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Second Amendment Roundup: Looking for Historical Analogues in All the Wrong Places
California is appealing the injunction against its “Not Unsafe” Handgun Act.
California's Unsafe Handgun Act effectively bans the sale of almost all semiautomatic pistols that were designed beginning in 2007, and all such pistols introduced in 2013 and thereafter. As explained in a previous post, in March, U.S. District Judge Cormac J. Carney of the Central District of California issued a preliminary injunction in Boland v. Bonta against enforcement the law. The Ninth Circuit stayed the injunction pending appeal.
Along with co-counsel Dan Peterson, I filed an amici curiae brief in support of the plaintiffs on behalf of law enforcement and firearms rights groups. I'd like to share our major points. First, some background.
California bans pistols with designs introduced in 2007 and thereafter based on two features that the state requires but that consumers don't want or need. One is a magazine disconnect mechanism that prevents the pistol from being fired without a magazine; that's bad for emergency use in self-defense. The other is a chamber load indicator, a hole, protrusion, or visual indicator allowing one to tell if a round or cartridge is in the chamber; that's a substitute for the basic safety rule always to assume that a firearm is loaded. Almost no manufacturer makes pistols with both features.
California is not appealing the injunction against enforcement of a third required feature, microstamping capability, in which the firing pin leaves a distinctive mark on the primer of a cartridge when fired. It's supposed to help solve crimes, but won't. Required since 2013, the technology just isn't feasible, and no pistols are manufactured with that feature.
Our amici brief makes three major points. First, the law blatantly bans firearms that are in common use by Americans for lawful purposes, which is the test applied by the Supreme Court in Heller to decide that a restriction violates the Second Amendment. Second, the proving laws of only two antebellum states are not valid historical analogues of the kind required by the Court in Bruen. And third, we look to the original public understanding of the Second Amendment when it was adopted in 1791, not when the Fourteenth Amendment was ratified in 1868.
First. As the Heller Court held, "the sorts of weapons protected [by the Second Amendment] were those 'in common use at the time.'" It suffices that "the American people have considered the handgun to be the quintessential self-defense weapon," and because "handguns are the most popular weapon chosen by Americans for self-defense in the home," they cannot be banned.
Notice who gets to choose which arms may be acquired for self-defense – the American people, not a state. And notice that "the handgun" generically is a protected arm, not a subset of handguns with features not "chosen by Americans," such as the California law requires.
The Supreme Court has told us twice since then that handguns are in common use. Concurring in Caetano v. Massachusetts, Justice Alito identified "the weapons most commonly used today for self-defense, namely, revolvers and semiautomatic pistols." And the Court observed in Bruen: "Nor does any party dispute that handguns are weapons 'in common use' today for self-defense."
That should end the matter. In order to uphold the preliminary injunction, the Ninth Circuit need look no further than the reality that California bans most handguns of 2007+ vintage and all handguns of 2013+ vintage, that these handguns are in common use nationwide, and thus the restriction violates the Second Amendment.
Second. Although Heller's common-use test governs, California nevertheless argues that two early laws on the proof testing of firearm barrels provide a historical analogue to support its current ban. An 1805 Massachusetts law required that barrels for muskets and pistols (but not rifles) made in-state be "proved" or tested to ensure that they would safely fire a minimum distance. Maine passed a similar law in 1821. A violator of those laws would incur a civil monetary fine, but no jail time. The purpose was to ensure that purchasers, particularly militiamen, had access to safe, reliable firearms.
Per Bruen, in considering historical analogues, one must address the "how and why the regulations burden a law-abiding citizen's right to armed self-defense." The "how" of the proving laws was to test fire barrels to ensure that they did not burst and they would shoot a ball (bullet) a minimum distance. They did not require additional features mandated by the state but not desired by consumers. They did not apply to arms imported from other states. There was no criminal penalty. The "why" was to ensure what every purchaser demands in a firearm – that it will safely fire a reasonable distance. Proofing firearms enhanced the ability of consumers to use them in self-defense.
By contrast, the "how" of the California law is to ban most models of pistols from the marketplace, depriving consumers of those they demand as best for self-defense, and to mandate features that do nothing to enhance self-defense. A person who manufactures, imports, or sells an "unsafe handgun" is subject to imprisonment for one year.
The "why" of the California law is to substitute the state's version of a "not unsafe" handgun with what the consumers actually want and, regarding microstamping, the unrealistic goal of solving crimes. And the "why" is not to ensure safe firearms for the militia – the law does not apply to the sale of handguns to "the military or naval forces of this state" or members thereof, not to mention law enforcement. They can buy all the "unsafe" handguns they wish.
Per Bruen, the state has the burden to "identify a well-established and representative historical analogue," i.e., regulation, to support a modern restriction. But in addition to the proving laws not being historical analogues, Massachusetts and Maine were outliers, constituting only 2 out of 24 states in 1820-21 and totaling only 8.5% of the U.S. population.
California also cites to policies adopted in 1775 that required firearms being purchased for the colonies during the American Revolution to be tested. These were nothing more than contractual provisions with no applicability to private transactions. Presumably anyone, whether a colony or an individual, would require firearms they were purchasing to be proven as safe before paying for them. No mandate there.
Third. California and an amicus brief by Everytown for Gun Safety look to 1868 (the year of ratification of the Fourteenth Amendment) and thereafter, rather than 1791 (the year the Second Amendment was ratified), as the proper period for examining historical analogues. We have refuted this argument previously, and it is soundly put to rest in a comprehensive law review article by Mark W. Smith.
Wishing to cite as analogues restrictions that were enacted around 1868 and for the rest of the nineteenth century (and even beyond), Everytown is filing the same amicus brief in cases around the country. The argument is as baseless as is the part of its name touting "Gun Safety" (I'm still looking for where they teach gun safety classes).
As Justice Thomas wrote in Bruen, "individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government," and "the scope of the protection applicable to the Federal Government and States is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791." He mentioned an "ongoing scholarly debate" on whether courts should rely on the prevailing understanding in 1868, but in no way endorsed that position.
Attempting to fix the meaning of, say, the Fourth Amendment as applied to the states according to what people thought in 1868, but leaving its meaning as applied to the federal government in the 1791 world view, would create an earthquake in constitutional law as we know it. Everything we've learned about the First Amendment and the rest of the incorporated provisions in the Bill of Rights would descend into chaos.
That's just not going to happen. Well over two centuries of Supreme Court jurisprudence on the Bill of Rights and over a century of its incorporation jurisprudence would have to be reevaluated and much of it overturned. As our brief shows, in all cases in which the Court has looked to history to determine the meaning of a provision of the Bill of Rights, it has focused exclusively or primarily to the Founding period, and never primarily on 1868.
It is true that a handful of courts of appeals have erroneously alluded to 1868 being the decisive year, but not in the context of a dispositive ruling. The only post-Bruen decision to do so is NRA v. Bondi (11th Cir. 2023), which upheld Florida's ban on the sale of firearms to persons aged 18-20 on the basis of similar bans dating mostly to the 1880s. The court failed to mention the effect of its decision on, for example, the First or Fourth Amendments (since those would have be treated the same as the Second Amendment), or how its newly-minted theory might turn countless Bill of Rights precedents upside down. After judgment, a judge of the court withheld issuance of the mandate, and a petition for rehearing en banc was filed in the case. It seems likely to be granted.
Keep your fingers crossed on whether the Ninth Circuit will sustain or will stay the preliminary injunction in Boland. It is, well, the Ninth Circuit.
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In 1791 to “bear arms” meant to serve in the militia. It did not mean literally carrying a musket around.
Ok, now back to Prof. Holbrook’s history lesson.
Your delusions are interesting – got a source for them?
https://firearmslaw.duke.edu/2021/07/legal-corpus-linguistics-and-the-meaning-of-bear-arms/
Baron concluded that the natural use of the phrase was “almost always” in a military sense, while Goldfarb found that nearly 95 percent of all uses of “bear arms” conveyed the idiomatic sense relating serving in the military. Blackman and Philips, examining a smaller sample, found that the “overwhelming majority” of uses of were in the military context. Josh Jones, using somewhat different search and coding parameters, found that the figurative or specialized military sense of “bear arms” was used in 66 percent of relevant uses, the literal carrying sense in 21 percent, including both military and civilian contexts, and the remaining 13 percent were too ambiguous to place in either category.
& yes, that’s our very own Josh Blackman.
And that link confirms that the term was actually used in both senses, and gives reasons to think the literal sense was intended in the 2nd amendment.
Because if 66% of the time it was used in the figurative military sense, and 21% in the literal sense of a person carrying a weapon at that moment inside or outside of military service, then that is proof that the 2nd Amendment use is in regards to people being able to literally carry a gun outside of military service! (And that is the search parameters most favorable to gun rights supporters.)
Because in the state amendments where they intended to only mean in a military sense, they specified that. As detailed in that link.
The 2nd amendment was modeled after the state amendments that applied to private “bearing”, not the ones restricted to “bearing” in military service.
Bzzzzt. The 2nd Amendment also specifies a military context via the militia clause.
You’re grasping at straws that don’t exist. Egregiously Wrong!
The funny thing is that except under certain circumstances I wasn’t allowed to carry a weapon when I was in the military.
Jason – you are correct that approximately 2/3 of the historical record references the right to form groups for common defence and around 1/3 of the historical written record refers to the right to keep and bear arms for self defence (2/3 – 1/3 are approximate ) .
What is ignored in your argument is that there is zero language in 2a that would limit the right to keep and bear arms to only when serving in the militia
What is also ignored in your argument is that there is zero written or oral historical record that would limit the right to only when serving in the militia.
Randal – tell us what verb, adjective, adverb, phrase states that the right is limited to serving in a militia
Try not to torture the english language with your response
“militia”
care to explain how word militia is conveys a limit
hint – militia is a noun
That’s just mindless echoing of talking points, Randal. It clearly guarantees the right to the People, not to the militia.
And it is actually quite important to the militia-centric purpose of the 2nd amendment that this be so.
They guaranteed the right, so that there would be an armed populace from which a militia could be expediently raised. And that this would be so even if the government didn’t WANT it to be possible to raise a militia!
You don’t put things in a bill of rights to facilitate what the government wants to do right, you do it to obstruct what the government might want to do wrong, after all. And maybe the people running the government in the future would want to abolish the militia for the very reasons the founders thought it vital to have one: Because it was safer for the people’s liberty than a standing army.
If the right had only been guaranteed to militia members, the moment you formally abolished the militia, or reduced it to a select force indistinguishable from a standing army, the 2nd amendment would have ceased to accomplish anything.
You claimed there was “zero language” that would limit the right to the militia context. There’s obviously not “zero language,” there’s a whole clause about that.
You want to give zero weight to that clause. My claim is not that the militia clause is syntactically controlling (as I mentioned elsewhere).
This discussion is about the meaning of “bear arms,” which as we now know was “almost always” used in a military sense… nearly 95 percent of all uses of “bear arms” conveyed the idiomatic sense relating serving in the military.
In that sense, “bear arms” is also language that potentially — in fact, quite likely — limits the second amendment to a military setting.
So if you’re trying to figure out whether “bear arms” has the 95% meaning of militarily, or the 5% meaning of casually, it beggars belief that you would just completely ignore the militia reference that’s right there in the prefatory clause of very same sentence!
(Brett, I don’t think the right is given to the militia. It’s an individual right of the People. But the purpose of the individual right is quite clearly militia-related.)
“But the purpose of the individual right is quite clearly militia-related.”
See my comment below. The purpose of guaranteeing the right doesn’t have the implications you seem to think.
It doesn’t limit the right to militia members, because then the 2nd amendment would only protect the militia so long as the government wanted a militia, and the whole point of amendments in a bill of rights is to frustrate governments that want to do the wrong thing. In this case, abolish the militia system.
Brett Bellmore 6 mins ago Flag Comment Mute User “It doesn’t limit the right to militia members, because then the 2nd amendment would only protect the militia so long as the government wanted a militia, and the whole point of amendments in a bill of rights is to frustrate governments that want to do the wrong thing. In this case, abolish the militia system.”
do the control advocates understand the conflict in their argument
Brett – your response points to the illogic of the limitation to only when serving in the militia
The argument is that 2a gives the people the right to keep and bear arms only when the government lets you keep and bear arms. Its illogical that the BoR converts a right to a priviledge.
Nobody thinks the second amendment applies only to “militia members,” whatever that even means. Certainly nobody here is making that argument. It’s just more strawmen.
Randal 14 mins ago
“Nobody thinks the second amendment applies only to “militia members,” whatever that even means. Certainly nobody here is making that argument. It’s just more strawmen.”
yet that is the argument that you and the control advocates are making
I think I know what argument I’m making. And captcrisis, who kicked this off, also said “all able-bodied males,” so he’s obviously not making it either. No one is making it.
A well regulated Militia, being necessary to the security of a free State, the right of the people to be a militia shall not be infringed?
Yeah, no
What did “keep arms” mean, Professor?
Militias were the means of guaranteeing the “security of a free state”. Militiamen had to have their muskets ready. In case they were needed in militia service.
What I’m saying is not controversial, among real historians.
How can you tell if a historian is real? He agrees with captcrisis.
mulched — Or, if you know the canons which guide practice of academic history, you can test whether a would-be historian follows them or not. That’s how you know Bruen’s alleged history and tradition analysis is in fact nothing of the kind.
Some folks read history. They discover that is easy to do. That does not equip them in the slightest to research and write history. They typically do not notice that.
To research and write history is a demanding professional activity. It requires mastery of intellectual challenges which occur in no other kind of reasoning. Folks untrained in the practice of historical methods do not even suspect that is so.
The would-be historian begins without even an inkling that such challenges exist, let alone any insight into what those challenges are specifically, or how to manage them without blundering into mistaken interpretations about the past. There is nothing intuitive about navigating such unexplored intellectual terrain. Quite the contrary. When you attempt it, your intuition becomes your adversary.
What you take for reason and analytical capacity, turns out in context of historical analysis to be so rooted in present experience that reliance on accustomed thinking which works in every kind of present endeavor must instead be set aside. The hazard is that a present you understand intuitively will contaminate a past which you know not at all.
What you take for reason and analysis is all but entirely a product of the present. For any interestingly distant past, such accustomed-for-you methods are capable to deliver only confusion.
People in the past did not think at all like we do now. The farther into the past you dwell, the more prevalent will become the intellectual contrasts with the present. When you encounter such stumbling blocks, they do not typically announce themselves. You may think something you read in a historical record means this; the person who wrote the record would be astonished that you think so, because your thought depended (unbeknownst to you) on premises that the long-ago author never heard of. Your familiar and habitual premises were not even available as speculations to the author from the past. The source for almost every premise you relied upon unconsciously lay in that author’s unknowable future. Thus, your analysis of what you read from the historical record can only be accurate to the extent it contains nothing from the present in it.
That means you cannot even begin to discern accurate inferences about the past until you accomplish an imposing task of forgetfulness. You must forget everything you know which relies on occurrences and insights which happened after the era under study, but before the present. That, of course, requires at all times during your study that you stay mindful of which are which—which of the things you know are things your object of study could not know?
Do you think you know how to do that? For which places and times during history do you possess such necessarily detailed insight?
Whatever your subjects of study could not know, because experience of such knowledge lay in their unfathomable future, you are not permitted to remember while you study them, or reference while you write about them. How sensitively do you think your intuition is tuned to sort accurately a timeline so detailed and demanding? Do you think Bruen reads as if it were written by such a historically insightful author? If so, what do you think you see as evidence to prove it?
Thanks. You exhibit a level of self-awareness and thoughtfulness that does not appear to exist on the gun-rights side.
[cue the responses that prove my point]
So your claim is that in 1791, “keep arms” meant serving in a militia? That seems a little unlikely. But if you think the second amendment protects citizens’ right to access military-grade weaponry so that they can form their own paramilitary organizations, I’m down.
I read his claim to be that in 1791, “keep arms” meant to possess a firearm… in preparation for militia service.
Glad you agree! What that means it doesn’t cover is armed self-defense, making both Bruen and Heller Egregiously Wrong. Militia service doesn’t require you to keep your gun loaded next to your baby’s crib (Heller) nor to carry it all around town whenever you want (Bruen).
How do you think they managed to possess said firearm in a manner that it would be available when needed, if not carrying it or otherwise transporting it on or near their person?
“Militia emergency!”
“Ok, hold on. Let me just run back home and meet back here in a fortnight. If you’re already dead by then, well, sorry I’m not allowed to carry my firearms around willy-nilly you know.”
The idea that every able-bodied male could be expected to always lug a musket around whenever in public, is nuts.
captcrisis 14 hours ago
Flag Comment Mute User
Militias were the means of guaranteeing the “security of a free state”. Militiamen had to have their muskets ready. In case they were needed in militia service.
What I’m saying is not controversial, among real historians.
Point A – Your are correct in your first point.
Point B – At the same time, you ignore the complete historical record which Halbrook and other historians have repetitively demonstrated and documented.
Point C – There is absolutely nothing in 2A or the historical record that points to a limitation to only when serving in the militia or serving for the common defence. It is pure historical fiction that the anti gun advocates have created.
Hey, look, a brand new argument nullifying the 2A! So new it’s been rejected by courts, like, a thousand times! Keep flailing at that windmill, Don Quixote!!
Let’s talk about what the phrase “persons, houses, papers, and effects” meant in 1791 as to electronic and digital communication. Effects meant physical property, by the way.
Um… papers? It’s not an accident that computers have “files,” nor that students these days write their “papers” on their MacBooks.
Numbnuts. We know that “militia” never meant “vigilante.”
Sure numbnutz. A digital file is a paper.
And how about all them eeelectronic phone calls and texts and emails?
Are you serious? Papers –> letters –> telegrams –> telephones –> emails –> texts –> your boyfriend’s dick pics. It’s super straightforward.
What I don’t get is where you’re even going with this. Is your point that Heller is wrong from an originalist standpoint (true) but still justified under some sort of living constitutionalist framework where “bear arms” has acquired a new, modern meaning that it didn’t have in 1791?
No, I’m not serious.
I’m taking the ridiculous militia argument and applying it to another amendment. The militia argument is ridiculous and has been repeatedly rejected by the courts, despite your newfound admiration for Blackman.
So… what I said? You think the 2nd Amendment is saved by giving a modern meaning to “bear arms” that would’ve been beyond the state of knowledge in 1791?
I don’t get the comparison.
The question isn’t what “militia” means, it’s what “the People” means, since it is the latter who are guaranteed the right.
No, the question is: what is the nature of that right — to “keep and bear arms”. There should not be any “penumbras and emanations” here.
Since we’ve already established that it’s a right of “the People”, and we have plenty of contemporary sources to demonstrate that it was a right to private ownership and carrying of arms, really the only thing the mention of the militia establishes is the nature of the “arms”: Ones suitable for militia use.
The carrying of arms in a military context, not everywhere all the time.
Nope, already over-determined to be false through multiple historical sources.
… all of which turned out to be Scalia cherry-picking (see above).
This is one of the many problems with the new History & Tradition doctrine… it’s completely susceptible to results-oriented analysis, which is pretty obviously what happened in Heller and Bruen.
Look, I’m not going to fully defend either decision, because I think the majority was running scared from a genuinely originalist interpretation, which would involve a right to civilian ownership of whatever the standard battle rifle of the US army was. A right to “every terrible implement of the soldier”.
Even though that was the situation that prevailed until well past WWII, and the Justices are well aware of that, they’re just not prepared to go there.
But there are too many contemporaneous public statements about the meaning of the 2nd amendment for you to just dismiss them as “cherry picking”.
Brett Bellmore 31 mins ago
Flag Comment Mute User
“But there are too many contemporaneous public statements about the meaning of the 2nd amendment for you to just dismiss them as “cherry picking”.”
As brett correctly notes – there are far too many contemporaneous written historical records that get dismissed by the professional historians
So you think the 4th Amendment only prohibits the gunny from searching the foot lockers of militiamen without a good reason?
Haha. If you apply the militia standard to the second that’s where you end up on the 4th.
Why would you apply the militia standard to the 4th? Does it also scope itself to the “well-regulated militia” context and I just missed it?
Maybe if we looked at the original Bill of Rights we would discover that they forgot to close some HTML tag and the well-regulated militia applies to every amendment since.
In 1791 to “bear arms” meant to keep ones forearms natural and hairy. It did not mean literally serving in a militia.
Ok, now back to Prof. Captcrisis’ history lesson.
Heller decided differently. Are you the Court of Appeals above the Supreme Court?
Heller is Egregiously Wrong, which means, as Alito says, we don’t have to pay it any mind.
How was Heller egregiously wrong?
“Egregiously wrong” = Doesn’t say what I really, really want it to say because guns are icky.
Next step; “I’m going to hold my breath until I turn blue”
Heller, McDonald and Bruen are all wrong!!! Because he says so.
It’s Egregiously Wrong because it completely jettisoned the militia clause… it even disavowed the right to keep militia-appropriate firearms.
Heller opened the door to an assault weapons ban. Without Heller (that is, under Miller) such a ban would be obviously unconstitutional for interfering with militia preparedness.
No, I’ll agree: Heller is wrong, and for the reason you identified. It’s just that the only alternative on offer, Stevens’ dissent, was MORE wrong.
Now, it’s true that, under Miller, the AWB was clearly unconstitutional. But it’s also true that the lower courts had played a game of Telephone with Miller, standing it on its head, and the Court had done nothing to stop that until Heller. They literally went 68 years refusing certiori to every last case where one of the parties raised the 2nd amendment as an issue!
So the 2nd amendment wasn’t doing anybody any good at all until Heller partially revived it.
Then McDonald incorporated it again for the first time since the Slaugherhouse cases, and Bruen restored a bit more of it.
As long as the current composition of the Court survives, I think the process will continue, even if by baby steps.
If the Democrats ever get a majority on the Court while still being obsessed with gun control, they won’t need “an opening” to overturn Heller. They’ll just do it, and not care a bit if the rationale makes any sense.
I am not actually very optimistic about the current conservative majority on the Court enduring very long.
First, if at any time the Democrats get a solid majority in Congress and the White House, they WILL pack the Court. The only reason they didn’t already was that their House majority was razor thin, and their Senate just a VP tiebreaker. They didn’t have the votes, so they didn’t try. If they’d had the votes, they would have done it in a heartbeat.
And, second, the left’s dominance of elite legal institutions has grown so complete in the last decade that the supply of suitable judicial candidates is going to grow very scanty in coming years, first for lower level appointments, and later for the Court. In about 10 years, it’s going to be tough to fill lower level vacancies with conservatives, which will lead to a shortage of seasoned conservative judges to feed into Court vacancies a decade further down the line.
All the current conservative Justices graduated from their institutions before the left started its purge back in the late 90’s. They won’t be easy to replace as they die off.
Heller did not jettison the militia clause – Its still there and valid
What Heller did was jettison the fiction that 2A was limited to serving in the militia
Well, no, Heller did jettison it, in the sense that Miller recognized that it was a right to military arms, and Heller transformed that into a right to arms that didn’t scare the government.
It’s that ‘in common use’; Current patterns of ownership are warped by the nearly 70 years during which the Court DIDN’T enforce the 2nd amendment. They in effect grandfathered in the results of a lot of gun control, with that standard.
Brett – my point was that the militia clause is still valid in that the right to form militias for the common defence still exists along with the right to keep and bear arms for self defense still exists in 2a.
The two competing arguments are that 2a provides either the collective right or the individual right and those two rights are mutually exclusive. The most natural reading and based on the historical record is that 2a protects both rights.
“being necessary to the security of a free State” explains the purpose for the right of “A well regulated militia”. It does not describe the purpose of the separate individual right. Nor does the clause provide a limit to the individual right.
The purpose of the amendment is clearly, as it says, to support militia readiness.
HOWEVER, it does so, not directly by arming the militia, but by guaranteeing a general right to be appropriately armed, so that a militia can be raised from the general population.
The analogy I like to make is that, if you thought the government might fall into the control of arsonists, you might think that a volunteer fire department was safer than a professional one, and guarantee a general right to own and practice with firefighting equipment.
So, the 2nd amendment only directly guarantees, as the Miller Court held, the right to weapons suitable for militia use, military arms.
But the right to self defense, or to hunt, isn’t a 2nd amendment right, they’d be 9th amendment rights.
And, having guaranteed the right of the general population to own and train with military arms, you might ask: How can denying them any lesser arms satisfy even rational basis scrutiny? It can’t.
So the 2nd amendment indirectly guarantees access to weapons suitable for self defense and sport, by guaranteeing even more powerful weapons, and interacting with those 9th amendment rights.
The huge volume of contemporaneous written record during the time preceding the ratification of the BoR is the basis of my comment.
lots of commentary discussing the right to keep and bear arms for the common defence and the right to keep and bear arms for self defence.
A well regulated militia , the right of the people to keep and bear arms, shall not be infringed. Including the clause ‘Necessary for a free state” doesnt create a limitation to only when serving in the militia, unless of course you do a serious torturing of the colonial era english language.
Belief that the right to keep and bear arms was limited to only when serving in the militia is even more idiotic when considering the british tried to confiscate arms prior to the revolutionary war including the well known major campaign to confiscate all arms in boston in 1774.
“An Act by Parliament in 1774 put a ban on firearms and gunpowder. In 1774 and 1775 the British Regulars under orders from Governor Thomas Gage actively tried to confiscate the colonists’ firearms, particularly their gunpowder.”
What people forget about the Indians is that about half were allied with the French and would often attack without warning. And there were wild animals as well — yes, you did keep your gun handy.
Massachusetts law actually mandated that.
you said “Literally”, what a Mo-roon.
Out sick the day they taught “Shall not be infringed”??
“Literally” Frank
I suppose women bearing children was a term of art for breeding for the militia too.
The word “bear” has 15 quite different definitions (in the dictionary I looked at). Not just one. And they all depend on context.
‘That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law’. English Bill of Rights (1689).
Got a theory as to a strong difference in meaning between ‘have’ and ‘bear’?
meant to serve in the militia.
Which at the time meant every able bodied man. Today that of course is expanded to every able bodied person.
The militia is you.
If you believe health care is a right, and the govt pays, then the govt would be required to provided arms and ammunition to all adults.
Uh huh, everyone agrees with that, including (I take it) captcrisis who later refers to “every able-bodied male.”
With that in mind…
In other words, there’s no reason you need to have shall-issue public-carry in order to keep and bear arms for (potential) militia reasons.
Even now 3/4 of the states allow open carry without a permit.
“Maine passed a similar law in 1821″</i.
Remember that Maine became a state in 1820 as part of the Missouri Compromise, it had been 3(?) counties of Massachusetts before, and when the legislature first met in 1821, they largely copied Massachusetts law because it was what they had been using since the 1600s and were familiar with.
Hence they were just keeping the 1805 law they already had.
Worse, the 1805 Massachusetts law applied only to barrels not made by or for the national government. The 1810 census of manufacturers shows no gun makers in Massachusetts. The 1820 census shows only one: the government armory at Springfield. The law did nothing. Saul Cornell made a full of himself on cross-examination by claiming Massachusetts was the center of gun making in America when the 1805 law took effect. I went right after him and showed that as usual he knew nothing about his supposed expertise. California’s attorney had no questions for me on cross.
Ummm — you want to be careful about Maine records prior to statehood because some got filed under Massachusetts, some under Maine, and some got lost.
There WERE gunmakers in Maine — see: https://www.fishermensvoice.com/archives/201209MadeInMaine.html
Some of them may have been listed as Blacksmiths or other trades, there were a lot of cottage industries and the barrel test law probably made sense because of this — for purposes of trade.
The armory in Springfield was there in the 1780s because Daniel Shays nearly seized it in Shay’s Rebellion — I don’t know when actual gun making started but there was a *lot* of it between Springfield & Hartford (CT) because of the water power of the Connecticut River.
“The 1810 census of manufacturers shows no gun makers in Massachusetts. The 1820 census shows only one: the government armory at Springfield”
Then the 1810 one is probably an indictment on how poor that “census of manufacturers” was. The Springfield armory started mass producing muskets in 1795.
Which reminded me, the Waters brothers and their sons (A. Waters & co, later A.H Waters co) in Sutton MA were manufacturing muskets continuously from 1775 to 1855. By the early 1800s they were producing over a thousand a year just on government contracts. When I looked them up in “American Arms Makers” by Merwyn Carey, there were a bunch more musket makers in MA just under the Ws.
So Cramer is far less knowledgeable than he thinks he is, and more simply lucky that Cornell is so terribly incompetent on the subject.
Kopel, Halbrooks, Cramer, and countless internet gun nuts like them have convinced me. Their arguments are unanswerable. All of them are monomaniacs, literally driven beyond rational discourse, and provably impervious to appeals on behalf of moral responsibility.
If gun nuts continue, as they seem to intend, to try to exploit minoritarian quirks in American constitutionalism, and force every state in the nation to emulate their own heedless gun regime agendas, that is a breaking point for me.
I suggest it is time for at least the Northeast, and the Pacific Coast, and probably other regions as well, to consider seriously the advantages of simply walking away, to form a new nation organized on principles better suited to their own notions of civilized governance. Just say goodbye to the Kopels, the Halbrooks, the NRA, and the corrupt rightwing Supreme Court majority.
Is it worth it to live in fear of random gun violence, when a simple choice to turn away from the thrall of violence-as-an-ideal is not only available, but would prove unstoppable as a practical matter? Advantages of governance and economy would empower a breakaway effort. They might assure its success.
Readers are invited to consider the foregoing just as they please, either as a serious proposal, or as a rhetorical plea for more compromise in national gun governance, and other vexing minoritarian insistences. I encourage especially careful attention to imagining the particulars which might attend taking a breakaway proposal seriously.
What political tactics would best suit an attempt to bring such a separation about? What would be the economic consequences for both breakaway states, and for others left behind? How realistic would it be to fear some kind of repeat of the epic violence of the Civil War? Why, after all, would long-suffering advocates of the governance style of the old confederacy resort to violence if they were unexpectedly handed precisely the victory their forebears sought so long ago?
What would be the wise and humane policies necessary to accommodate not only states which thought better of being left behind, but also their minority communities who might prefer to flee to live instead within breakaway regions?
Other than gun policy changes, what other newly-available political choices and governance freedoms might breakaway states enable for themselves? Consider freedom to legislate in accord with actual majority preferences on issues like abortion, secular government, voting rights, corporate regulation, progressive taxation, national healthcare, reduced military budgets, environmental policies, education policies, civil rights for all, and the size and scope of government.
I wonder if gun nuts have given thought to how attractive they are making it for others to consider simply giving gun nuts the powers and style of government they want, to administer freely right where they are.
Fear of random gun violence? If you are not a black gang member, you are at very little risk. About half of all murders are black-on-black. Even these are narrowly focused. Big cities find that not only do 80 percent of murder suspects have long criminal histories but so do 89 percent of victims.
It is typical in most years for most counties in America to have no murders. I seldom carry a gun here in Idaho. The risk is near zero. Outside of a few Blue inner cities, you are about as safe as a European.
The only real risk is wandering into a gun-free zone when a mass murderer shows up. This is quite rare in Idaho. Since 2006, we have had two mass murders: one a father who murdered his family with a gun, and the recent knife mass murder at the University of Idaho.
And that was a knife….
Well it was an “Assault Knife” and can you believe knives don’t make any noise when they’re used?!?!?!? It’s literally like every knife comes with a “Silencer”!!!!!!! How do we let these Killing machines be sold!!!!!!!!!?????? and without a “Permit”, “Background Check” or “Training”!!!!!!!!!!!!!!!
Frank “The Knife” Drackman
Cramer — Either you are full of beans about Idaho, or Idaho has changed a lot since I lived there in the 70s and 80s.
As an avid hunter I spent a lot of time in the field, during Idaho’s many-months-long hunting seasons. I got shot at 4 times while hunting, and once while sighting in on an informal gun range. That last incident was “just” a ricochet which came down-range while I was checking targets with two other companions.
Two of those other incidents I am sure happened because irresponsible folks with guns had no idea they were shooting more-or-less at me. For instance, in one case I was concealed in a thicket at the base of a cliff, waiting for game. Some idiot up the cliff began prospecting the thicket, by shooting into it repeatedly, working systematically from one end to the other.
Two of those shooting incidents could only have been done with me in sight. In one of them, I was apparently missed intentionally, when someone I could not see fired a fully automatic weapon down-slope into the path in front of me, perhaps to deter me from continuing on that path. I presumed I might have been inadvertently approaching a back-country drug operation, and turned back.
The other plain sight incident was harder to interpret. It was a shot which went by close to me on my left, while I was walking through open sagebrush country in fading light. First I heard a zip in the air, and had just a split second to wonder, “Was that a bullet?” before I heard the bang. The shot could only have come from a bushy area, probably 500 to 600 yards away across the low sagebrush in front of me. Perhaps I was mistaken for game. I fired my own rifle in reply, to cure any ambiguity, and never found any sign of whoever fired at me.
Idaho then had at least as many feckless people per capita as any other state, but they were more likely to be armed than in most places. I should mention also contra your remark about thugs, I on one occasion had to consider carefully the advice of my local police chief that he had information that I was under threat, and ought to consider going armed at all times. That might have had something to do with my work at a newspaper which had made itself unpopular with real estate developers. Or it might have had to do with almost anything. With so many armed cranks around, who really knows?
Of course I also enjoyed the freedom of Idaho’s gun culture. There were places in the remoter areas of the state where the most reliable way to assure a quick ride while hitch-hiking was to display a rifle prominently by your left side, while you stuck your thumb out on the right. The drivers were always curious about what game you might have seen, or already shot.
When will the movie “Stephan Lanthrop” be coming out?
Majority preferences on abortion. Are you suggesting that Roe v. Wade interfered with democratic decision making? Quite the opposite: it prevented states from making their own laws.
Go ahead and leave. A whole country governed on the Seattle/Portland/California model. Enjoy that.
The San Andreas fault will take of that eventually.
Portland and seattle are at risk from catastrophic earthquake/tsunami, however, it would not involve the San Andreas fault. You’ve seen too many bond movies, Zorin
No, Mr. Estragon, I expect you to DIE!!!! MWAHAHAHAHAHAH
That would be auric goldfinger
Democrats controlled both houses of Congress and the White House for a number of years and the millennium never came
I hate to tell you this, but much of the Northeast would like to secede FROM the Northeast. All of the rural parts of NY, MA, VT, NH, & ME would love to be free of the idiots running things from the cities, we haven’t gotten to the point where people in Eastern Oregon have, but we’d love to be free of the leftist loons.
Not just rural parts. My In-laws part of Long Goy-land has more MAGA signs than almost any neighborhood in Atlanta.
That’s just further argument that we don’t even have that many red states, just states where the more socially conservative rural population has an edge, either in statewide elections due to an actual majority, or through gerrymandering in the state legislature, or both.
It’d be really interesting to see how well a national divorce between the urban and rural populations of the U.S. would work out for the rural population. It would be bad for both, of course, but I certainly expect it would make the red side even worse off than the blue side would be.
On the other hand, it might be good for the social conservatives in rural areas to finally see how they’ve been screwed over by Republicans that have gotten them to vote against their own economic self interest for so long based mainly on culture war issues.
On the other hand, it might be good for blacks in urban areas to finally see how they’ve been screwed over by Democrats that have gotten them to vote against their own economic self interest for so long based mainly on culture war issues.
Some people don’t think that getting free shit is in their economic self interest.
Indeed. Some people think that freedom / liberty is better for them than getting “free shit” from the government. Crazy, right Jason?
I think what Jason is saying is, let’s take away their free shit and then we’ll see. (Farm subsidies, social security, medicare, medicaid, telecom subsidies, infrastructure, healthcare subsidies… all of which are funded by the rich urbanites.)
This lie again?
Where do you think the subsidies come from? God’s butt?
JasonT20 11 hours ago
“On the other hand, it might be good for the social conservatives in rural areas to finally see how they’ve been screwed over by Republicans that have gotten them to vote against their own economic self interest for so long based mainly on culture war issues.”
jason would that be like the black population realizing that the democrat/progressive party wants to keep them on the plantation
“people in Eastern Oregon“
Oh my lord, not this idiocy again. You should have seen the pathetic ads they were running a few months back.
Read the Dobbs decision — it GIVES states the right to have their own policies on abortion.
Until a Republican majority in Congress and a Republican president want to restrict abortion nationally, then we’ll see what the conservatives on SCOTUS have to say about states’ rights on regulating abortion.
Why do you call the GOP-establishment Catholic shills on your highest court ‘conservatives’? To be sure, they’re conservative about the gays and abortion (and perhaps companies’ rights too), but not really anything else the American conservative base deems to be such.
Once again, I commend your ability to live down to what the far right nutcases around here imagine liberals are like.
Its not just “Gun Nuts” who bought 500,000,000 + guns (OK, I’ve got about 50, so maybe a few “Gun Nuts”) but with AlGores Internets who would buy at at Gun Store except for an inexperienced shooter? gotta deal with the obnoxious clerks (somehow every gun store employee automatically becomes John Rambo) background checks, mark ups, when there’s a whole ammo-locker of on-line buy/trade sites. https://www.gunbroker.com/ etc
Frank
All of them are monomaniacs, literally driven beyond rational discourse, and provably impervious to appeals on behalf of moral responsibility.
Why does this describe you so perfectly SL?
Putin, Xi, Kim Young One: “Oh please please please please please…!”
“Please split America, so half of it will do exactly what we do, and what the Tyrant King George III did! Oh, and the British in India. Boy, I liked that RRR movie! No guns for Indians!”
Interesting. If you attempt to secede, will the North have the right to conquer you and impose puppet legislators as happened during and after your (last) civil war?
The idea surely has its merits, though probably not ones you’ve considered. For one thing, the world would be a safer place with a weaker, decadent, separate ‘blue state’ country, one that wouldn’t be able to perpetuate and uphold America’s legal-cultural imperialism using military or economic forms of domination anymore. For another, your population will just implode due to a failure to meet replacement rate and a lack of southern illegals to just waltz into your country.
A bunch of new European states with a disappeared US. That’ll stop the miltary march of tyranny! NATO without the US is still powerful NATO!
Tbh, it’s the left standing up for this, while the tyrant fans call it a territorial dispute, much like Hitler and the Sudetenland, just let him have it, for peace!
You need weight if you wanna throw weight around. Also, distrust politicians who want a new government layer with, golly, themselves inhabiting the vast new levers of power.
???
NATO will be finished, the USA will stop pestering the Russians by meddling in Ukraine (and in the Baltic states), and most people aren’t really worried about Russia conquering Europe/trying to restore its old imperial boundaries. And even if Russia does take parts of Eastern Europe, the rest of us are kind of tired of mass Eastern European immigration into Western Europe.
Without an American-backed EU, perhaps European countries can also begin to stop the continent’s colonization by the third world. It’d also be liberated from Americanization and low-grade cultural output.
Stephen Lathrop 13 hours ago (edited) Flag Comment Mute User Kopel, Halbrooks, Cramer, and countless internet gun nuts like them have convinced me. Their arguments are unanswerable. All of them are monomaniacs, literally driven beyond rational discourse, and provably impervious to appeals on behalf of moral responsibility”
Lathrop – serious question for the historical expert Care to tell us what verb, adjective, adverb, phrase in 2A limits the right to only when serving in the militia? Care to provide us with any documentation where the right to keep and bear arms was limited to only when serving in the milita.
If you are really a historical expert and rely on professional historians, you could provide us with that exclusive (elusive ) historical documentation.
It seems obvious to me based on all of the arguing about the Militia clause in the 2nd that sentence diagramming is no longer taught in school. If it were it isn’t difficult to see that the clause is dependent, not controlling.
No one thinks it’s controlling. That’s an age-old straw-man. A straw-oldman.
Plenty of people flacking that strawman, though.
There are people pushing that fallacy right in this thread.
Where? I don’t see any.