Guns

The Right to Bear Arms in Historical Context

Founding realities refute New York’s arguments supporting its gun carry ban.

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The Boston Massacre was an important event leading up to the Revolutionary War. It also provides important evidence about the scope of the right to keep and bear arms. The Massacre was a clash between British soldiers and colonists in downtown Boston that resulted in the death of five colonists. The British soldiers were tried for murder, and they were defended by one of the most prominent and accomplished lawyers in America—future President John Adams.

A key issue was whether the soldiers acted in self-defense against the assembled colonists, many of whom were armed with clubs. In making his plea to the jury, Adams did not assert that the colonists committed an act of unlawful provocation merely by carrying arms. Instead, he conceded that "here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defence, not for offence, that distinction is material and must be attended to." 3 Adams, Legal Papers 248 (1965).

Adams' oration provides several key insights into the right to bear arms at the Founding.

First, Adams' understanding of the right to bear arms is fundamentally incompatible with New York's assertions in NYSRPA v. Bruen about the meaning of the Statute of Northampton and its analogs. Massachusetts had enacted a Statute of Northampton analog in 1694, yet Adams—against the interests of his clients—acknowledged that the inhabitants of the colony had the right to carry arms for their defense.

Second, Adams provides further evidence that carrying arms was unlawful only if done in a threatening or offensive manner, and not if done defensively. As I explained in my second post in this series, New York has attempted to explain away or elide this distinction, but it cannot be escaped.

Third, Adams completely undermines the notion, pushed by New York and some of its amici, that at the founding, citizens would risk being thrown in prison if they carried arms in "populous areas." (NY Br. at 33.) The Boston Massacre occurred in 1770, and at that time Boston was one of the most populous cities in America, trailing only Philadelphia and New York. Neither history nor text supports the notion that the Second Amendment is limited to the countryside.

Fourth, Adams' statement underscores the importance of engaging in a careful contextual inquiry when evaluating the Founding-era understanding of the right to keep and bear arms and other constitutional rights. Real-world events like Adams' speech and the habits of prominent Founders discussed in my initial post provide an important backdrop against which to evaluate the Founding-era understanding of archaic and ambiguous language such as that contained in the Statute of Northampton, which was enacted over two hundred years before the birth of Shakespeare.

Opponents of an individual right to bear arms often seek to engage the debate at a more abstract level that fails sufficiently to grapple with the details of historical events. A particularly egregious example of this is the attempt by some researchers to use a "corpus linguistics" analysis to relitigate Heller and show that the Second Amendment does not protect an individual right to bear arms. These analysts run phrases like "bear arms" through databases containing a large number of Founding-era texts, categorize the hits into various senses, and then tally up the results.

There are a whole host of conceptual and practical problems with this sort of analysis, which others have explored in depth. See, for example, Mark W. Smith & Dan Peterson, Big Data Comes for Textualism: The Use and Abuse of Corpus Linguistics in Second Amendment Litigation (forthcoming Drake L. Rev. Spring 2022), as well as the amicus brief of the NRA Civil Rights Defense Fund. But one key problem with it is that an analysis that simply searches databases and counts up hits fails to engage with the contextual information necessary to conduct a meaningful inquiry into the meaning of a constitutional right. This is starkly illustrated by the fact that while the overly general term "bear arms" may be used most often in a military sense, the correct search term is "the right to bear arms," and it can only refer to an individual liberty.

The relevant context for the Second Amendment includes not only historical events but also the conceptual understandings of the Founders. New York displays a deficient understanding here as well. For example, in attempting to make the case that public carrying was generally banned in populous areas in England, New York states that carrying in such circumstances "suggested that the King was 'not willing or able to protect his subjects.' " (NY Br. 24 n.14, quoting one of the reports of Sir John Knight's Case.) Whether or not this was true—and, as I explained in my second post, Sir John Knight's Case supports a general right to carry for self-defense—this rationale cannot possibly have been accepted in the United States. After Independence, American citizens no longer had a king, and they no longer were subjects. Sovereignty in our republican form of government lies in the People themselves, and the People are not at the mercy of a king (or any other Government official) for their protection. The notion is anathema to our Nation's deepest ideals. New York is seeking to strip its people of their rights as free citizens.

Another conceptual blind spot is evident in New York's insistence that barring typical law-abiding citizens from carrying arms promotes public safety. The Founders, however, many of whom were influenced by the Italian criminologist Cesare Beccaria, likely would have been extremely skeptical of this argument. See, e.g., Mark. W. Smith, Enlightenment Thinker Cesare Beccaria & His Influence on the Founders: Understanding the Meaning & Purpose of the Second Amendment's Right to Keep & Bear Arms, 2020 Pepp. L. Rev. 71 (2020). Adams quoted Beccaria in the first sentence of his argument for the defendants in the Boston Massacre trial. And Thomas Jefferson copied into his commonplace book Beccaria's statement that "laws that forbid the carrying of arms … disarm those only who are neither inclined nor determined to commit crimes" and therefore "make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."

In conclusion, I again thank Eugene for giving me the opportunity to blog here this week, and I hope my posts have been informative. Those interested in digging deeper into these issues can consult my recently published book on the right to carry, which also has a thought-provoking Forward by Renée Lettow Lerner.

NEXT: Today in Supreme Court History: October 15, 1883

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  1. Stevens had to intentionally misrepresent the historical writings and other historical events to claim that there was never an individual right. Compare and contrast Stevens dissent in Heller with the actual historical events and writings

    1. None of this matters - progressive don't argue with good faith

      1. The real reason for the Second Amendment was to kill British soldiers. Today its main purpose is to kill the Commies that have infiltrated and taken over our government by cheating.

        1. Did Adams claim the British soldiers had qualified immunity?

        2. "The REAL reason for the Second Amendment was to kill British soldiers, six years after the Revolutionary War ended!"

          1. The threats continued. The Amendment came in handy in the War of 1812. Militias and guerillas harassed the British Army, made life unbearable for them.

          2. We had another shot at them, so to speak in 1812.

      2. A long, careful discussion of this topic will persuade approximately no one, certainly no one on the side opposing the right of self defense.

        1. The reason the lawyer protects the criminal. The reason the lawyer says such stupid, ridiculous shit as, better 10 guilty men go free than one innocent be found guilty. The reason is the criminal is a good client. The victim generates no income for the lawyer and may rot. The lawyer is a rent seeking scumbag scam artist protecting, empowering, privileging his client, the criminal.

          1. Those 10 guilty criminal clients of the scumbag lawyer will commit 200 felonies a year if loose. The lawyer is proposing we suffer 2000 felonies a year for his twisted, sick, stupid principle.

      3. Correct. They know the 2nd Amendment means what it clearly says. They just don't like it.

  2. "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."

    This is very simple. The sentence divides into two halfs:

    "A well regulated militia, being necessary to the security of a free state,"

    and

    "the right of the people to keep and bear Arms, shall not be infringed."

    The first half says 'this is why this right is necessary,' and the second half says 'this is the right.' The first half is not the right itself, and does not limit the right. It is merely justification. The only part of that one sentence that matters to legal decisions is the definitive statement:

    "the right of the people to keep and bear Arms, shall not be infringed."

    The earlier words were just dressing - the latter is the statement of rights. Keep AND bear. Not keep but not bear. Keep AND bear. Could not be clearer.

    I don't own guns - never have. I've always been afraid I'd shoot myself. Or one of you a$$holes when you piss me off.

    1. The two rights are not mutually exlusive contrary to arguments made by the two sides.

      The historical writings made considerable mention of the "common defence" and the right for " self defence" often times with both common defence and self defence in the same sentence.

      That being said, its takes signficant liquistic gymnastics to claim there only a collective right, but only a small amount of liquists twisting to claim that there is only an individual right.

      1. It also takes serious intentional self-delusion to first misrepresent the 2A as a right to regulate the militia, then somehow extend this to regulating the right to keep and bear arms outside the militia.

        1. Hint - the BoR is to protect the rights of the individual and the people.

          You comment makes zero sense

          1. Yes, exactly. I said just that. See "misrepresent".

      2. Actually, there's a way to square the circle.

        The States each have a militia. This militia is dependent upon the individual ownership of arms.

        To preserve the collective capability of the State to field a militia, the Federal government is prohibited from disarming the individuals that the State is inherently dependent upon.

        So, it can be a collective right that is protected at the individual level.

        1. More like it's an individual right to serve a collective purpose.

        2. Bubba, that at least is an interpretation consistent with the historical record. Which for would-be originalists ought to be the best kind of consistency. Problem is, it won't get the gun advocates where they want to go. It leaves open the likelihood that defense of a right to be armed for purposes other than militia use was protected by the states, not by the Federal Constitution. That appalling possibility occasions need for inconsistency with the historical record, at the sacrifice of would-be originalism. Which is where we are.

          1. Well I do not see any gun grabbers advocating for the holding in Aymette vs TN to be the pattern SCOTUS ought to follow.

            Imagine every citizen being able to keep and bear those arms used in civilized warfare. All restrictions on fully automatic weapons go out the window.

            Keep in mind that Aymette was a narrow decision, other states read their RKBA provisions and the second amendment more broadly, including a right to arms for self defense as well as defense of the state. So the narrow reading is hardly consistent with the entire historical record. A snapshot maybe, but even the TN supreme court in a later decision held for the broader view.

            1. Mike, I have advocated for militia access to fully automatic weapons, but only under military-style discipline.

              1. Your view is only partly consistent with Aymette. Aymette does not place restrictions on the keeping of military arms, it does not require that the citizens be in under military discipline to keep such weapons. It only places a restriction on the bearing of arms, that being the common defense, which that court defines narrowly (not including self defense). Moreover, the Aymette court states that one of the reasons for the citizens having such arms is to prevent tyranny, which makes a reading allowing the government to deny arms to those outside of the government sanctioned militia a non-starter.

      3. There's no such thing as a 'collective right'. The founders knew this - they'd all read Locke.

        But an individual right can also serve a collective purpose as well as an individual purpose (and frequently does). It's important not to conflate the right with the purposes the right serves.

        Mention of common defense does not make the right collective. Rather, individuals can, because of their individual right, band together to engage in common projects.

        No one would argue that free speech is a collective right, but free speech allows like-minded individuals to speak together, not just individuals to speak apart.

        1. Squirrelloid, the right of a colonial legislature to petition the British government is a collective right. Arguably, press freedom covers two different rights (at least), one individual and the others collective. Freedom to peaceably assemble would not work very well as an exclusively individual right. A People's right to field a militia is of course collective. What implications that may have for an individual right to bear arms for other purposes is not a question to be over-simplified, or answered arbitrarily.

          1. Arguably, press freedom covers two different rights (at least), one individual and the others collective. Freedom to peaceably assemble would not work very well as an exclusively individual right.

            Ultimately, both are still rights possessed by individuals who may exercise those rights collectively.

      4. The “operative clause” of the 2nd Amendment doesn't cause any justifiable confusion, “The right of the people to keep and bear arms shall not be infringed” is clear and direct. 
        The “prefatory clause”, a nominative absolute, can be twisted into all sorts of meanings dealing with “states”, “militias”, and “regulations” until it ceases to be a statement of the “right of the people”, but is (somehow) transformed into a grant of power to the Government over the people.   
        The "Militia clause" is simply the statement of a reason (a damned good one) that the new-born Federal Government would not WANT to infringe on the pre-existing, natural "right of the people to keep and bear arms”, clearly stated and guaranteed by the 2nd Amendment.   
        It would be against the self-interest of a Constitutional Government, greatly restricted concerning a “standing army” (widely considered by anti-Federalists to be “a threat to Liberty”) and thus dependent on the militia as its primary defense, to infringe on the people's RKBA, and thereby undermine the militia. It was from the armed citizenry that the militia was drawn. Disarm the people and the Union, and all its member states, is left defenseless. The Government would “cut its own throat” by that infringement, a disarming of the people leading to the disarming of the militia. The militia might very well be all that stood between the officers of that Government and a jail cell ---- or the gallows 
        The people's right to arms stems from the essential “right to life” and the implied right to the tools necessary to defend ones life from criminal aggression. Militia service is most certainly NOT the reason the right itself exists, to serve the need of the Government for an armed force.  Assuring the militia would be armed – because the people would be armed, was a secondary benefit of the people's RKBA, a side effect of great concern to the Government.

    2. minor correction:

      This is why the non-infringement of the right is necessary.

    3. Exactly the point I was going to make. I do own guns and have had to use mine three times to protect myself and others. Thankfully I've never had to fire them. Just the sight of them was enough to defuse the situation.

    4. The first half says ‘this is why this right is necessary,’ and the second half says ‘this is the right.’ The first half is not the right itself, and does not limit the right.

      This argument annoys me. It involves on a slippery, intellectually dishonest use of the word "limit".

      Let's say you have two statutes:

      Statute number 1: "the government shall not unreasonably abridge the rights of private property owners".

      Statute number 2: "Because of the necessity of stability and predictability in the real estate market, the government shall not unreasonably abridge the rights of private property owners".

      Litigants would have a VERY strong argument that statute 2 is narrower than statute 1, because the purpose clause makes clear that it is talking about real property, and not necessarily chattels, intellectual property, vested contract rights, or other forms of property. And it has nothing to do with the preamble "limiting" the statute- it has to do with the fact that the preamble is PART of the statute and we take the statute as a whole and in light of its purpose. All of these are venerable rules of statutory construction.

      So it isn't "limiting" the Second Amendment to construe it in light of its stated purpose. That's unmitigated dishonesty, and it is also completely inconsistent with the rules of statutory construction (which are set forth in numerous Supreme Court cases and are the law of the land which advocates are not at liberty to ignore).

      The point of the Second Amendment was to create a Swiss-style system: an armed populace, which would be well regulated, disciplined, and trained, and available to be called up into service in defense of the government. And YES that means they would have an INDIVIDUAL right to keep and bear arms- the "collective right" argument was always bunk. But it also means that the government can and could impose significant restrictions that would tie that right to militia service.

      1. Can you give a specific example of a law that you think is permissible in light of the prefatory clause, but that would impermissibly infringe the right the bear arms if the clause were not present?

        1. Sure. I think a law that would require everyone who owned a gun to register and show up for militia training would be constitutional, and if the preface were not there, it very well might not be.

          1. I think a law that would require everyone who owned a gun to register and show up for militia training would be constitutional

            Then you're relying on a slippery, intellectually dishonest use of the word "think".

          2. How could it not be constitutional, when the militia clauses in Article 1 section 8 explicitly authorize Congress to do just that?

      2. Apparently you believe the Founders were incapable of writing what they wanted to accomplish. They could have written "A well regulated militia, being necessary for a being necessary to the security of a free state, the right of the militia to keep and bear arms shall not be infringed." That would have limited the right to members of the militia (not much of a limitation), but instead the Founders wrote that the right belonged to the people. Your argument fails to address why the Founders acknowledged that the right is held by the people.

        1. The people were the militia. So you're right he's wrong, but the reason he's wrong is he thinks it only covers an *organized* state-run militia.

          1. It covers a "well-regulated militia," which has nothing to do with gun regulations as we understand them now. It means under military discipline, as we understand it now.

            1. It means under military discipline

              No, it doesn't.

          2. It covers the unorganized militia; however, governments have the power to organize the unorganized militia, train it, discipline it, etc.

            1. Isn't that right called "the draft"?

      3. No, it means that the government can impose training and mandatory service on everyone. It doesn't mean that they can restrict the right.

      4. Except the militia was and is all able-bodied males. It never required formal military service, and wasn't specific to formal militias.

        And well-regulated does mean disciplined and trained - in the use of their weapons. So the first clause actually broadens the right - ownership and carry isn't enough, they must be able to *practice*.

        So yes, starting clause does contain important information, but it actually broadens the right, not limits it. It does not permit the state (or states) to regulate which arms terribly much though, because the militia intended by the founders (and as still defined by US law) was not a formally organized one.

        1. Squirelloid, you know you are making all this stuff up off the top of your head, right? If you had to justify any of those assertions with assorted quotations from the historical record—without reference to purpose-built secondary advocacy or modern court decisions—you would be at a complete loss. You ought to give that some thought.

          1. Historical quotes? You mean, like this one?

            "I ask, sir, what is the militia? It is the whole people, except for a few public officials."
            Perhaps you can guess who said it.

        2. Except the militia was and is all able-bodied males. It never required formal military service, and wasn’t specific to formal militias.

          Sure. But the government can organize that militia of all able bodied males (and females, I would argue), train them, discipline, etc.

          And well-regulated does mean disciplined and trained – in the use of their weapons.

          Here, you are just narrowing a provision you hate and don't have the votes to amend out of the Constitution. You can certainly argue that "regulated" only refers to discipline, training, and similar rules (although there are also definitions from 1791 that are broader), but even if you are going to make that move, saying "in the use of their weapons" is a completely made up addition from you. E.g., the framers would certainly understood that, for instance, imposing military discipline on the militia, organizing it under a command structure, providing for the storage of surplus weapons in armories, and any number of other potential regulations would constitute discipline and training of the militia.

          1. Sure. But the government can organize that militia of all able bodied males (and females, I would argue), train them, discipline, etc.

            The constitution says so explicitly. "To provide for organizing, arming, and disciplining the militia...". Training, on the other hand, is explicitly reserved for the states, subject to congress laying down the discipline to be used in that training.

      5. " the government shall not unreasonably abridge the rights of private property owners”.

        The first thing wrong with your analysis is that the second amendment does not include the word "unreasonably." Instead it is a straightforward command to not infringe the right.

        Also you miss that the right is not created by the amendment, rather the amendment prevents its infringement. The first clause is a reason for that non-infringement but it does not modify the actual right to be protected. It is intellectually dishonest to claim that it does. The professors of linguistics in Heller pushed the sleight of hand argument that the first phrase being absolute construction is a sentence modifier. But they neglected to tell their audience that the absolute phrase does not modify the subject of the main clause, which is the right to keep and bear arms. Instead the absolute phrase modifies the entire sentence by informing the reader why the right is not to be infringed. Surely an educated person can distinguish between the main clause and the subject of the main clause. One is modified by the absolute phrase, the other is not.

      6. And in the early years we had just such a law but it was repealed due to it being unduly burdensome for many individuals.

  3. Sovereignty in our republican form of government lies in the People themselves, and the People are not at the mercy of a king (or any other Government official) for their protection.
    And I would add 'for their prosperity'

    This is a great passage to anchor the constitution in general, and for sure the Bill of Rights.

    1. iowatwo, you are right. But if you try to think through the implications, you will discover among them the notion that your rights are not yours by virtue of being born, or by divine right, but by the will of the People. Hope you are ready for that, because a lot of folks try to have it both ways, and find themselves spouting nonsense, tangled in contradictions.

  4. Adams argued that "the inhabitants had a right to arm themselves *at that time*." The testimony in the Boston Massacre trial suggested that the inhabitants were not perennially armed with weapons, but instead fetched their weapons after they thought they might need to use them defensively. In Adams' own account, some of the inhabitants said "let us go and get our guns" after it seemed like there'd be a need. (Kidder, History of the Boston Massacre, at 10.) And the British soldiers themselves were not carrying *loaded* guns, but rather loaded them on the Custom House steps just before using them. (e.g., testimony of Ebenezer Bridgham in Kidder at 130: "Did they load their guns before the people surrounded them, or after? They were loading at the time.") The history of the Boston Massacre and following trial is a bit more complex than presented here as relates to the modern debate over the scope of the right to carry a loaded handgun *anytime* in public places.

    1. "Loading" is a red herring. The weapons the British soldiers were carrying at the time were single-shot weapons which had to be loaded immediately before firing or the odds were that they wouldn't fire at all. Other weapons of the day (including some that individual Founders were known to possess) did not suffer that deficiency. The soldiers' act of loading cannot be read as a justification to restrict the carrying of modern weapons any more than the existence of quill pens can be turned into a justification to restrict email or internet blogs.

    2. Likewise, the fact that some had to "go and get our guns" based on a perceived change in need has no bearing on whether they had a right to carry regardless of need.

      1. But it does have a bearing if one is trying to base today's understanding of the right to bear arms on things like the practices in Boston in the framing era, and especially if the Boston Massacre is the evidence put forward. And the fact that guns were unloaded is similarly relevant (and also highlights the anachronism inherent in so many efforts to use founding era gun practices to support unfettered modern gun rights).

        1. The argument is that I can carry a handgun, and a loaded magazine of ammunition, but not insert the magazine until I perceive a need?

          California had a long time provision for the open carry of unloaded handguns.

        2. That might be a valid argument if the practices specific to the Boston Massacre were the only practices that existed at the time. That is clearly not the case. The large number of counter-examples show that the Founders made no such assumptions about dependencies when crafting the Second Amendment.

        3. so many efforts to use founding era gun practices to support unfettered modern gun rights

          That bullshit argument is always a reliable indicator of the intellectual dishonesty and/or weakness of whomever is making it.

  5. ". . . I do not deny the inhabitants had a right to arm themselves at that time, for their defence, not for offence, that distinction is material and must be attended to."

    That doesn't bode well for the dumb fucks who squawk about a future civil war.

    By taking up arms against the United States, that means you're terrorists.

    1. Ah... the old "insurrectionist" canard.

      The framers knew the difference between insurrection (see Federalist 28) and defense against usurpation by the rulers. How is that trained lawyers are unable to make that distinction?

      Unlike Adam Winkler and others, the framers explained in detail the difference between "insurrection" (an unfortunate illness which republics often suffer) and the people being able to defend themselves and the laws from usurpation by the rulers (a right paramount to all positive forms of government). Winkler and others conflate those two very different concepts.

      The very first commentator on the second amendment, Tench Coxe, made the argument Winkler intentionally mischaracterizes.
      "As the military forces which must occasionally be raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.”

      As did Joseph Story:
      "The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."

      And the TN supreme court in Aymette vs Tenn:
      "The free white men may keep arms to protect the public liberty, to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution" and...
      "so the arms the right to keep which is secured are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority."

      Even that renowned Constitutional scholar and former Supreme Court Justice John Paul Stevens makes a similar argument, but he sees in the second amendment as only a protection of the state governments as such vis-a-vis the Federal government. Stevens and others have, in the words of James Madison (federalist 46), “lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other." Later in this same essay Madison states: “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. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors.”

      Note it is the people who are armed, and the existence of the state governments is presented as an advantage to the people.

      Justice Stevens' dissent in Heller turns Fed 46 on its head and claims the people are merely agents of the various states, with a right to keep and bear arms only in service to the state.

      Stevens says of the second amendment that “It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States.”

      Justice Stevens’ dissent itself undermines the so called non-insurrectionist view in that Stevens claimed above that the main concern behind passage of the second amendment was to defend the states against federal tyranny.

      1. Steven's statements regarding the historical writings and events in his heller dissent was dishonest and he knew it

        Same with his dishonesty in kelo

      2. The framers knew the difference between insurrection (see Federalist 28) and defense against usurpation by the rulers.

        Maybe they did, but they also defined one crime in the Constitution and defined it to include "defense against usurpation by the rulers". Levying war against the United States is treason, no matter the justification.

        Arguments that posit any sort of right to commit treason are completely inconsistent with constitutional text and are a legal nonstarter, no matter what romantic views the framers may have expressed about revolutions.

        1. It's only treason if you lose.

          1. That's correct but that's not a legal point, that's a pragmatic one. Legally, the Constitution prohibits treason and arguments that infer a right to commit treason into the Second Amendment are losers.

            1. There you go again. You are confusing the constitution, which is the law, and the rulers.

              You said: they also defined one crime in the Constitution and defined it to include “defense against usurpation by the rulers.”
              You keep using that word treason, but I do not think you know what it means. My copy of the constitution does not define treason that way.

              One can in fact claim self defense if attacked by someone in authority who is acting outside of their legal authority. It is not treason to defend yourself against extra legal attacks, heck it is not even a crime if actual self defense.

            2. Was the American Revolution authorized by George III, or a vote of Parliament? The "law" is determined by the winner, who may declare the loser a "traitor".

        2. It's insurrection if the people doing it are supposed by the people opposing them. Kinda like an election with arms.

          See Whiskey Rebellion. It failed because former President Washington led a greater force of militia against the portions of militia rebelling. IIRC, they didn't even hang the leaders.

      3. "Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors.”

        But Lisa Simpson dismissed, with a wave of her hand, the idea of defending yourself against a modern government taking over, insulting the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors.

        "You will have no way to rescue yourselves from the hands of your oppressors, so just be debased." -- Lisa Simpson, paraphrased

      4. Since our govt is of the people, by the people, and for the people then it”s just people against people - which is stupid and rather anarchistic.

    2. "By taking up arms against the United States, that means you’re terrorists"

      As were the colonists who took up arms against the Crown

      1. And as are liars who contort the Constitution's clear language to overturn it.

      2. Terrorism attacks the people to strike fear in them for supporting the current power structure. The targets are the opposite of military.

        I was unaware the Continental Army went around attacking random civilian gatherings to teach them not to support the English army.

        1. Krayt, the Continental Army came after the revolutionary terrorism. Arguably, the Boston Tea Party was terrorism. Tar and feathers and hanging in effigy were certainly terrorism. Tories were not abandoning New England for Nova Scotia because they preferred a longer winter.

      3. From the King’s POV - yes.

        Of course the ultimate difference is folks today have constitutional 1A, and citizenship, and voting rights - all universal rights - which the colonists didn’t have.

        1. I try not to miss an opportunity to point this out: voting is more than a right. It is a sovereign power. That has big-time implications for how far states can go to regulate it—which is to say they cannot regulate it at all.

          The states have no power to constrain the sovereign. State's election activity is properly limited to the ministerial task of conducting elections according to the will of the people that elections be fair and open, and counting the votes accurately. Efforts to regulate beyond that ought to be treated as crimes—subject to the kinds of punishments a sovereign jealous of its power inflicts.

    3. And yet another person that doesn't know what "terrorist" means.

      In general, a terrorist is one that conducts unlawful violence against the civilian populace (outside of war operations).
      Someone taking up arms against "their" government would be a revolutionary - or a rebel, separatist, traitor, or insurrectionist, depending on cause - but not necessarily a terrorist.

      Very few of the Southerners in the American Civil War were terrorists. All were rebels.
      Some of the Northerners were terrorists. None were rebels.

      1. Toranth, every soldier fighting for the South was defending a system of economy based on terrorism. That defense was the explicitly announced purpose of the war.

        1. And look at those goalposts fly!
          How quickly you jump from supporting the claim that the soldiers were terrorists - people that performed violent attacks on civilians outside of war - and jump to a deliciously vague "defending a system of economy based on terrorism".

          Where you, too, fail to use "terrorism" properly.

          1. Vague? You think slavery was not based on terrorism? Or maybe you think there can't be any such thing as a terrorist state? If so, count me out as audience for fatuous corrections about, "terrorism."

            1. Slavery was no more based on terrorism than the current US is, or medieval Russia was, or modern Iran is. Do you think classic Greece was nothing but Terrorist states?
              And in case you try to make that argument, no, enforcement of laws always involves force or the threat of it - this does not make it terrorism.

              Iran is, however, a state-sponsor of terrorism, as they direct their agents to perform violence against civilians outside of war. This does not mean they are a "terrorist state" or have a government or economy based on terrorism.

              1. Toranth, American slavery was more terroristic than any of your examples. And it had almost nothing to do with enforcement of laws. What it did was empower slave owners—as private individuals acting at pleasure, and with legal impunity—to torture or kill people who disobeyed them, merely annoyed them, wouldn't sleep with them, fell short of work quotas, or for any other reason, or for no reason. A private power for slave owners to kidnap people's children and sell them for profit was also featured.

                Obviously, my reminders are not telling you anything you don't already know. But it is surprising to encounter the depravity of someone knowing all that, but denying it is terroristic.

              2. What you are describing is slavery in almost every culture around the world. Nothing you described was unique to the US, nor does anything you describe have to do with terrorism.

                You seem to think that the use of the root word "terror" means that any act that causes fear is "terroristic". This is incorrect and ignorant.
                The fact that you think that using language correctly is "depraved" and "terroristic" shows a great deal about the lack of robustness in your argument, and most likely in your thoughts in general. I suggest you seek mental help, because sane people do not treat word usage in that manner.

        2. Agreed. I always try to correct people who claim it wasn't about slavery. Just read what the southern politicians stated when advocating for secession. Slavery was specifically mentioned about 95% of the time.

      2. one that conducts unlawful violence against the civilian populace (outside of war operations)

        The military likes to include that carve-out in the definition, but there's no reason the rest of us have to use their dictionary. Unlawful violence against civilians in wartime can be both terrorism and a war crime.

        1. "Can be", yes, but is not necessarily so. Especially when you get to talking about things like collateral damage or reprisals.

    4. One man's terrorist is another man's freedom fighter. One man's defense is another men's offense.

    5. By taking up arms against the United States, that means you’re terrorists.

      Only if you're making up your own ignorance-based definition for "terrorist".

  6. Adams was defending the soldiers, correct? Their right to go armed might seem different than a civilians...

    1. Try reading the article. In defending the soldiers Adams commented on the rights of the colonists to go armed

      1. Thanks, it's true I didn't read the article, just the OP. It's strange the latter didn't mention this to me, it's a pretty critical fact. Smoochie Boochie!

        1. It is indeed quite strange, since the OP very explicitly "mentione[ed] this" to everyone else.

  7. Adams' case should also go against qualified immunity. If any colonial case was begging for qualified immunity, it would have been the Boston Massacre soldiers. It has always amazed me that Britain would allow its soldiers to be tried for murder, as a kid and still now.

    1. qualified immunity is a civil doctrine, the soldiers were being tried for crimes. qualified immunity does not shield people from crimes

      Brits allowed them to be tried to avoid new riots.

      1. Yes, you are right; but the modern Crown would never allow that today, and the sure-to-follow civil suits would never go anywhere either.

        1. Just like Biden didn't allow the cop who murdered Babbitt to be held accountable, mainly because he was black.

          1. It was clearly lawful use of force, politics side. Check out what Andrew Branca says.

            1. Firing on an unarmed crowd who wasn't advancing toward him? On what planet.

    2. I see four comments by one or more muted idiots, even replying to themselves. Usually only Behar replies to himself much, but he's too funny to mute. I wonder if this comment will generate new muted comments.

      1. "one or more muted idiots"

        Since I only have one mute, I can confirm that its only one idiot. THE idiot one might say.

        1. I have the rev and the queen. If Behar ever gets as predictable, he'd be the next. But so far, he's been too amusing to mute.

          1. Plus once in a while he even makes a good point. THE idiot has never made even one.

  8. "In making his plea to the jury"

    The man was advocating on behalf of criminal defendants. His assertions consequently were roughly as reliable and valuable, in this context, as . . .

    the statements Johnnie Cochran advanced on behalf of The Juice during the O.J. Simpson trial.

    I would have paid Norm McDonald $10,000 to deliver that line.

    1. MacDonald. The man deserved better.

    2. But if it was in fact illegal for the assembly to be armed in public—or even if it were plausible that someone could find that fact alone threatening—that would be a favorable point for Adams's clients. So the fact that he not only didn't make it, and in fact expressly conceded that it was not true, is illustrative about what Adams thought about how his community felt about this sort of thing.

      1. Adams' job was to say whatever he figured might benefit his clients, whether he believed it or not, endorsed it or not, etc.

  9. "Opponents of an individual right to bear arms often seek to engage the debate at a more abstract level that fails sufficiently to grapple with the details of historical events. A particularly egregious example of this is the attempt by some researchers to use a "corpus linguistics" analysis to relitigate Heller and show that the Second Amendment does not protect an individual right to bear arms. These analysts run phrases like "bear arms" through databases containing a large number of Founding-era texts, categorize the hits into various senses, and then tally up the results. There are a whole host of conceptual and practical problems with this sort of analysis, which others have explored in depth."

    The Battle of the Guest-Bloggers.

    I would observe that there is no nut like a gun nut . . . but that would ignore the religious zealots.

    1. Make that Blogger v. Guest Blogger:

      "I agree that corpus linguistics is not the only tool we should use, but it is an important tool that can assist us in figuring out the meaning of a term."

  10. “Founding realities” are not today’s realities.

  11. Surely S.B. 8 has shown that all rights are easily bypassed, so that all these arguments about the constitution, case law, founding principles, etc., are now completely moot?

    Indeed, using the mechanism of S.B. 8, New York could create a $10,000, citizen-enforced bounty against anyone even advocating for gun rights (thus bypassing both the first and second amendments) - and the Supreme Court would apparently refuse to block enforcement.

    1. I know you think you're being clever, but New York implementing such a system would in fact be a massive boon for gun rights.

      1. "I know you think you're being clever" - can you expand on that? I'm literally following recent developments in constitutional law coming out of Texas.

        "New York implementing such a system would in fact be a massive boon for gun rights" - can you expand on that, too?

        Thanks!

        1. Currently, violating New York's incredibly restrictive gun laws is a serious crime. And those laws are enforced by government actors that can use highly the intrusive investigatory methods of the criminal justice system, such as search warrants and custodial arrests. Replacing this with a system where violations are punishable by a civil fine only, and where police officers and public prosecutors can't take enforcement actions, would be a pretty significant liberalization.

          In addition, as NYSRPA's last foray to the Supreme Court illustrates, preemptive second amendment challenges can founder on the issue of standing before a consideration of the merits. On the other hand, getting prospective challengers to actually violate the laws is a pretty big ask in light of the potential penalties if the challenge fails (and criminals tend to be less sympathetic litigants as well, making the challenge more likely to fail in the first place). A system of private enforcement, on the other hand, would make it fairly easy to set up sympathetic and appealing test cases. So if New York actually went down this road, you could predictably expect to see a significant increase in second amendment litigation challenging the substance of its gun regulations.

          Which is why I wouldn't hold my breath.

          1. Thanks!

            And, in parallel, your argument basically is that it should be easy to set up sympathetic and appealing test cases with respect to, for example, S.B. 8.

            So far, that has not been very effective.

            I hope you're right, because the alternative - an end to constitutional rights generally - seems very unappealing.

            If S.B. 8 prevails, I see no reason why states should not simply eliminate rights their prevailing political base (aka moderately extreme partisans) don't like. It wouldn't be so easy to set up sympathetic and appealing cases if S.B. 8 holds, and New York (for example) sets up a law offering a $1 billion bounty - and these bounties could be applied to everything, including bringing cases. (Remember, constitutional prohibitions wouldn't apply.) Politics in each state would be empowered to cater to their extremists in ways they currently cannot, which would shred the notion of a "United States" in short order.

            1. "shred the notion of a “United States” in short order."

              The United States existed, and even thrived, before the incorporation doctrine applied the Bill of Rights to the states.

              Each state has a constitution. They all contain "bills of rights" with various terms. People in the several states can invoke those rights.

              We also have elections.

            2. And, in parallel, your argument basically is that it should be easy to set up sympathetic and appealing test cases with respect to, for example, S.B. 8.

              So far, that has not been very effective.

              What do you mean? A doctor in Texas deliberately performed an abortion that violated the restrictions with the expressly stated purpose of encouraging legal challenges, which followed in short order.

              If S.B. 8 prevails

              What do you mean by "prevails"?

              The unusual enforcement mechanism isn't going to prevent a court from considering whether the restrictions violate the constitution. And if the Supreme Court ultimately decides that they don't, then surely it's that substantive holding that you have a problem with rather than the private right of action?

          2. To continue the thought, S.B. 8 might yet result in relaxing some of the "standing" restrictions on bringing suit against a law on constitutional grounds. Which I think could address some of your current concerns, in New York.

  12. The one thing gun controllers have shown is that they will NEVER stop. Even if the SCOTUS goes against them, they'll keep imposing more restrictions and roadblocks, knowing that the courts can't get them all

  13. The NYSRPA submitted its Reply Brief and to nobody's surprise, the brief was devoid of any legal argument in support of the question presented to the justices to decide, namely that the petitioners' Second Amendment rights were violated when their applications for [unrestricted] concealed carry permits were denied.

    However, the NRA's brief did beg the justices not to look at the concealed carry question they rewrote but instead to reverse the NYSRPA loss without explaining why.

    Pathetic.

    The only way the NYSRPA wins is for five justices to pull a Roe v. Wade out of their asses.

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