2nd amendment

[Yes Im Biop]

Hm. Well i dont belive in "God Given" Anything. But as this country is supposed to be Captlist, we should be able to buy and sell anything (Withen reason) SO i see no reason to ban any kind of gun. Unless they have a history of violent crime or Mental instability. As for weapon attachments such as supressors i dont think they should be banned ether.

[West Gaul]

Because guns are cool.

[Erickan]

http://en.wikipedia.org/wiki/District_of_Columbia_v._Heller

I suggest some reading.

[AETEN II]

Well, Napalms aren't arms, they're just.... uhhhhh, specialized tools for removing plants. Therefore, everyone should be able to carry a flamethrower.

[Erickan]

Well, Napalms aren't arms, they're just.... uhhhhh, specialized tools for removing plants. Therefore, everyone should be able to carry a flamethrower.

[Yes Im Biop]

Well, Napalms aren't arms, they're just.... uhhhhh, specialized tools for removing plants. Therefore, everyone should be able to carry a flamethrower.

Napalm is a Flamable gell made with a Mix of Gasoline and a thickning agent. Flame throwers are the incindary equilivent to Super soakers.

[Grave_n_idle]

Well, Napalms aren't arms, they're just.... uhhhhh, specialized tools for removing plants. Therefore, everyone should be able to carry a flamethrower.

Napalm is a Flamable gell made with a Mix of Gasoline and a thickning agent. Flame throwers are the incindary equilivent to Super soakers.

Trying to work out how that's an answer. Everyone should be allowed to have flamethrowers? Is that the point?

[Serrland]

Well, Napalms aren't arms, they're just.... uhhhhh, specialized tools for removing plants. Therefore, everyone should be able to carry a flamethrower.

Napalm is a Flamable gell made with a Mix of Gasoline and a thickning agent.

But it smells really good in the morning, doesn't it?

[AETEN II]

Napalm is a Flamable gell made with a Mix of Gasoline and a thickning agent. Flame throwers are the incindary equilivent to Super soakers.

Trying to work out how that's an answer. Everyone should be allowed to have flamethrowers? Is that the point?

Yes. As they are not firearms. Plus all forms of robbery would end.

[Raeyh]

Trying to work out how that's an answer. Everyone should be allowed to have flamethrowers? Is that the point?

Yes. As they are not firearms. Plus all forms of robbery would end.

Robbers would just show up armed with flamethrowers.

[Grave_n_idle]

Trying to work out how that's an answer. Everyone should be allowed to have flamethrowers? Is that the point?

Yes. As they are not firearms. Plus all forms of robbery would end.

Weaponised flesh-eating bacteria aren't firearms, either. Not sure that's an argument for why everyone should have access to them.

Not sure that random citizens owning flamethrowers would significantly impact robbery, either.

[AETEN II]

Yes. As they are not firearms. Plus all forms of robbery would end.

Robbers would just show up armed with flamethrowers.

And would burn down everything they would attempt to steal. Plus, Firefighters would be back in business.

[Greed and Death]

The whole Decision in Dc v Heller, explained what Milita meant. Dont like ? Well make sure you have the presidency and the Senate in ~4-8 years when Scaila and Kennedy step down.

Failing an agreement with the Supreme Court's reading of militia is it not a bit hypocritical to read every right as broad as possible including rights that are not enumerated specifically in the Constitution, while reading an enumerated right as narrowly as possible.

I dislike the right side of the court for their tendency to narrowly construe rights, However I dislike the left side of the court for the same reason. Some how if the left thinks the right is unimportant it should be interpreted in the most narrow ineffective way possible.

[Alien Space Bats]

Why do some citizens of the USA believe they have a "God-given right to bear arms" when the actual second amendment was not written in such a way as to condone the carrying of firearms by civilians.

As a liberal who believes that ours is a secular society whose governmental principles flow solely from our Constitution (and from its self-acknowledged foundation of English common law), rather than from some external set of Biblical principles (IOW, while conceding that America has historically been a predominately Christian country, I reject the notion that the U.S. is in any way, shape, or form a "Christian nation" in any legal sense; thus I reject the idea that any our rights, even those that might be deemed "natural", are "God-given"), let me explain why the right to bear arms is absolutely one that individual citizens enjoy.

tl&dr: I'm a so-called "2nd Amendment liberal", so you might have an easier time with my explanation that with the explanations of conservatives.

The second amendment goes as follows:
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.
(from http://www.usconstitution.net/)

The key bit here is the Well regulated Militia. This amendment was made because when it was written, in the 1790s, the USA did not want a standing army, although they lived in a hostile country whereby a standing armed force was necessary. This amendment was a way round the problem, a way to get a properly trained and armed militia to use in times of conflict or defence, in part due to the contribution made by militias, or minutemen in the war of independence.

I think a lot of the confusion comes down to people just quoting the second half of this amendment, nicely ignoring the militia part...

tl;dr basically, the right to carry results from misreading the 2nd amendment of the US constitution, is this purposeful or do people just genuinely not take an interest in a feature that is supposed to be a major part of their history?

Right off the bat, you need to appreciate that the first eight Amendments to the Constitution do not stand alone; to try and interprete them as "self-contained" clauses is to make the same mistake most "States rights" conservatives make - namely, to ignore the effect incorporation has had on the Constitution and the Bill of Rights.

Simply put, prior to the ratification of the 14th Amendment, the Bill of Rights did not apply to the States; this fact is not only clear from the debate within the 1st United States Congress over the adoption of the Bill of Rights, but was established as a matter of law by Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833):

The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.

---

The counsel for the plaintiff in error insists, that the constitution was intended to secure the people of the several states against the undue exercise of power by their respective state governments; as well as against that which might be attempted by their general government.

---

Had the people of the several states, or any of them, required changes in their constitutions; had they required additional safe-guards to liberty from the apprehended encroachments of their particular governments; the remedy was in their own hands, and could have been applied by themselves. A convention could have been assembled by the discontented state, and the required improvements could have been made by itself... Had the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention. Had congress engaged in the extraordinary occupation of improving the constitutions of the several states, by affording the people additional protection from the exercise of power by their own governments, in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.

But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained, that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those unvaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government-not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states. These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.

- Chief Justice John Marshall, Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833)

If that were all there were to the matter, then the only remaining question would be to what extent the Federal government may restrict firearm ownership; the precedent of Barron v. Baltimore would imply that no similar "right to bear arms" exists in the face of State or local regulation, save where the various State Constitutions provide one, or where (as sometimes happened) State Supreme Courts recognized such a right as flowing "naturally" from their States' common law heritage.

But following the War of the Rebellion, the 39th United States Congress - concerned about the prospect that white-dominated State and local governments in the South might deprive their newly-freed African-American residents of their liberties, chose to do precisely what the 1st United States Congress had refused to do some 80 years earlier: It passed and sent along for ratification by the States three new Constituional Amendments, one of which - the 14th - specifically extended the Bill of Rights to the States. The first clause of this Amendment - the so-called Citizenship Clause - unequivocally extended full citizenship to all African-Americans, effectively nullifying that great legal monstrosity that was Dred Scott v. Sandford, 60 U.S. 393 (1857):

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

- Amendment XIV, Section 1, Clause 1

Having thus extended both Federal and State citizenship to all of those "born or naturalized" in the United States, "and subject to the jurisdiction thereof", the 39th Congress went on to establish two distinct vehicles for the promulgation of their rights, irrespective of the wishes of whatever State or municipality in which they might find themselves living as residents. The first was the so-called Privileges or Immunities Clause:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;...

- Amendment XIV, Section 1, Clause 2

The second was the Due Process Clause:

... nor shall any State deprive any person of life, liberty, or property, without due process of law;...

- Amendment XIV, Section 1, Clause 2

Finally, completing Amendment XIV, Section 1, the 39th United States Congress attempted to make certain that these protections would be applied to all citizens universally through the Equal Protection Clause:

... nor deny to any person within its jurisdiction the equal protection of the laws.

- Amendment XIV, Section 1, Clause 2

Here, then, is the principal problem with trying to read the 2nd Amendment either in terms of the cultural context of the late 18th Century, or from the flawed perspective of the original intent of the 1st United States Congress in enacting it: The fact that the 39th Congress subsequently came along and altered the Constitution in such a way as to fundamentally change the nature of the United States itself means that, even if the intent of the 1st United States Congress and the first 13 States were absolutely and unarguably what you say it is (IOW, that each State should have a militia, and that the States and the States alone [or the States and Congress together, depending on how you read certain other clauses] should be free to say who can be in that Militia, what arms it can have, and how it must comport itself), the subsequent alteration of the Constitution by the 39th Congress and the States during Reconstruction effectively renders that earlier intent (and quite possible the very language underlying that intent) null and void.

Why? Because amendments to a law always override the original law; that's what they're supposed to do. Whatever the 2nd Amendment's original purpose, it was changed with Reconstruction, and that change has transformed what was (or may have) once been a communal and conditional right to an individual and unconditional one.

tl&dr: If you're trying to understand the 2nd Amendment by looking at what it meant to Congress and America in 1789, when it was passed, then you're looking in the wrong place. You need to focus on what it meant as applied through the 14th Amendment, in 1868, in the context and against the backdrop of Reconstruction - where its meaning and significance are completely different.

<more to come>

[Yes Im Biop]

Napalm is a Flamable gell made with a Mix of Gasoline and a thickning agent. Flame throwers are the incindary equilivent to Super soakers.

Trying to work out how that's an answer. Everyone should be allowed to have flamethrowers? Is that the point?

Well i dont see why not. Look at my above post. If you can Afford it (Or in this case make it) Then you should only be restricted to 2 things. Mental Instability or a History of Violent crimes.

[Raeyh]

Trying to work out how that's an answer. Everyone should be allowed to have flamethrowers? Is that the point?

Well i dont see why not. Look at my above post. If you can Afford it (Or in this case make it) Then you should only be restricted to 2 things. Mental Instability or a History of Violent crimes.

You see no problem with first offenders?

[Yes Im Biop]

Well i dont see why not. Look at my above post. If you can Afford it (Or in this case make it) Then you should only be restricted to 2 things. Mental Instability or a History of Violent crimes.

You see no problem with first offenders?

If your going out and attacking with a Incindary weapon. You wont have much of future minus a Bullet to the head. That and most home made FF's you get probably 2 seconds, Most Mill get a max of 4 seconds

[Great Nepal]

Trying to work out how that's an answer. Everyone should be allowed to have flamethrowers? Is that the point?

Well i dont see why not. Look at my above post. If you can Afford it (Or in this case make it) Then you should only be restricted to 2 things. Mental Instability or a History of Violent crimes.

History shouldn't be criteria.
Any criminals should be ruled out of owning a gun. (assume for this purposes, criminals = crime with victim and excluding petty offences)

[Yes Im Biop]

Well i dont see why not. Look at my above post. If you can Afford it (Or in this case make it) Then you should only be restricted to 2 things. Mental Instability or a History of Violent crimes.

History shouldn't be criteria.
Any criminals should be ruled out of owning a gun. (assume for this purposes, criminals = crime with victim and excluding petty offences)

I dont know, Stealing, Manslaughter, things like that. Non violent. All criminals dosent seem so fair.

[Hallistar]

http://en.wikipedia.org/wiki/District_of_Columbia_v._Heller

I suggest some reading.

[Grave_n_idle]

The whole Decision in Dc v Heller, explained what Milita meant.

No, it explained why the majority opinion of what it meant was one thing, even while the minority opinions explained how (they thought) that was wrong.

I'm inclined to agree with the minority opinion, to be honest. I think the wrong call was made. Perhaps, at some point, that will be reversed.

[Cordite]

Why do some citizens of the USA believe they have a "God-given right to bear arms"

The "God given right" thing is a reference to the Declaration of Independence stating that we are endowed with certain inherent and inalienable rights by our Creator. IMNSHO, that was not a definitive theological statement it was only an oppositional political argument in rebuttal to the British system's fundamental "divine right" of the king to arbitrarily rule however he desired.

Our rights were considered inherent, existing in us simply by being a creature of reason. Humans being social animals come together and form societies and structure them to benefit the members, to protect the rights of the members. The US Constitution is founded upon these principles and ensures them with the founding understanding that the Constitution is a charter of conferred powers that the people grant to government. The constitution's grant of powers to government is limited by these specific enumeration of powers and it is understood that all powers not conferred are retained. Some of those powers are then conferred to state governments while others are fully and completely retained by the people . . . Those are called rights -- complete exceptions of powers that were never granted to government.

Whether you believe in God as the origin of rights is immaterial to the discussion. All that matters is that you understand that the US government is contractually bound to treat the inherent and retained rights of the people as emanating from a plane above the legislative acts of man and completely excepted out of the powers granted to the government.

when the actual second amendment was not written in such a way as to condone the carrying of firearms by civilians.

The people were exercising their right to arms before the Constitution was established and before the Bill of Rights was ratified. No power was conferred through the Constitution to government to allow government to have any impact whatsoever regarding the personal arms of the private citizen. The right to keep and bear arms is a pre-existing and fully retained right; the government can not "condone" something it has no power over.

I think a lot of the confusion comes down to people just quoting the second half of this amendment, nicely ignoring the militia part.

The confusion is caused by people who have no understanding of the fundamental concepts of conferred powers and retained rights reading the 2nd Amendment as a permission slip and inspecting it to learn the precise and exact limits of the right . . . To discover what the government will allow the people to do.

Needless to say, such a mindset is wrong, such an endeavor is worthless and such a belief is dangerous.

Thankfully, for 136 years and counting the Supreme Court has never wavered in its determinations about the right to arms and the 2nd Amendment (two different things). The right to arms is not granted, given, created or established by the 2nd Amendment. The right existed before the Constitution was written thus the existence of the right does not in any manner depend on the Constitution or the 2nd Amendment. It defies logic and reason to "interpret" conditions, qualifications and restrictions on the right to arms from the 2nd Amendment when the right in no way depends upon the 2nd Amendment to exist!

IOW, the right to arms does not exist because of a particular interpretation of the 2nd Amendment (or only reading half of it) . . . The right to keep and bear arms exists because no power was ever conferred to government to allow it to even contemplate the personal arms of the private citizen. If you want to learn the full and complete extent of the citizen's rights you don't examine the Bill of Rights; you examine the Constitution for a grant of power that permits the government to act in that area.

All the 2nd Amendment really "does" is redundantly forbid the government the exercise of powers never granted to it.

[Greed and Death]

The whole Decision in Dc v Heller, explained what Milita meant.

No, it explained why the majority opinion of what it meant was one thing, even while the minority opinions explained how (they thought) that was wrong.

I'm inclined to agree with the minority opinion, to be honest. I think the wrong call was made. Perhaps, at some point, that will be reversed.

Yes I did read the dissent as well, both used history, I found the majority more persuasive. Of course a reversal could then be used later to reverse several other rights championed by the left side of the court as well. Privacy rights and the like. Lovely is the game of supreme court politics isn't it ? One side likes one set of rights the other side likes another set of rights, both sides use the logic of the other against each other.

[Grave_n_idle]

No, it explained why the majority opinion of what it meant was one thing, even while the minority opinions explained how (they thought) that was wrong.

I'm inclined to agree with the minority opinion, to be honest. I think the wrong call was made. Perhaps, at some point, that will be reversed.

Yes I did read the dissent as well, both used history, I found the majority more persuasive. Of course a reversal could then be used later to reverse several other rights championed by the left side of the court as well. Privacy rights and the like. Lovely is the game of supreme court politics isn't it ? One side likes one set of rights the other side likes another set of rights, both sides use the logic of the other against each other.

To me, the 'majority' seemed to be rationalising. Shaping interpretation to agenda. i.e. they'd decided the opinion, and then they tried to make the opinion constitutional, rather than (what I think they were paid to do) determining whether what they were considering was constitutional or not, and then shaping their opinion based on that.

To me, the minority opinions seem less politically and ideologically motivated, more grounded in history and precedent.

I'm not sure why it should be a partisan issue, though. You say "a reversal could then be used later to reverse several other rights championed by the left side of the court", but it shouldn't be a 'left' or 'right' issue - and it shouldn't be about a conflict between 'one set of rights' and another.

I think the best argument is that the Constitution explicitly defines a right to keep and bear arms, but that there is a specific justification. Moreover, I think that justification is good. The problem is that the text is being perverted to fit an agenda, rather than do either of the things we really OUGHT to do if the Constitution matters. Either: 1) amend the Constitution to make the Second Amendment explicitly non-conditional and universal, or: 2) apply the logic that drove the Second Amendment, and tie the right to keep and bear arms to a well-regulated militia with a specific focus.

[Alien Space Bats]

<continued from earlier>

I'm going to do something unusual: I'm going to let Justice Clarence Thomas explain how and why the 39th Congress elected to extend the Federal "right to bear arms" to the States via the 14th Amendment.

Understand that Thomas' argument in no way contradicts the "natural rights" argument in favor of gun ownership advanced above by Cordite; indeed, in the opinion I'm quoting here (Thomas' concurring opinion in McDonald v. City of Chicago, 561 U.S. 3025 (2010)), Justice Thomas directly acknowleges that many jurists accepted the idea that gun ownership was a "natural" right (although a better term within the context of Constitutional law might be "common law" right); he even cites examples of rulings in which this view was asserted (see below). That said, however, it is also clear that - at least prior to the ratification of the 14th Amendment, that argument was primarily one that held sway at the State level, as State Constitutions were, like the Federal Constitution, also built upon a foundation of common law; remember again that, prior to incorporation, the "right to bear arms" in the Federal Constitution did not flow down to the States (per Barron, as cited above).

Let's start with the problem that Congress faced: The reasons why it saw an need to explicitly extend not only civil rights, such as freedom of speech and of the press, to all Americans, but why it saw a need to explicitly extend gun rights to all Americans as well:

In the contentious years leading up to the Civil War, those who sought to retain the institution of slavery found that to do so, it was necessary to eliminate more and more of the basic liberties of slaves, free blacks, and white abolitionists. Congressman Tobias Plants explained that slaveholders "could not hold [slaves] safely where dissent was permitted," so they decided that "all dissent must be suppressed by the strong hand of power." 39th Cong. Globe 1013. The measures they used were ruthless, repressed virtually every right recognized in the Constitution, and demonstrated that preventing only discriminatory state firearms restrictions would have been a hollow assurance for liberty. Public reaction indicates that the American people understood this point.

The overarching goal of pro-slavery forces was to repress the spread of abolitionist thought and the concomitant risk of a slave rebellion. Indeed, it is difficult to overstate the extent to which fear of a slave uprising gripped slaveholders and dictated the acts of Southern legislatures. Slaves and free blacks represented a substantial percentage of the population and posed a severe threat to Southern order if they were not kept in their place. According to the 1860 Census, slaves represented one quarter or more of the population in 11 of the 15 slave States, nearly half the population in Alabama, Florida, Georgia, and Louisiana, and more than 50% of the population in Mississippi and South Carolina. Statistics of the United States (Including Mortality, Property, &c.,) in 1860, The Eighth Census 336-350 (1866).

The Southern fear of slave rebellion was not unfounded. Although there were others, two particularly notable slave uprisings heavily influenced slaveholders in the South. In 1822, a group of free blacks and slaves led by Denmark Vesey planned a rebellion in which they would slay their masters and flee to Haiti. H. Aptheker, American Negro Slave Revolts 268–270 (1983). The plan was foiled, leading to the swift arrest of 130 blacks, and the execution of 37, including Vesey. Id., at 271. Still, slaveowners took notice — it was reportedly feared that as many as 6,600 to 9,000 slaves and free blacks were involved in the plot. Id., at 272. A few years later, the fear of rebellion was realized. An uprising led by Nat Turner took the lives of at least 57 whites before it was suppressed. Id., at 300–302.

The fear generated by these and other rebellions led Southern legislatures to take particularly vicious aim at the rights of free blacks and slaves to speak or to keep and bear arms for their defense. Teaching slaves to read (even the Bible) was a criminal offense punished severely in some States. See K. Stampp, The Peculiar Institution: Slavery in the Ante-bellum South 208, 211 (1956). Virginia made it a crime for a member of an "abolition" society to enter the State and argue "that the owners of slaves have no property in the same, or advocate or advise the abolition of slavery." 1835–1836 Va. Acts ch. 66, p. 44. Other States prohibited the circulation of literature denying a master's right to property in his slaves and passed laws requiring postmasters to inspect the mails in search of such material. C. Eaton, The Freedom-of-Thought Struggle in the Old South 118–143, 199–200 (1964).

Many legislatures amended their laws prohibiting slaves from carrying firearms to apply the prohibition to free blacks as well. See, e.g., Act of Dec. 23, 1833, §7, 1833 Ga. Acts pp. 226, 228 (declaring that "it shall not be lawful for any free person of colour in this state, to own, use, or carry fire arms of any description whatever"); H. Aptheker, Nat Turner's Slave Rebellion 74–76, 83–94 (1966) (discussing similar Maryland and Virginia statutes); see also Act of Mar. 15, 1852, ch. 206, 1852 Miss. Laws p. 328 (repealing laws allowing free blacks to obtain firearms licenses); Act of Jan. 31, 1831, 1831 Fla. Acts p. 30 (same). Florida made it the "duty" of white citizen "patrol[s] to search negro houses or other suspected places, for fire arms." Act of Feb. 17, 1833, ch. 671, 1833 Fla. Acts pp. 26, 30. If they found any firearms, the patrols were to take the offending slave or free black "to the nearest justice of the peace," whereupon he would be "severely punished" by "whipping on the bare back, not exceeding thirty-nine lashes," unless he could give a "plain and satisfactory" explanation of how he came to possess the gun. Ibid.

I want to stop here for a moment to emphasize some of Thomas' words. One of the reasons why the Bill of Rights was not incorporated (i.e., extended to the States) by the 1st United States Congress (in spite of James Madison's initial suggestion that it should be) was because every State was already deemed to have recognized the fundamental (i.e., "natural" or "common law" rights that it embraced). Per Thomas' (from earlier in this same opinion):

... [W]hile Barron made plain that the Bill of Rights was not legally enforceable against the States, see supra, at 2, the significance of that holding should not be overstated. Like the Framers, see supra, at 14–15, many 19th-century Americans understood the Bill of Rights to declare inalienable rights that pre-existed all government. Thus, even though the Bill of Rights technically applied only to the Federal Government, many believed that it declared rights that no legitimate government could abridge. Chief Justice Henry Lumpkin's decision for the Georgia Supreme Court in Nunn v. State, 1 Ga. 243 (1846), illustrates this view. In assessing state power to regulate firearm possession, Lumpkin wrote that he was "aware that it has been decided, that [the Second Amendment], like other amendments adopted at the same time, is a restriction upon the government of the United States, and does not extend to the individual States." Id., at 250. But he still considered the right to keep and bear arms as "an unalienable right, which lies at the bottom of every free government," and thus found the States bound to honor it. Ibid. Other state courts adopted similar positions with respect to the right to keep and bear arms and other enumerated rights. Some courts even suggested that the protections in the Bill of Rights were legally enforceable against the States, Barron notwithstanding. A prominent treatise of the era took the same position. W. Rawle, A View of the Constitution of the United States of America 124–125 (2d ed. 1829) (reprint 2009) (arguing that certain of the first eight Amendments "appl[y] to the state legislatures" because those Amendments "form parts of the declared rights of the people, of which neither the state powers nor those of the Union can ever deprive them"); id., at 125-126 (describing the Second Amendment "right of the people to keep and bear arms" as "a restraint on both" Congress and the States); see also Heller, 554 U. S., at __ (slip op., at 34) (describing Rawle's treatise as "influential"). Certain abolitionist leaders adhered to this view as well. Lysander Spooner championed the popular abolitionist argument that slavery was inconsistent with constitutional principles, citing as evidence the fact that it deprived black Americans of the "natural right of all men 'to keep and bear arms' for their personal defence," which he believed the Constitution "prohibit[ed] both Congress and the State governments from infringing." L. Spooner, The Unconstitutionality of Slavery 98 (1860).

In sum, some appear to have believed that the Bill of Rights did apply to the States, even though this Court had squarely rejected that theory. See, e.g., supra, at 27–28 (recounting Rep. Hale's argument to this effect). Many others believed that the liberties codified in the Bill of Rights were ones that no State should abridge, even though they understood that the Bill technically did not apply to States. These beliefs, combined with the fact that most state constitutions recognized many, if not all, of the individual rights enumerated in the Bill of Rights, made the need for federal enforcement of constitutional liberties against the States an afterthought. See ante, at 29 (opinion of the Court) (noting that, "[i]n 1868, 22 of the 37 States in the Union had state constitutional provisions explicitly protecting the right to keep and bear arms"). That changed with the national conflict over slavery.

IOW, the 1st United States Congress could decline to extend the Bill of Rights (including "right to bear" arms) to the States in part because most States explicitly recognized these same rights within their own State Constitutions, and in part because (as argued by above Cordite), most States based their law upon the recognition of the "natural" (or "common law") rights of their citizens (again, per Thomas, "Many others believed that the liberties codified in the Bill of Rights were ones that no State should abridge, even though they understood that the Bill technically did not apply to States").

But as pressure mounted on the Southern States to maintain their "peculiar institution", their legislatures became more and more destructive of these rights. As Thomas spells out, it wasn't just slaves who were stripped of their rights: Free blacks could not bear arms, and even whites found their 1st Amendment rights to free speech, press freedoms, and assembly denied to them (again, per Thomas, "Virginia made it a crime for a member of an 'abolition' society to enter the State and argue 'that the owners of slaves have no property in the same, or advocate or advise the abolition of slavery.'" and "Other States prohibited the circulation of literature denying a master's right to property in his slaves and passed laws requiring postmasters to inspect the mails in search of such material"). As many of us who have criticized the South's decision to secede in this forum have pointed out again and again, one of South Carolina's chief complaints against the North, voiced openly it its published Secession Ordinance, was that it did not jail abolitionists, or smash their presses, or confiscate their pamphlets, or break up their meetings, in an effort to silence and destroy abolitionism as a political movement:

We affirm that these ends for which this Government was instituted have been defeated, and the Government itself has been made destructive of them by the action of the non-slaveholding States. Those States have assume the right of deciding upon the propriety of our domestic institutions; and have denied the rights of property established in fifteen of the States and recognized by the Constitution; they have denounced as sinful the institution of slavery; they have permitted open establishment among them of societies, whose avowed object is to disturb the peace and to eloign the property of the citizens of other States. They have encouraged and assisted thousands of our slaves to leave their homes; and those who remain, have been incited by emissaries, books and pictures to servile insurrection.

From a 21st-Century perspective, this complaint always draws a double-take: "[T]hey permitted open establishment among them of societies..."?!? How could the Northern States have done anything else, given the political rights enshrined in the 1st Amendment? The answer, of course, was to do as the South had done: To cast aside their guarantees of political liberty and ban abolitionism at the State level, enacting whatever laws might be required within their respective State Legislatures in order to permit such a thing, as the Federal Constitution, in the wake of Barron clearly was no obstacle to such efforts at establishing "rightful order".

In short, what was deemed "an afterthought" (in Thomas' words) by the 1st United States Congress had, some 80 years later, become essential - at least if political liberty and civil rights were to be preserved.

I'll turn back to Thomas to describe the situation Congress faced at the end of the War of the Rebellion:

After the Civil War, Southern anxiety about an uprising among the newly freed slaves peaked. As Representative Thaddeus Stevens is reported to have said, "[w]hen it was first proposed to free the slaves, and arm the blacks, did not half the nation tremble? The prim conservatives, the snobs, and the male waiting-maids in Congress, were in hysterics." K. Stampp, The Era of Reconstruction, 1865–1877, p. 104 (1965) (hereinafter Era of Reconstruction).

As the Court explains, this fear led to "systematic efforts" in the "old Confederacy" to disarm the more than 180,000 freedmen who had served in the Union Army, as well as other free blacks. See ante, at 23. Some States formally prohibited blacks from possessing firearms. Ante, at 23–24 (quoting 1865 Miss. Laws p. 165, §1, reprinted in 1 Fleming 289). Others enacted legislation prohibiting blacks from carrying firearms without a license, a restriction not imposed on whites. See, e.g., La. Statute of 1865, reprinted in id., at 280. Additionally, "[t]hroughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias, forcibly took firearms from newly freed slaves." Ante, at 24.

As the Court makes crystal clear, if the Fourteenth Amendment "had outlawed only those laws that discriminate on the basis of race or previous condition of servitude, African-Americans in the South would likely have remained vulnerable to attack by many of their worst abusers: the state militia and state peace officers." Ante, at 32. In the years following the Civil War, a law banning firearm possession outright "would have been nondiscriminatory only in the formal sense," for it would have "left firearms in the hands of the militia and local peace officers." Ibid.

Evidence suggests that the public understood this at the time the Fourteenth Amendment was ratified. The publicly circulated Report of the Joint Committee on Reconstruction extensively detailed these abuses, see ante, at 23–24 (collecting examples), and statements by citizens indicate that they looked to the Committee to provide a federal solution to this problem, see, e.g., 39th Cong. Globe 337 (remarks of Rep. Sumner) (introducing "a memorial from the colored citizens of the State of South Carolina" asking for, inter alia, "constitutional protection in keeping arms, in holding public assemblies, and in complete liberty of speech and of the press").

One way in which the Federal Government responded was to issue military orders countermanding Southern arms legislation. See, e.g., Jan. 17, 1866, order from Major General D. E. Sickles, reprinted in E. McPherson, The Political History of the United States of America During the Period of Reconstruction 37 (1871) ("The constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed"). The significance of these steps was not lost on those they were designed to protect. After one such order was issued, The Christian Recorder, published by the African Methodist Episcopal Church, published the following editorial:

"'We have several times alluded to the fact that the Constitution of the United States, guaranties to every citizen the right to keep and bear arms. . . . All men, without the distinction of color, have the right to keep arms to defend their homes, families, or themselves.' "We are glad to learn that [the] Commissioner for this State . . . has given freedmen to understand that they have as good a right to keep fire arms as any other citizens. The Constitution of the United States is the supreme law of the land, and we will be governed by that at present." Right to Bear Arms, Christian Recorder (Phila.), Feb. 24, 1866, pp. 29–30.

The same month, The Loyal Georgian carried a letter to the editor asking "Have colored persons a right to own and carry fire arms? — A Colored Citizen." The editors responded as follows:

"Almost every day, we are asked questions similar to the above. We answer certainly you have the same right to own and carry fire arms that other citizens have. You are not only free but citizens of the United States and, as such, entitled to the same privileges granted to other citizens by the Constitution of the United States.

. . . . .

". . . Article II, of the amendments to the Constitution of the United States, gives the people the right to bear arms and states that this right shall not be infringed.

. . . All men, without distinction of color, have the right to keep arms to defend their homes, families or themselves." Letter to the Editor, Loyal Georgian
(Augusta), Feb. 3, 1866, p. 3.

These statements are consistent with the arguments of abolitionists during the antebellum era that slavery, and the slave States' efforts to retain it, violated the constitutional rights of individuals — rights the abolitionists described as among the privileges and immunities of citizenship. See, e.g., J. Tiffany, Treatise on the Unconstitutionality of American Slavery 56 (1849) (reprint 1969) ("pledg[ing] . . . to see that all the rights, privileges, and immunities, granted by the constitution of the United States, are extended to all"); id., at 99 (describing the "right to keep and bear arms" as one of those rights secured by "the constitution of the United States"). The problem abolitionists sought to remedy was that, under Dred Scott, blacks were not entitled to the privileges and immunities of citizens under the Federal Constitution and that, in many States, whatever inalienable rights state law recognized did not apply to blacks. See, e.g., Cooper v. Savannah, 4 Ga. 68, 72 (1848) (deciding, just two years after Chief Justice Lumpkin's opinion in Nunn recognizing the right to keep and bear arms, see supra, at 39, that "[f]ree persons of color have never been recognized here as citizens; they are not entitled to bear arms").

Remember what I said in my previous post?

If you're trying to understand the 2nd Amendment by looking at what it meant to Congress and America in 1789, when it was passed, then you're looking in the wrong place. You need to focus on what it meant as applied through the 14th Amendment, in 1868, in the context and against the backdrop of Reconstruction - where its meaning and significance are completely different.

Well, this is where that comes into play. 80 years earlier, the 2nd Amendment may have been written as an answer to the problem of how to secure the new Republic without creating a central-managed standing army that might - as so many standing armies had done through the course of history (from the time of Julius Caesar to that of Oliver Cromwell) - overthrow the civil government and establish military rule.

The answer seemed a brilliant one: To devolve responsibility for the defense of the nation onto the shoulders of citizen-soldiers, organized in State Militias; to allow the several States to choose the officers who would command these citizen-soldiers up to the rank of Colonel (in those days, the most senior regimental officer, regiments being the "depot" units that served as the main foundation for the recruitment of soldiers within a given geographical area; the men from each regiment would then be divided into battalions for service on campaign, each under the effective command of a Lieutenant-Colonel). With the bulk of any American army recruited by the States (and under the direct command and organization oversight or officers who also owed their commissions to the States, and were thus more likely to be personally loyal to their State Governors than to any General who might me placed above them), no Federal officer would be in the position to play Caesar (or Cromwell); whether a Brigadier (i.e., a brigade commander, in charge of a collection of battalions operating independently of their parent regiments), a Lieutenant-General (commanding a division of a field army, itself comprised of brigades), or a Major-General (commanding a full army, the army-corps not having yet been invented), any adventurous officer would find himself in charge of troops from several States (and thus scattered loyalties). The prospects for a coup would thus be dim, indeed.

But after the War of the Rebellion, Congress faced a different problem: That of guaranteeing the liberties of four million freed slaves in the face of likely armed hostility by their white neighbors. Making this situation even more difficult was the mass of pre-existing law within the Southern States; all of the old, discriminatory laws against African-Americans - even free African-Americans - were still on the books; to get rid of them and assure these new American citizens their freedom would require Federal intervention in the realm of State law. Unlike the situation in 1789, when all States could be assumed to be inclined to respect the "natural" (or "common law") rights of their citizens, the newly pacified South could be expected to attempt to deprive African-Americans (and, where necessary, their white allies) of these same rights at every possible turn.

Again, per Thomas:

[Amendment XIV,] Section 1 guaranteed the rights of citizenship in the United States and in the several States without regard to race. But it was understood that liberty would be assured little protection if §1 left each State to decide which privileges or immunities of United States citizenship it would protect. As Frederick Douglass explained before §1's adoption, "the Legislatures of the South can take from him the right to keep and bear arms, as they can — they would not allow a negro to walk with a cane where I came from, they would not allow five of them to assemble together." In What New Skin Will the Old Snake Come Forth? An Address Delivered in New York, New York, May 10, 1865, reprinted in 4 The Frederick Douglass Papers 79, 83–84 (J. Blassingame & J. McKivigan eds., 1991) (footnote omitted). "Notwithstanding the provision in the Constitution of the United States, that the right to keep and bear arms shall not be abridged," Douglass explained that "the black man has never had the right either to keep or bear arms." Id., at 84. Absent a constitutional amendment to enforce that right against the States, he insisted that "the work of the Abolitionists [wa]s not finished." Ibid.

This history confirms what the text of the Privileges or Immunities Clause most naturally suggests: Consistent with its command that "[n]o State shall . . . abridge" the rights of United States citizens, the Clause establishes a minimum baseline of federal rights, and the constitutional right to keep and bear arms plainly was among them.

tl&dr: In the wake of the War of the Rebellion, Congress understood that it could not simply count on the South treating the newly freed slaves as free men deserved to be treated in accordance with common law; rather, the Southern States would use their soveriegnty under the 10th Amendment and the fact that the Federal Bill of Rights never explicitly limited State behavior to take away the rights of these new citizens wholesale; thus it sought to explicitly incorporate the Bill of Rights into State and local law in such a way as to compel the South to respect the rights of all citizens, including African-Americans.

And among the rights it chose to extend, whether States wished it or not, was the right to bear arms - no longer as part of a State-authorized Militia (whose members States could select, arm, and commission at will), but now as a universal and individual right, free even of State control.

<more to come>