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Letter from T.J. Mason

Re: "Letters from A.X. Perez, Jim Woosley, Roger Clark, L. Neil Smith, John Taylor, and Neale Osborn", "The Deal" by L.Neil Smith, and "Saying What You Mean" by A.X. Perez

No one doubts that the right to avoid Self-incrimination, "Taking the Fifth," is an individual right that applies in all jurisdictions, and the construction "No person... shall be compelled in any criminal case to be a witness against himself" is directly and obviously parallel to "the right of the people to keep and bear arms shall not be infringed."

The plain reading is that the Second Amendment was intended to be an individual right not subject to either federal or state regulation.

I agree that such is not the construction by which the Court constructed things, but one gets to the same place if one goes through the Fourteenth Amendment.

I note that Wikipedia now (this instant; I don't make promises the page won't be smeared by morning) has an excellent disquisition on the Second Amendment (http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution), which includes the following quote:

"In the second article, it is declared, that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest. The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed. The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both." William Rawle, 1825. Note the final sentence.

Of course, it was not long after this that the Supreme Court came up with Barron v. Baltimore (1833), which held that the Bill of Rights didn't apply to the States or municipalities. I think that virtually all of the Anti-Federalist Framers would have disagreed, and for that matter even Hamilton and Madison held in their writings in the Federalist that the right to bear arms was an individual right. (See disquisition in my book No Loopholes, available on Amazon.)

In other words, I agree with your comment regarding the way the Second Amendment has been interpreted by the Courts, but I agree with ElNeil about the clear wording intended by the Framers.

by T.J. Mason
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Letter from Paul Koning

Re: "Letters from A.X. Perez, Jim Woosley, Roger Clark, L. Neil Smith, John Taylor, and Neale Osborn", "The Deal" by L.Neil Smith, and "Saying What You Mean" by A.X. Perez

On incorporation, and whether it's needed to apply the 2nd amendment to states:

The stated purpose of the 14th amendment was to do exactly that (so said the proposer of that amendment, in debate in Congress).

On the other hand, the words of the 2nd amendment are a general prohibition imposed on all branches of government. And indeed, the Texas Supreme Court recognized that and applied the 2nd amendment against the state, somewhere in the 1830s. (Details are in Halbrook, if memory serves.)

On the third hand, there are plenty of examples where several Constitutional articles aim to protect the same right. Consider that the 2nd amendment is redundant (as far as the Federal government is concerned) because regulation of arms is not among the enumerated powers of Article 1 Section 8. And, in the same way, the 9th and 10th amendments are even more clearly redundant. Even so, it was thought—and subsequent history suggests with good reason—that such redundant emphasis on certain essential rights was a good thing.

Meanwhile, it's interesting to note that the 1st amendment DOES, by its wording, constrain only Congress and not any of the states. So Article 6 Section 2 would seem not to have any effect on the states as far as that amendment is concerned. Very interesting indeed.

Paul Koning
[email protected]

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