Montana: Wrong Heller Decision Would Violate Its Compact with the United States
Brian Doherty | February 20, 2008, 10:13am
An interesting wrinkle in the gun-rights controversy: Various Montana politicians have signed a resolution arguing that anything other than an individual-right interpretation of the Second Amendment (at issue in the forthcoming Supreme Court case Heller v. D.C.) would violate the compact between Montana and the U.S.
Excerpts from the resolution:
WHEREAS, when the Court determines in Heller whether or not the Second Amendment secures an individual right, the Court will establish precedent that will affect the State of Montana and the political rights of the citizens of Montana;
WHEREAS, when Montana entered into statehood in 1889, that entrance was accomplished by a contract between Montana and the several states, a contract known as The Compact With The United States (Compact), found today as Article I of the Montana Constitution;
WHEREAS, with authority from Congress acting as agent for the several states, President Benjamin Harrison approved the Montana Constitution in 1889, which secured the right of "any person" to bear arms, clearly intended as an individual right and an individual right deemed consistent then with the Second Amendment by the parties to the contract;
............
THEREFORE BE IT RESOLVED by the undersigned members of the 60th Montana Legislature as follows:
1. That any form of "collective rights" holding by the Court in Heller will offend the Compact; and.........4. Montana reserves all usual rights and remedies under historic contract law if its Compact should be violated by any "collective rights" holding in Heller.
A longer explanation of their "contract argument."
Neu Mejican | February 21, 2008, 12:01pm | #
Wayne,
I never claimed the 2a defines an individual right, or that it was intended to define an individual right.
I claimed that the poor choice of language in the 2nd
fails to sufficiently define the right it is attempting to protect. Your typical state constitution does a better job with the language.
Are you saying that your rights flow from government documents?
A couple of points:
I did not miss the import of the first clause. As I was discussing, it is the meaning of the phrase "keep and bear arms" that causes much modern confusion. Although the current usage of the term includes the meaning "to carry weapons" its meaning in the 18th century was commonly that involving military service.
Again, the wiki on this one is extensive (as is typical with controversial subjects).
"In late-eighteenth-century parlance, bearing arms was a term of art with an obvious military and legal connotation. . . . As a review of the Library of Congress's data base of congressional proceedings in the revolutionary and early national periods reveals, the thirty uses of 'bear arms' and 'bearing arms' in bills, statutes, and debates of the Continental, Confederation, and United States' Congresses between 1774 and 1821 invariably occur in a context exclusively focused on the army or the militia."
The phrase "bear arms" is even used to mean "military service" in the Declaration of Independence.
Saul Cornell's book (see link above) provides a reasoned discussion of the controversy.
(1) when the first Congress drafted the Bill of Rights it used "right of the people" in the first amendment to denote a right of individuals (assembly)
The right of the assembly is clearly a right of groups of people (an individual can not assemble in any meaningful sense). If that phrase is being used to support an individual interpretation of the same phrase in the 2nd, it provides weak support.
The "militia was the main point argument" (see Cornell) is that the right of the people to form a militia (to bear arms) is inherent on the citizens, and does not require the involvement of the state, can not be hindered by the state, and is not a function of the state, but of the citizenry.
This distinction carries with it the clear implication that "the people" and "the state" are not the same thing.
This is accurate. The people and the state are not the same thing. However, the people are a collection, a plural, a group. Conceptually separate from the state, but still a group.
I would say that the wording of the original draft of the 2nd indicates that it was introduced to define this right of the citizenry to form non-state militia, and the right of individuals to be free from conscription in those non-state militia. Clearly, as can be seen by the various re-writes of that original draft, there was some debate and disagreement about the issue at the time.
The result, as is often the case in group writing, was an ambiguous wording that has resulted in considerable disagreement over the years.
To claim that the controversy results from an unwillingness by those that disagree with you to just read the words of the 2nd is disingenuous at best (rhetorical hoops my ass).
There exists a controversy because the language is not clear.
Neu Mejican | February 21, 2008, 9:25pm | #
Wayne/Bob Smith,
I see.
So let me get this straight:
I claim the language is ambiguous (meaning likely to be interpreted differently by different people).
I cite:
*many people over the years have understood the meaning of the 2A in a very different way than your preferred interpretation,
*a long history of controversy over the meaning
*authorities on the subject that disagree,
*judicial rulings have varied regarding that interpretation,
*the textual history of the various revisions it went through before being adopted which seem to all include some discussion of militia (making 2A what I call "mostly about militia" and Cornell calls "a civic right")
And your refutation of the ambiguity claims consists of.
"No its not. It clearly only has one possible interpretation and it means what I say it means."
[yawn]
Bob Smith,
"A right to life in one's home being necessary to the security of a free state, murder shall be illegal".
That was poorly formed.
You would do better with this version:
"The right of the people to
keep and bear arms be free from murder in their home shall not be infringed;
a well armed and well regulated militia a living citizenry being the best security of a free country; but no person religiously scrupulous of
bearing arms watching their neighbor's back shall be compelled to
render military service confront a murderer in person.
The problem with your syntactic argument is it misses the source of the ambiguity-the semantics of key phrases in the original text.
"keep and bear arms" can mean either a) carry arms, or b) fight as part of a militia. The fact that the second clause is all about militia helps to motivate interpretation b...some will disagree, of course, in support of my claim.
The 2nd as passed:
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.
Has, of course, a different syntactic structure.
It could be considered equivalent grammatically to "Because a well regulated militia is necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed."
Again, this seems to be primarily about the importance of a militia. It does not seem to be about your right to have a gun to defend yourself from a mugger.
"The people," fwiw, is not ambiguous, as TrickyVic points out...it refers to the collective also referred to as the citizenry...it is an inclusive term.
But the "right to assembly" and the "right to form militia" seem very parallel to me in how they are phrased and conceptualized. It is the right of citizens to get together to do things...something that can only occur when there is more than one person...a collective if you will.
Ed | February 22, 2008, 12:03am | #
The wording of the 2nd amendment "keep and bear arms" does indeed give the citizen the right to own and use an arm if needed. The term "bear" means "to exert influence or force" or from the middle English, of which much of the language of the time period was based, "bring forth".
James Madison was responsible for proposing the Second Amendment and was one of three authors of the Federalist Papers, a group of essays published in newspapers to explain and lobby for ratification of the Constitution.
In Federalist Paper 46, James Madison argued that a standing federal army could not be capable of conducting a coup to take over the nation. He estimated that based on the country's population at the time, a federal standing army could not field more than 25,000 - 30,000 men. He wrote:
Quote:
"To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence."
"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms."
The above means that not only was the 2nd amendment created to assure that the citizenry would be armed if called upon as a militia and to provide personal protection which, was a given in those times, the citizens needed to be armed so they could rise against the government if the government got out of hand.
Thomas Jefferson, the author of The Declaration of Independence wrote:
Quote:
To William Stephens Smith, 1787
"What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms."
Quote:
To Peter Carr, 1785
"A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks."
Quote:
To John Cartwright, 1824
"The constitutions of most of our States assert that all power is inherent in the people; that they may exercise it by themselves in all cases to which they think themselves competent..., or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press."
Quote:
"No free man shall ever be debarred the use of arms." Thomas Jefferson, Proposed Virginia Constitution (1776).
Quote:
"False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crime."--Cesare Beccaria, quoted by Thomas Jefferson
Some further quotes that support the 2nd amendment:
Quote:
"A militia when properly formed are in fact the people themselves and include all men capable of bearing arms .To preserve liberty it is essential that the whole body of people always possess arms . . . " Richard Henry Lee, Additional Letters From the Federal Farmer 53 (1788).
Quote:
"I ask, sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them." George Mason, during Virginia's Convention to Ratify the Constitution (1788).
Quote:
"THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY....Who are the militia? are they not ourselves?...Congress have no power to disarm the militia....Their swords, and every other terrible implement of the soldier, are the birth right of an American. The unlimited power of the sword is not in the hands of the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people. --- Tench Coxe Pennsylvania Gazette February 20,1788
Quote:
"Arms in the hands of citizens [may] be used at individual discretion...in private self-defense..." (John Adams, A Defense of the Constitutions of the Government of the USA, 471 (1788))
The quotes above are just a sampling of the thinking of the men that were our founding fathers. Their thoughts and position on the ownership and use of arms is clear.
Neu Mejican | February 22, 2008, 10:29am | #
Wayne,
I recognize that the author of the article you cite draws a conclusion that agrees with your preferred interpretation.
However, I am not convinced that he makes a convincing case that the language is unambiguous (he actually makes much of the fact that the language is ambiguous to modern readers and attempt to explain why their is controversy over the meaning).
Read the Cornell book.
He knows as much about the issue as Reynolds and comes to a different conclusion.
This is why, of course, appeals to authority are unconvincing. One side can always find an expert that agrees with their point of view.
I will, of course, reiterate, since you didn't seem to get it any of the other times I stated it...I essentially agree with the Standard Model, which says that the 2nd is primarily about militia. I am unconvinced, however, that self-defense was on the minds of the framers as they debated the issue. They had just gone through a struggle to overthrow tyranny. I think they were concentrating on the value of a militia for protecting against tyranny.
The evidence that they all thought you have a right to arm yourself for self-defense is orthogonal to the 2nd (it is covered in the 9th, however). I think the proper framing of the 2nd is an specification/extension of the right to assembly.
What good is it to say that the people can gather to protest their government, if the government can infringe their right to assemble as a militia to oppose tyranny?
So no Wayne, the 2nd doesn't mean what you think it means. You are wrong.
=/;^p
