bouvier Law Dictionary remains the basis for the interpretation of Law since the founding of the American nation. In questions of law regarding legal definitions from that period it remains the final arbiter of any disputed interpretation of that law."http://uslawbooks.com/ajs/bouvier2001.pdf)
Judge Story discusses the relationship between "the people" and "the state" (equivalent expressions) and quotes Justice Wilson with respect to the rights of states (a state being a "moral person"); these are the sources for the Bouvier definition of STATE above. This carries weight, since Justice Wilson is James Wilson, signer of the Declaration of Independence, a part of the first Supreme Court appointed by Washington, a professor of law at the University of Pennsylvania, and above all, a delegate to the Constitutional Convention where he served on the "Committee on Detail," which was charged with putting the Constitution into its final form. Here’s what Story and Wilson said:
"§ 208. In like manner the word "state" is used in various senses. In its most enlarged sense it means the people composing a particular nation or community. In this sense the state means the whole people, united into one body politic; and the state, and the people of the state, are equivalent expressions. Mr. Justice Wilson, in his Law Lectures, uses the word "state" in its broadest sense. "In free states," says he, "the people form an artificial person, or body politic, the highest end [and] noblest, that can be known. They form that moral person, which in one of my former lectures, I described, as a complete body of free, natural persons, united together for their common benefit; as having an understanding and a will; as deliberating, and resolving, and acting; as possessed of interests, which it ought to manage; as enjoying rights, which it ought to maintain; and as lying under obligations, which it ought to perform. To this moral person, we assign, by way of eminence, the dignified appellation of STATE." -- Joseph Story, "Commentaries on the Constitution of the United States," 1833.
Black’s Law, 6th Ed.:
A state; as the people of the state of New York. A nation in its collective and political capacity. The *aggregate or mass* of the individuals who *constitute the state*. In a more restricted sense, and as generally used in *constitutional law,* the *entire body* of those citizens of a state or nation who are *invested with political power* for political purposes.
*The political body,* consisting of the entire number of citizens and qualified electors, who, *in their collective capacity,* possess the powers of sovereignty and exercise them through their chosen representatives. See Scott v. Sandford, 19 How. 404, 15 L.Ed. 691.
Here’s how one non-law dictionary defines PEOPLE:
1 plural : human beings making up a group or assembly or linked by a common interest
2 plural : HUMAN BEINGS, PERSONS -- often used in compounds instead of persons
3 plural : the members of a family or kinship
4 plural : the mass of a community as distinguished from a special class -- often used by Communists to distinguish Communists from other people
5 plural peoples : a body of persons that are united by a common culture, tradition, or sense of kinship, that typically have common language, institutions, and beliefs, and that often constitute a politically organized group
6 : lower animals usually of a specified kind or situation
7 : the body of enfranchised citizens of a state
For legal/political/constitutional purposes, #7 is the SINGULAR and relevant term; the others can go take a hike!
Here’s a cite from "The Great Books: The Great Ideas, A Syntopicon, Vol. 1" published by Encyclopedia Brittanica, in the subject "Citizen" (Chapter 11, page 219):
When he discusses the size and character of the population for an ideal state, Aristotle says, "we ought not to include everybody, for there must always be in cities a multitude of slaves and sojourners and foreigners; but we should include only those who are members of the state, and who form an essential part of it."
The exclusion of slaves and resident aliens from membership in the political community has a profound bearing on the meaning of the political concept expressed by the words "the people." The PEOPLE [italics in original] is not the same as the POPULATION [italics in original] -- all those human beings who live within the state’s borders. Even in societies which have abolished chattel slavery and in which suffrage tends to be unrestricted, infants and aliens remain outside the pale of political life. The PEOPLE is always a part -- the active political part -- of the population.
The LEGAL concept of THE PEOPLE is not numerical or even geographical, but conceptual and political, and THAT definition is: "the body of enfranchised citizens of the state." IT is a SINGULAR, collective entity.
Persons, or "individuals," included women, children, and other non-enfranchised persons; THE PEOPLE was ALWAYS the enfranchised body-politic in its corporate, collective sense!
Now, in 1789 the MILITIA and the PEOPLE were essentially the SAME CLASS! The militia was ONLY composed of free, white, property-owning, adult males, drawn from "the body of THE PEOPLE," which was ALSO composed of the exact same FREEMEN!
The militia was "drawn from the body of the people" and was composed of the same FREEMEN as made up THE PEOPLE CLASS! Hence, when the Founders spoke of ONE they were in effect speaking of BOTH!
Professor Lawrence Cress notes in "An Armed Community: The Origins and Meaning of the Right to Bear Arms":
(http://www.potowmack.org/lcress.html; an excellent and thorough article that elaborates on and substantiates the themes of this essay.)
When discussions during the early national period turned to the preservation of liberty, then, classical assumptions about the citizen’s responsibility to bear arms in the interest of the common good quickly came to the fore. "For a people who are free, and who mean to remain so," Jefferson reminded Congress in 1808 in language that summarized the republican principles embodied in the Second Amendment, "a well organized and armed militia is their best security." No one argued that the individual had a right to bear arms outside the ranks of the militia. To the contrary, bearing arms outside the framework of the established militia structure immediately provoked fears for the constitutional stability of the Republic. John Adams, who was as important to the Massachusetts Declaration of Rights as Mason was to Virginia’s, borrowed the style of the Quaker State’s declaration when he drafted the Declaration of Rights that stood for ratification with the 1780 Massachusetts constitution. "The people," he wrote, "have a right to keep and to bear arms for the common defence." By "the people," John Adams meant the militia. "The public sword, without a hand to hold it, is but cold iron," he noted some years later, and "the hand which holds this sword is the militia of the nation."
The "People" with the Jus Militiae right to "keep and bear arms" (which means BOTH to maintain the upkeep OF, AND to serve IN, the militia) was the enfranchised body politic, essentially the same free white males who could vote, and serve in office, juries, and the militia -- the able-bodied of those who qualified for the militia being OBLIGATED to do so as a DUTY; Congress could not infringe on that right by making it moot by FAILING to fulfill their constitutional duty to ARM, ORGANIZE, and DISCIPLINE the Militia, which is what Mason and the anti-Feds were concerned about, and WHY the 2nd Amen was written and passed.
Those individuals who qualified for "bearing arms" (serving) within a well-regulated militia could not be deprived of owning and storing at home THOSE weapons in service to the militia, such weapons being inspected and "enrolled" (registered) each year during the call up for drilling and taking a "return of militia" to maintain a record of the inventory of men and weapons the state had at its disposal (Militia Act of 1792).
Some rights, as that of "THE People" to keep and bear arms, are of "the people at large," the collective jus militiae right of "the people at large" as the "populus armatus" to be involved in the state’s (or nation’s) military function, by establishing, arming, controlling, maintaining the upkeep and readiness of the militia, ("keeping arms" as John Adams meant it) and serving (if qualified) as citizen-soldiers (as opposed to "regular" professional soldiers in a standing army) drawn from "the body of the people," and "trained to arms" and "enrolled" into an organized, "well-regulated" state militia ("bearing arms" as Madison meant it).
The right "to keep and bear arms" was in the context of the citizen soldier of the conscript militia. (The INDIVIDUAL right Madison wanted was the conscientious objector right that the House OK’d but the Senate removed.) In the 18th century, private arms were never strictly private. The public had a claim for public purposes. Which is why the Militia Act of 1792 directed each qualified man to enroll (i.e. register) himself AND his MILITIA WEAPONS and ACCESSORIES each year at muster, or be fined for failure to, and such inventory of ALL the men and arms was reported to the state’s governor and the US president, so that THEY would know on what resources they could call upon in case of need, including private arms!
OF COURSE "THE People" have the right "to keep and bear arms," since THAT is what the 2nd Amen SAYS. It’s just that "THE People" doesn’t mean EVERYONE, taken as discreet individuals, but rather refers to the enfranchised body politic, seen collectively as the "populus armatus," and "keep and bear arms" doesn’t mean "own and carry guns"!
And the RIGHT is the "JUS MILITIAE right" of THE PEOPLE, collectively, as the enfranchised body politic, as the "populus armatus," as "THE WHOLE PEOPLE," to participate in their state’s or nation’s military function, by establishing, arming, controlling, and maintaining the "upkeep and readiness" of the militia, and serving (if qualified) as citizen-soldiers (as opposed to "regular" professional soldiers in a standing army) drawn from "the body of the people," and "trained to arms" and "enrolled" into an organized, "well-regulated" state militia, as opposed to leaving it only to professional soldiers to serve as hired retainers of the sovereign in a military run solely BY that sovereign.
Of course, historically and legally, this "right" preceded the Constitution, since state militias pre-dated the Revolutionary War! What Mason and Henry wanted was to make sure that the pre-existing right of the states to keep and maintain their militias was not infringed by the new federal government, and thus the right of those qualified to serve in the militia was not made moot by their failure to be properly and sufficiently armed by Congress.
As historian Garry Wills says:
Gun advocates claim that the "right of the people" to keep and bear arms is distributive, the right of every individual taken singly. But the militia as "the people" was always the populus armatus, in the corporate sense (one cannot be a one-person militia; one must be formed into groups). Thus Trenchard calls the militia "the people" even though as we have seen, the groups he thought of were far from universal. The militia literature often refers to "the great body of the people" as forming the militia, and body (corpus) is a necessarily corporate term. The great body means "the larger portion or sector of" (OED, "great," 8:c). This usage came from concepts like "sovereignty is in the people." This does not mean that every individual is his or her own sovereign. When the American people revolted against England, there were loyalists, hold-outs, pacifists who did not join the revolution. Yet Americans claimed that the "whole people" rose, as Madison wrote in the Federalist, since the connection with body makes "whole" retain its original, its etymological sense -- wholesome, hale, sound (sanus). The whole people is the corpus sanum, what Madison calls "the people at large." Thus "the people" form militias though not every individual is included in them.
WHENEVER the term-of-art "THE PEOPLE" appears in the Constitution or BoR, or even other official documents of the era, it means one thing only, in every case: THE PEOPLE is a singular entity, the collective enfranchised body politic, specifically, the CLASS of Freeman taken collectively in its political capacity.
The only PERSONS with "political capacity" were FREEMEN, that is, free, white, males of legal age. Often this was called FREEHOLDER and then also meant property-owning, free, white, males of legal age. The term ELECTOR was often used in local or state documents, and this may have restricted political capacity even further, by, say, requiring residence in a location for a certain period of time.
In 1789, women, black slaves, kids, non-citizens (such as foreigners, Indians, prisoners, rebels/Tories, etc.) had NO political capacity. They could not vote, and were not required to serve on juries or in the militia. In that sense, they were NOT a constituent part of THE PEOPLE! Thus, they had, or may have had, the rights of all INDIVIDUALS, such as freedom of religion or habeus corpus, but NOT the rights of FREEMEN or of the collective FREEMAN class. OR, and this is where the BoR comes in, any rights they MAY have claimed were not PROTECTED or GUARANTEED by the Constitution!
THE PEOPLE is NOT each and every PERSON "considered as individuals"! It is the collective enfranchised body politic as its own corporate identity.
Yes, individuals comprise the CLASS of FREEMEN who make up THE PEOPLE. But *A* single individual doesn’t necessarily have the rights and powers that only the collective class or subset thereof may enjoy. Yes, individuals make up a jury, but no ONE individual person can declare HIMSELF a legal jury of one, or put himself ON a jury, or find someone guilty independent of the other jurors, can he? Only the jury as a whole can do what the jury is empowered to do. There ARE NO one-man militias, and only THE PEOPLE collectively can organize, arm, and maintain a militia. Congress can declare war, but NOT one Congressman on his own. The individual that the collective is composed of may share in the power and rights of the whole, but doesn’t have ALL the same characteristics or prerogatives of the whole. Or, even as to collective entities, the United States may declare war, but an individual state can’t.
A building may be made of bricks, but a brick is NOT the building! The part is NOT the same as the whole, nor does it have the same properties or abilities. One can meet IN a building, but that doesn’t mean one can meet in a brick, or even a pile of bricks equal in number to the number of bricks making up a building! If one removes one brick from the building, the building still remains; if one removes and replaces 50 bricks, the building remains, independent of the particular bricks changed.
A corporation may be made up of individuals, but it has an existence that is not dependent on the life or death, or coming and going, of any particular individual.
So, what THE PEOPLE may do as an enfranchised body politic is NOT necessarily something any individual may do on his own. However, an individual may share in the process, and may, as a member of a designated class or subclass, enjoy the rights OF that class. IF you are a homeowner, the 3rd Amen rights may be invoked IF you feel your rights as such have been violated. Not because YOU yourself are listed in the Constitution, but because YOU fit the class protected by the collective term "homeowner."
CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS (1780)
"The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquillity their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.
The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them."
This confirms that it was the ENFRANCHISED BODY POLITIC (see Mass. Constitution) that established the Constitution, not each and every individual AS an individual.
When it says THE PEOPLE, it MEANS THE PEOPLE, the enfranchised body politic, taken collectively, just as law professor Steven Heyman says John Adams meant it in the Mass. Constitution:
How was the right to arms understood in post-Revolutionary America? We can attain great insight on this point by exploring the Massachusetts Constitution of 1780. This document, which was drafted by John Adams, contains the most carefully written of all the state declarations of rights and constitutes one of the best statements "of the fundamental rights of Americans at the end of the Revolutionary period."  [Page 261]
In its preamble, the Massachusetts Constitution sets forth the relationship between society and its members. The "people" or "the body-politic" are "formed by a voluntary association of individuals," who come together through "a social compact." What is most remarkable is that, having distinguished between the "people" and "the individuals who compose it," the document then uses these terms in a consistent way throughout. This makes it possible to discern with great clarity how the various rights were understood, and whether they were viewed in individual or collective terms...
In this way, the Massachusetts declaration draws a clear and uniform distinction between the rights that belong to individuals and those that belong to the people as a whole. This distinction is followed so carefully that it is observed even when both sorts of rights are implicated. Thus, Article XXIX declares that the independence of the judiciary is essential "for the security of the rights of the people, and of every citizen."
Article XVII of the Massachusetts declaration reads as follows:
The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military shall always be held in an exact subordination to the civil authority and shall be governed by it.
In view of the declaration’s careful usage, there can be no question that the "right to keep and bear arms" that it recognizes is one that belongs not to private individuals but to the people in their collective capacity. This is made even more clear by the fact that the right is to bear arms "for the common defence," as well as by the overall concern of the provision: to control the military force of the community and guard against the danger of military tyranny. 
I have chosen to focus on the Massachusetts Constitution because of the precision of its language, which strongly illuminates the nature of the rights that it contains. Yet the same distinction [Page 263] between "individuals" (or cognate terms) and "the people" is also generally, although not invariably, observed in the other post-Revolutionary state declarations of rights. When these documents recognize a right to bear arms, they always describe it as a right of "the people," rather than of every "individual" or "man."  This is strong evidence that the right was understood in collective terms.
Some rights are of individuals, and some are of the THE WHOLE PEOPLE, just as Albert Gallatin said:
"The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." -- Albert Gallatin of the New York Historical Society, October 7, 1789
"The whole of the Bill [of Rights] is a declaration of the right of the people at large OR considered as individuals...
And the 2nd Amen is a perfect example of a right of the people at large!
"The people," as the "people at large," the "whole body of the people," the collective "body politic," have the populus armatus jus militiae right to be involved in the state’s (or nation’s) military function, by establishing, arming, controlling, maintaining the upkeep and readiness of the militia ("keep arms" as Adams meant it), and serving ("bear arms" as Madison meant it, if qualified) as citizen-soldiers (as opposed to "regular" professional soldiers in a standing army), drawn from the "body of the people," and "trained to arms" and "enrolled" into an organized, "well regulated" state militia.
"It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." But the "right" to "own and carry guns" was never one of them. (See Pennsylvania Test Acts)
THE PEOPLE is NOT each and every PERSON "considered as individuals"! It is the collective enfranchised body politic as its own corporate identity.
Some rights are individual and apply to ALL individuals or to particular classes of individuals when applicable. Other rights are OF the collective entity itself, INDIVISIBLE, and not based on numbers:
Rights are collective AND individual; collective in their formulation, individual OR collective in their exercise and application. But unless your name is engraved in the Constitution, you have the rights that accrue to you as a member of the class that IS engraved therein. Does the 6th Amen say "Joe Doe shall enjoy the right to a speedy and public trial &c"? Of course not! But if you are arrested, as one who qualifies as a member of the class of persons called "accused," you have the rights. Can you appreciate the subtle difference? Your 3rd Amen rights likewise depend on your being a homeowner. Not ALL homeowners, not a collective group of homeowners, but ONE OF A CLASS defined as "persons who own a home."
The 3rd Amen talks about the consent of "the owner" (singular), not "the people" (plural). The 5th Amen says "no person" (singular), not "no people" (plural). The 1st Amen talks of the right of "the people" to assemble (obviously plural; how can a single individual "assemble"?). The 6th Amen refers to "the accused," "him," and "his" (singular). The 8th Amen avoids the problem altogether. Had they wanted to, the authors COULD have written "the right of persons to..." to clearly refer to individuals, or else written "the right to keep and bear arms, shall not be infringed" to be as vague as the 8th. Well, they didn’t write "persons" when they could have, so there’s no reason to see an individual right. As the courts have affirmed.
In 1792, when the Militia Act was passed, WHO had the specific right to "bear arms" ("to render military service in person" as Madison defined it)? Did blacks have the right? Did Women? 15-year-olds? Non-property owners? Cripples? Feeble-minded? Prisoners? "Injuns"? "Furreners"? Indeed, the MAJORITY of people in the country did NOT have the right to "bear arms" in the militia, hence they had no militia "right" to "bear arms." Indeed, laws were passed PREVENTING some specific classes, such as blacks (Negroes), from even possessing guns, "carrying guns" being a separate action from "bearing arms."
BUT the PEOPLE AT LARGE, the enfranchised body politic (who WERE, for the most part, the SAME free, white, property-owning males who could vote, serve on juries AND made up the militia) ALWAYS had the collective right to "keep and bear arms," a term of art first used in the 1780 Mass Constitution by John Adams, that referred to the democratic organization, control, arming, and preservation of the well-regulated state militias by the PEOPLE AT LARGE, the WHOLE PEOPLE as the populus armatus, exercising their jus militiae right to participate in the state’s and nation’s military function, and, if qualified, to serve in person as a citizen-soldier, as conscript duty if required, to forestall the need to rely on a standing army, the "bane of liberty"!
The PEOPLE "keep" (keep permanently ready and maintain in public stores, as Adams and the Articles of Confederation meant it) and "bear" ("bear arms" meant to Madison in the 2nd Amen draft "to render military service") in their collective capacity. For example, a 70-year-old crippled white male could VOTE for state reps who organized and controlled the militia; though unable to "bear arms" in the militia personally, he COULD participate IN the collective function, exercising HIS PART of that collective right! A 30-year-old white women in 1792 could do NEITHER!
The 1st Amen freedom of religion applies to EVERYONE, the 3rd Amen to homeowners (it isn’t relevant to anyone else), the 6th Amen to those accused of a crime... NOT the same classes of persons, with decreasing levels of inclusion. The "People" of the 2nd Amen are ONLY those qualified to vote or (for the most part) serve in the militia, which WAS NOT everyone by a long shot. Did blacks, women, 15-year-olds, non-property owners, have personal 1st Amen rights, such as freedom of speech and religion? Did those same persons have the right to serve in the militia, and thereby "bear arms," or vote democratically to participate in the organization and control of the militia ("keep and bear arms")?
Were THOSE PERSONS not individuals? Weren’t many even citizens? (Note that in many pre-Civil War constitutions and laws CITIZEN and FREEMAN were identical terms, so women, children, etc. were often NOT considered CITIZENS) But they WERE NOT a part of THE PEOPLE!
The Constitution also says "the People" vote for Congress every two years; did everyone vote? NO? That’s why the People is ONLY the enfranchised body politic!
Laws are written in the collective and general class sense, but applied in specific individual and class instances IF you are in the applicable class. IF you are in the class known as "homeowner" you have individual 3rd Amen rights; IF you are in the class known as "accused" you have individual 6th Amen rights.
IF you are a member of the CLASS known as the PEOPLE, i.e., the enfranchised body politic, YOUR 4th Amen right to be secure in YOUR person and property is protected. THAT’S why it says THE PEOPLE.
THE PEOPLE is composed only of Freemen, as they belong to the class known as the People; as Madison’s ORIGINAL phrasing of the 4th Amendment indicated "The rights of the people to be secured in THEIR [emph. added] persons, THEIR homes, THEIR papers, and THEIR other property from all unreasonable searches and seizures..." protects the CLASS, so when a member of that class is abused of these rights, as formulated FOR the CLASS, he, as a member OF the CLASS, can invoke the rights under the Constitution for INDIVIDUAL APPLICATION.
Hell, even Rehnquist, in Verdugo, suggested that foreigners, as NON-members of the CLASS known as The People, did NOT have 4th Amen rights that belonged TO the CLASS known as The People!
"That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to ‘the people.’ Contrary to the suggestion of amici curiae that the Framers used this phrase ‘simply to avoid [an] awkward rhetorical redundancy,’ (Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4,) ‘the people’ seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by ‘the people of the United States." The Second Amendment protects ‘the right of the people to keep and bear Arms,’ and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to ‘the people.’ See also U.S. Constitution., Amdt. 1 (‘Congress shall make no law...abridging...the right of the people peaceably to assemble’); Art. 1, 2, cl. 1 (‘The House of Representatives shall be composed of Members chosen every second Year by the people of the several States’). While this textual exegesis is by no means conclusive, it suggests that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (Excludable alien is not entitled to First Amendment rights, because ‘[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law;)." -- United States v. Verdugo-Urquidez
There’s no express individual right to own and carry guns in this!
Though this is mere dicta by Rehnquist, and NOT part of the ruling, in what was NOT a 2nd Amen case, it only PROVES the point that it is NOT referring to individuals, but to a CLASS of persons that EXCLUDES those who are NOT part of the class of enfranchised citizens! THE PEOPLE IS NOT EVERYONE! THE PEOPLE IS NOT simply every individual person AS person, but a CLASS, a singular, collective entity!
Look: "That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to ‘the people.’!
Hmmm, if something extends its reach ONLY to "THE PEOPLE" than THAT can’t be EVERYONE! THE PEOPLE is LESS than EVERYONE! It is a CLASS of PERSONS SMALLER than the entire population! ONLY FREEMEN comprise the PEOPLE! HENCE, it is NOT something that applies to any or all individuals, as THAT would be EVERYONE!
Nowhere does he EVER even suggest that the rights in all these mentions are individual rights! All that is suggested is that those, like non-citizens, who are NOT in the class of persons known as THE PEOPLE are NOT covered by the provisions that refer to THAT class, so, in THIS case, foreigners are NOT covered by 4th Amen rights! Well, foreigners ARE individuals, right? So if THEY are not covered by a right of THE PEOPLE, ipso facto, a right of the PEOPLE is not necessarily one that ALL INDIVIDUALS have! QED."While this textual exegesis is by no means conclusive, it suggests that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."
A "class" is a collective term for a collective (adjective) entity! It is a singular term for a plural number of things!
And in THIS case, it ONLY means the CLASS of persons known as CITIZENS! ALL it suggests is that NON-CITIZENS may not be entitled to BoR protections! The dicta, and certainly NOT the ruling, says NOTHING about the nature of the 2nd Amen or its rights. All he was saying was that NON-citizens are not necessarily part of the "class of persons" (class being a singular term for a plural number) covered by those rights.
Rehnquist did not say that "the People" DENOTED INDIVIDUALS, nor even implied it! He said CLASS of persons with particular characteristics, and that was NOT everyone! In 1789 it wasn’t women, blacks, kids, felons, aliens, indians, and more!
Rehnquist was tangentially suggesting in dicta that THE PEOPLE is a CLASS OF PERSONS and that foreigners, for example, are NOT part of THE PEOPLE. In 1792 neither were women, kids, blacks, injuns, felons, etc. Yet they were ALL individuals! Hence, THE PEOPLE was NOT simply each and all individuals, then or now, but ONLY the members of THE PEOPLE Class, whose rights MAY or MAY NOT be DISTRIBUTIVE, depending on the context and nature of the right.
The term-of-art is "class of persons," a plural reference to the people at large, the collective body of persons who ARE citizens. Which is why a non-citizen alien didn’t even have 4th Amen rights normally distributive to an individual member of the PEOPLE CLASS! How much less would a non-member of the PEOPLE CLASS have any right to invoke a NON-distributive 2nd Amen right of the collective PEOPLE CLASS, the enfranchised body politic in its collective and political capacity?
See, freedom of speech or religion or 5th Amen rights ARE individual rights because they are NOT QUALIFIED by the more narrow CLASS, THE PEOPLE, and ALL persons may invoke them! AS Rehnquist said in Verdugo, these rights of THE PEOPLE, as opposed to the broader rights of the 5th and 6th Amens "extends its reach only to ‘the people.’"
Thus, if it extends its reach ONLY to the people, than THE PEOPLE is more limited than EVERY INDIVIDUAL! It refers to ONLY the CLASS of PERSONS that are known as FREEMEN, the very same CLASS from which THE MILITIA was drawn from! OTHERWISE, the primary right is of THE BODY POLITIC in its collective capacity, acting for common defense by establishing and maintaining its militia!
The rights are different rights in each Amen. The People is the same The People. But some of the RIGHTS apply ONLY to the People in their collective capacity as the enfranchised body politic (the whole People), others to certain members of that class taken collectively (e.g. the militia drawn from "the body of the People), others to a specific sub-class of The People (The People of the State), others to the Freemen who comprise The People, taken collectively or as an individual Freeman.
by Akhil Reed Amar
The amendment speaks of a right of "the people" collectively rather than a right of "persons" individually.
And it uses a distinctly military phrase: "bear arms." A deer hunter or target shooter carries a gun but does not, strictly speaking, bear arms. The military connotation was even more obvious in an earlier draft of the amendment, which contained additional language that "no one religiously scrupulous of bearing arms shall be compelled to render military service in person." Even in the final version, note how the military phrase "bear arms" is sandwiched between a clause that talks about the "militia" and a clause (the Third Amendment) that regulates the quartering of "soldiers" in times of "war" and "peace." Likewise, state constitutions in place in 1789 consistently used the phrase "bear arms" in military contexts and no other.
... anachronistically, libertarians read "the people" to mean atomized private persons, each hunting in his own private Idaho, rather than the citizenry acting collectively.
But, when the Constitution speaks of "the people" rather than "persons," the collective connotation is primary.
"We the People" in the preamble do ordain and establish the Constitution as public citizens meeting together in conventions and acting in concert, not as private individuals pursuing our respective hobbies. The only other reference to "the people" in the Philadelphia Constitution of 1787 appears a sentence away from the preamble, and here, too, the meaning is public and political, not private and individualistic. Every two years, "the people" -- that is, the voters -- elect the House.
To see the key distinction another way, recall that women in 1787 had the rights of "persons" (such as freedom to worship and protections of privacy in their homes) but did not directly participate in the acts of "the people" -- they did not vote in constitutional conventions or for Congress, nor were they part of the militia/people at the heart of the Second Amendment.
The rest of the Bill of Rights confirms this communitarian reading. The core of the First Amendment’s assembly clause, which textually abuts the Second Amendment, is the right of "the people" -- in essence, voters -- to "assemble" in constitutional conventions and other political conclaves. So, too, the core rights retained and reserved to "the people" in the Ninth and Tenth Amendments were rights of the people collectively to govern themselves democratically.
"The Fourth Amendment is trickier: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated."
Here, the collective "people" wording is paired with more individualistic language of "persons." And these words obviously focus on the private domain, protecting individuals in their private homes more than in the public square. Why, then, did the Fourth use the words "the people" at all? Probably to highlight the role that jurors -- acting collectively and representing the electorate -- would play in deciding which searches were reasonable and how much to punish government officials who searched or seized improperly. An early draft of James Madison’s amendment protecting jury rights helps make this linkage obvious and also resonates with the language of the Second Amendment: "[T]he trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate." Note the obvious echoes here -- "security" (Second Amendment), "secure" (Fourth Amendment), and "securities" (draft amendment); "shall not be infringed," "shall not be violated," and "ought to remain inviolate"; and, of course, "the right of the people" in all three places.
If we want an image of the people’s militia at the Founding, we should think first of the militia’s cousin, the jury. Like the militia, the jury was a local body countering imperial power -- summoned by the government but standing outside it, representing the people, collectively. Like jury service, militia participation was both a right and a duty of qualified voters who were regularly summoned to discharge their public obligations. Like the jury, the militia was composed of amateurs arrayed against, and designed to check, permanent and professional government officials (judges and prosecutors, in the case of the jury; a standing army in the case of the militia). Like the jury, the militia embodied collective political action rather than private pursuits.
Founding history confirms this. The Framers envisioned Minutemen bearing guns, not Daniel Boone gunning bears. When we turn to state constitutions, we consistently find arms-bearing and militia clauses intertwined with rules governing standing armies, troop-quartering, martial law, and civilian supremacy. Libertarians cannot explain this clear pattern that has everything to do with the military and nothing to do with hunting.
Amar’s overall 4th Amen explanation makes tentative sense, but I’m not totally convinced by it, and MY latest hypothesis would suggest a more limited right than is normally thought, but, hey, that is the same situation with the 1st and 2nd Amens too, isn’t it?
Here’s something I wrote before I read Amar’s piece:
It would be awkward to have said ‘right of persons to be secure in their persons, etc.’
Look at Madison’s ORIGINAL phrasing of this:"The rights of the people to be secured in THEIR [emph. added] persons, THEIR homes, THEIR papers, and THEIR other property from all unreasonable searches and seizures..."
Why in the plural, even collective, sense at all? This could have been rewritten to emphasize the individual nature of the right, for example, the NY proposal (and likewise the VA proposal) said:"That every Freeman has a right to be secure from all unreasonable searches and seizures of his person his papers or his property..."
but it was merely shortened and tightened by Congress. There was almost no House debate over this amendment other than a few minor insertions, as it was late August and they were trying to wrap up. Perhaps they were not as fastidious as Adams was in the 1780 Mass. Constitution for maintaining consistency of usage.
No question, this, at first, seems to us to be an INDIVIDUAL right, but the phrasing should have been more consistent to reflect that if it were.
Of all the amendments, THIS one varies MOST from the recommendations of the state proposals in this regard, and strays most from otherwise consistent usage of plural "the people" and individual "person" or cognates (including the 1st AND 2nd Amens, to be addressed separately).
Unless there is collective sense I’m missing.
Since then, having read Amar’s piece, I find it less than wholly satisfying re the 4th, but I see his point; in any case, there is more reason to accept ONE amen, the 4th, as being able to be seen as involving the collective people, in some philosophical and abstract way that isn’t readily apparent, and as *I* have now further suggested, than to see at least THREE amens, plus OTHER uses in the Constitution, as involving individuals when it is so clear that the collective sense IS meant, based on ALL the other clues and contexts.
Even the 1st Amen reference to THE People, which some harp on, WAS originally written to refer ONLY to THE People in their collective role! In one of the longest and most divided ongoing House debates in 1789, the original phrase in what was to become the 1st Amen was the flashpoint for what divided those who sought more democratic input from those who wanted the representatives to be more independent. The original words read:
"The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances." (Madison, June 1789)
Rep. Tucker wanted to add after "consulting for their common good," "to instruct their representative." THIS was the nature of the PEOPLE assembling that the Congress had in mind.
When the Mass. Constitution is referenced against this, which Madison surely had access to, there is less doubt that the intention was for collective consistency; however, unlike in Mass, the US Constitution was picked apart and reassembled by many authors, and the end result may have lacked the unifying hand of one single author or editor, as Mass. did with Adams.
So, the enfranchised persons who made up THE PEOPLE, and who COULD serve in juries, militias, legislatures, and conventions, rather than EACH "person" per se (which included women, children, and other "second-class citizens") were those Madison was primarily concerned with protecting, since THEY were the only persons whose right and expectation to be free from govt snooping affected their ability to act freely and independently in the public arena (juries, legislatures, conventions) free from fear or intimidation. And this even comports with the NY and VA proposals that said:"That every FREEMAN has a right to be secure from all unreasonable searches and seizures of his person his papers or his property..."
Why did this say FREEMAN (sometimes FREEHOLDER) rather than just citizen/person/individual? FREEMAN is the ONLY singular term that leaves out ALL the citizens/persons/individuals who are NOT those included in the enfranchised (AND propertied!) class known as THE PEOPLE, and so referred to in every other instance!
Perhaps Madison and the Congress WERE JUST AS consistent as Adams was in the Mass. Constitution of 1780 in using that term, even if we didn’t notice it at first!
IF this is so, than Amar, himself, is wrong to focus on the right of privacy as being for ANY person who was not otherwise part of the ENFRANCHISED PEOPLE! (This NOW includes blacks and women, of course, but not, for example, kids, which would allow school locker searches as clearly NOT being a 4th Amen violation.)
Doesn’t it make more sense that the same guys who OK’d slavery and said that women couldn’t vote were not so concerned about those same "second-class citizens" not having various "security" rights as well? What rights and powers did blacks, kids, and women have that were to be "retained" by them in Amens 9 and 10? Which of these persons were going to "consult" or "petition the legislature" when they couldn’t vote or serve? Which of these persons were going to serve on juries or in the militia, or vote on the maintenance of the militia, and who needed to be "secure in their persons... papers... property" to prevent intimidation when serving in office, on juries, or as voters? Which of these persons voted each two years on the House races? NONE, and so, THEY weren’t PART OF THE PEOPLE the Constitution speaks of in EACH case!
"Individuals" included women, children, and other non-enfranchised persons; THE PEOPLE was ALWAYS the enfranchised body-politic in its corporate, collective sense! The PEOPLE is not numerical, it is conceptual; IT is a singular entity, like a corporation, which also is made up of individuals, yet it has perpetual existence and powers independent and beyond the individuals comprising it. As a single stockholder in AOL, could *I* buy up the whole Time-Warner Company? NO, only the corporate entity can do that, whether *I* agree or not.
Checks to the Boy Scouts of America can be tax-deductible, but NOT checks made out to an individual boy scout; Congress can declare war, but an individual congresscritter can’t; a jury has the right to send someone to prison, but not an individual jury member; THE PEOPLE can democratically decide how to organize and control the militia’s upkeep and readiness ("keep arms" as Adams meant it), and who gets to serve in it ("bear arms" as Madison meant it), but there are NO one-man militias and each or any single militiaman doesn’t get to unilaterally set policy or order himself into battle.
THE PEOPLE -- the Enfranchised Body Politic, or Freeman Class in its collective and political capacity -- has the right to keep and bear arms. This refers to SEVERAL rights.
THE COLLECTIVE or COMMUNITARIAN right is that the EBP can democratically organize, control, arm and maintain the readiness and upkeep of the state’s militia or military function (keep arms, as John Adams meant it), and man the well regulated state militia and engage them in the common defense (bear arms, as Madison meant it); this right is NOT fully distributive (does any one individual "keep" all the inventory of the WHOLE militia, or can any one militiaman decide unilaterally to "bear arms" against the neighboring state?).
THE INDIVIDUAL RIGHT (other than the conscientious objector right Madison sought), which is actually the DISTRIBUTIVE RIGHT, is that EACH qualified MEMBER of the PEOPLE CLASS who is drawn from the "body of the PEOPLE" and thus is qualified to serve IN the militia, may serve in the state’s militia without federal interference, and may keep HIS personal militia weapons at home, if feasible. Also, an individual member of the PEOPLE class, whether in the militia or not, may participate in the COLLECTIVE right to the extent that he may VOTE on his civilian state reps who control the militia, and some of his officers who run the militia, or otherwise get more directly involved in the operation of the militia on an administrative level.
There’s also the RIGHT of the militias to survive and be preserved, and the right of the states to maintain those state militias, and use them for state purposes, and appoint the officers and administer the discipline Congress provides for.
THAT’S IT! Nothing about "guns" or any or all individuals "owning and carrying guns" independent of the need to preserve and maintain the militias!
THE PEOPLE ALWAYS refers in the Constitution and BoR to the enfranchised body politic in its collective and political capacity.
As simple proof look at the Preamble, and at Art. I about THE PEOPLE choosing the members of the House. IF THE PEOPLE simply meant a "society of individuals" and individuals include women, kids, blacks, injuns, furreners, felons, then the idea of all those being involved in the political establishment of the Constitution, or of voting towards the election of Congresscritters is ludicrous on the face of it.
Or as was stated in the 1905 gun-rights case CITY OF SALINA v. BLAKSLEY. (Supreme Court of Kansas. Nov. 11, 1905.) [although this deals with the Kansas state constitution, the legal meaning of THE PEOPLE is clear]:"The provision in section 4 of the Bill of Rights "that the people have the right to bear arms for their defense and security" refers to the people as a collective body. It was the safety and security of society that was being considered when this provision was put into our Constitution. It is followed immediately by the declaration that standing armies in time of peace are dangerous to liberty and should not be tolerated, and that "the military shall be in strict subordination to the civil power." It deals exclusively with the military. Individual rights are not considered in this section."
See... "the people as a collective body"! Not some late 20th century communist invention here, but a 1905 KANSAS judge! And this follows an even earlier comment by a SCotUS justice in 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)
"the protection of their individual as well as their collective rights"
There it is in black and white from a Supreme Court Justice! What did the SCotUS in Cruikshank mean then, when they state categorically that there ARE collective rights?!!! That was over 125 years ago! Were they lying? Wrong? Deluded? Communists?
For those who claim that the Founders had no such concept as "collective rights" and that term is a modern invention (how modern IS 1875!), and that they didn’t even USE the term "collective," I offer THIS proof:
Here’s what Noah Webster, renowned Federalist and #1 authority on American English of the era, said on the nature of the COLLECTIVE BODY POLITIC (I have put relevant words in upper case) in ***1785***!
Sketches of American Policy, by NOAH WEBSTER, Jun’r, Esq.
The public body engages to protect the person and property of each member, and each member engages to be obedient to THE PUBLIC BODY. In other words, each individual engages to assist his fellow citizens in protecting the RIGHTS OF THE WHOLE...
Thus a state, composed of ten thousand individual interests, becomes, with respect to other states, ONE SINGLE INTEREST and is considered AS AN INDIVIDUAL. A STATE thus formed by compact is a sovereign power and has a right to command the services and obedience of each member.
This body, when active, is called a sovereignty when compared with other states, it is called simply a power. The members, spoken of collectively, are called people; spoken of severally, they may be called citizens; and each member, being under the control of THE WHOLE BODY, is, in this respect, a subject. In this act of association there is a reciprocal engagement between the public body and its particular members. The public body engages to protect the person and property of each member, and each member engages to be obedient to THE PUBLIC BODY. In other words, each individual engages to assist his fellow citizens in protecting the THE RIGHTS OF THE WHOLE, merely from a regard to his own safety; and each engages to yield obedience to the PUBLIC VOICE from the same motive. Hence we may observe that what is called patriotism or public spirit; is nothing but self-interest, acting in conjunction with other interests for its own sake; and that public good is but the aggregate SUM OF the individual interests, IN A STATE.
Thus a state, composed of ten thousand individual interests, becomes, with respect to other states, ONE SINGLE INTEREST and is considered AS AN INDIVIDUAL. A STATE thus formed by compact is A SOVEREIGN POWER and has a right to command the services and obedience of each member. Should a question arise, Whether such a state can exercise acts of tyranny? I answer, that it is impossible. The sovereign power IS THE WHOLE BODY OF THE PEOPLE COLLECTIVELY, and the people will never make laws oppressive to themselves... When therefore the sovereign power resides IN THE WHOLE BODY OF THE PEOPLE, it cannot be tyrannical, not because it is barred by a political necessity, but because the same power which frames a law, suffers all its consequences, and no individual OR COLLECTION OF INDIVIDUALS will knowingly frame a law injurious to itself...
The essence of sovereignty consists in the GENERAL VOICE OF THE PEOPLE. But each individual pursues his own interest; and consults the good of others no farther than his own interest requires. Hence the necessity of laws which respect THE WHOLE BODY COLLECTIVELY, and restrains the pursuits of individuals when they infringe THE PUBLIC RIGHTS... there are three distinct relations subsisting in a well organized society; the relation of citizens to each other as individuals; the relation of each citizen TO THE WHOLE COLLECTIVELY OR SOVEREIGN POWER and the relation of each to the magistracy or executive authority...
THE PEOPLE IN THEIR COLLECTIVE CAPACITY, enact laws; the magistrates receive the laws from them with the power OF THE WHOLE BODY to enforce them...
That the 2nd Amen recognizes no PERSONAL right is made clear in 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?
Further, look at the distinctions made in the cases presented in the govt’s argument in US v. Miller (39):
In Salina v. Blaksley, 72 Kan. 230, the court, in reference to the provision of the State Constitution declaring that the people had the right to bear arms for their defense and security, said (pp. 232-233):
That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal constitution, which says : "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." Here also the right of the people to keep and bear arms for their security is preserved, and the manner of bearing them for such purpose is clearly indicated to be as a member of a well-regulated militia, or some other military organization provided for by law...
In State v. Buzzard, 4 Ark. 18, the court, in referring to the Second Amendment, said (pp. 24-25):
If these general powers of the government are restricted in regard to the right to keep and bear arms, the limitation, to whatever extent it may exist, will be better understood, and more clearly seen, when the object for which right is supposed to have been retained, is stated. That object could not have been to protect or redress by individual force, such rights as are merely private and individual, as has been already, it is believed, sufficiently shown; consequently, the object must have been to provide an additional security for the public liberty and the free institutions of the State, as no other important object is perceived, which the reservation of such right could have been designed to effect. Besides which, the language used appears to indicate, distinctly, that this, and this alone, was the object for which the article under consideration was adopted. And it is equally apparent, that a well regulated militia was considered by the people as the best security a free state could have, or at least, the best within their power to provide. But it was also well understood , that the militia, without arms, however well disposed, might be unable to resist, successfully, the efforts of those who should conspire to overthrow the established institutions of the country, or subjugate their common liberties; and therefore, to guard most effectually against such consequences, and enable the militia to discharge this most important trust, so reposed in them, and for this purpose only, it is conceived the right to keep and bear arms was retained, and the power which, without such reservation, would have been vested in the government, to prohibit, by law, their keeping and bearing arms for any purpose whatever, was so far limited or withdrawn: which conclusion derives additional support from the well known fact, that the practice of maintaining a large standing army in times of peace, had been denounced and repudiated by the people of the United States, as an institution dangerous to civil liberty and a free State, which produced, at once, the necessity of providing some adequate means for the security and defence of the State, more congenial to civil liberty and republican government. And it is confidently believed that the people designed and expected to accomplish this object, by the adoption of the article under consideration, which would forever invest them with a legal right to keep and bear arms for that purpose; but it surely was not to designed to operate as an immunity to those, who should so keep and bear their arms as to injure or endanger the private rights of others, or in any manner prejudice the common interests of society...
In recognition of this principle, this Court, in Robertson v. Baldwin, 165 U.S. 275, 281-282, stated that the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons...
"Infringe" is NOT the same as "regulate" or "restrict"; hence, laws that restrict or regulate the possession, sale, transport, use of weapons, or who may do so, or when and where they may be permitted, do NOT necessarily INFRINGE on any constitutional rights, particularly if the weapons AND their possessor have no reasonable relationship to the preservation of a well-regulated militia:
35 W.Va. 367 (1891)
Supposing this [the US Constitution’s Second Amendment] to be a restriction upon legislation by the several states, as well as by the congress (a question upon which authorities differ) we may still conclude that by law to regulate a conceded right is not necessarily to infringe the same. Thus, a prohibition against passing any law abridging the freedom of speech or of the press, would scarcely be so construed as to prohibit all statutes defining and punishing slander or criminal libel; and the inhibitation against passing any law restricting the free exercise of religion would not prevent the passage of an act prohibiting immorality when practiced as a religious tenet. Late Corporation, etc., v. U. S., 136 U. S. 2, 49, 67, (10 Sup. Ct. Rep. 792).
The second amendment of our federal constitution should be construed with reference to the provisions of the common law upon this subject as they then existed, and in consonance with the reason and spirit of the amendment itself, as defined in what may be called its "preamble." As early as the second year of Edward III., a statute was passed prohibiting all persons, whatever their condition, "to go or ride armed by night or by day." And so also at common law the "going around with unusual and dangerous weapons to the terror of the people" was a criminal offence. Bish. Crim. St. section 784; State v. Huntley, 3 Ired. 418; State v. Roten, 86 N. C. 701.
The keeping and bearing of arms, therefore, which at the date of the amendment was intended to be protected as a popular right, was not such as the common law condemned, but was such a keeping and bearing as the public liberty and its preservation commended as lawful, and worthy of protection. So, also, in regard to the kind of arms referred to in the amendment, it must be held to refer to the weapons of warfare to be used by the militia, such as swords, guns, rifles, and muskets--arms to be used in defending the State and civil liberty--and not to pistols, bowie-knives, brass knuckles, billies, and such other weapons as are usually employed in brawls, street-fights, duels, and affrays, and are only habitually carried by bullies, blackguards, and desperadoes to the terror of the community and the injury of the State. Bish. Crim. St. section 792.
No. 7961. Circuit Court of Appeals, Third Circuit.
Decided Oct. 28, 1942.
... Weapon bearing was never treated as anything like an absolute right by the common law.
It was regulated by statute as to time and place as far back as the Statute of Northampton in 1328 and on many occasions since. The decisions under the State Constitutions show the upholding of regulations prohibiting the carrying of concealed weapons, prohibiting persons from going armed in certain public places and other restrictions, in the nature of police regulations, but which do not go so far as substantially to interfere with the public interest protected by the constitutional mandates. The Federal statute here involved is one of that general type. One could hardly argue seriously that a limitation upon the privilege of possessing weapons was unconstitutional when applied to a mental patient of the maniac type. The same would be true if the possessor were a child of immature years. In the situation at bar Congress has prohibited the receipt of weapons from interstate transactions by persons who have previously, by due process of law, been shown to be aggressors against society. Such a classification is entirely reasonable and does not (p.267) infringe upon the preservation of the well regulated militia protected by the Second Amendment.