The Right To Bear Arms

[Lakhota]

The Right To Bear Arms: Ex-Chief Justice Warren Burger in Parade Magazine

 

[Lakhota]

A distinguished citizen takes a stand on one of the most controversial issues in the nation

By Warren E. Burger, Chief Justice of the United States (1969-86)
Parade Magazine, January 14, 1990, page 4

Let's look at the history.

First, many of the 3.5 million people living in the 13 original Colonies depended on wild game for food, and a good many of them required firearms for their defense from marauding Indians -- and later from the French and English. Underlying all these needs was an important concept that each able-bodied man in each of the 133 independent states had to help or defend his state.

The early opposition to the idea of national or standing armies was maintained under the Articles of Confederation; that confederation had no standing army and wanted none. The state militia -- essentially a part-time citizen army, as in Switzerland today -- was the only kind of "army" they wanted. From the time of the Declaration of Independence through the victory at Yorktown in 1781, George Washington, as the commander-in-chief of these volunteer-militia armies, had to depend upon the states to send those volunteers.

When a company of New Jersey militia volunteers reported for duty to Washington at Valley Forge, the men initially declined to take an oath to "the United States," maintaining, "Our country is New Jersey." Massachusetts Bay men, Virginians and others felt the same way. To the American of the 18th century, his state was his country, and his freedom was defended by his militia.

The victory at Yorktown -- and the ratification of the Bill of Rights a decade later -- did not change people's attitudes about a national army. They had lived for years under the notion that each state would maintain its own military establishment, and the seaboard states had their own navies as well. These people, and their fathers and grandfathers before them, remembered how monarchs had used standing armies to oppress their ancestors in Europe. Americans wanted no part of this. A state militia, like a rifle and powder horn, was as much a part of life as the automobile is today; pistols were largely for officers, aristocrats -- and dueling.

Against this background, it was not surprising that the provision concerning firearms emerged in very simple terms with the significant predicate -- basing the right on the necessity for a "well regulated militia," a state army.

In the two centuries since then -- with two world wars and some lesser ones -- it has become clear, sadly, that we have no choice but to maintain a standing national army while still maintaining a "militia" by way of the National Guard, which can be swiftly integrated into the national defense forces.

Americans also have a right to defend their homes, and we need not challenge that. Nor does anyone seriously question that the Constitution protects the right of hunters to own and keep sporting guns for hunting game any more than anyone would challenge the right to own and keep fishing rods and other equipment for fishing -- or to own automobiles. To "keep and bear arms" for hunting today is essentially a recreational activity and not an imperative of survival, as it was 200 years ago; "Saturday night specials" and machine guns are not recreational weapons and surely are as much in need of regulation as motor vehicles.

Americans should ask themselves a few questions. The Constitution does not mention automobiles or motorboats, but the right to keep and own an automobile is beyond question; equally beyond question is the power of the state to regulate the purchase or the transfer of such a vehicle and the right to license the vehicle and the driver with reasonable standards. In some places, even a bicycle must be registered, as must some household dogs.

If we are to stop this mindless homicidal carnage, is it unreasonable:

1. to provide that, to acquire a firearm, an application be made reciting age, residence, employment and any prior criminal convictions?
2. to required that this application lie on the table for 10 days (absent a showing for urgent need) before the license would be issued?
3. that the transfer of a firearm be made essentially as with that of a motor vehicle?
4. to have a "ballistic fingerprint" of the firearm made by the manufacturer and filed with the license record so that, if a bullet is found in a victim's body, law enforcement might be helped in finding the culprit?
​

These are the kind of questions the American people must answer if we are to preserve the "domestic tranquillity" promised in the Constitution.

More: Ex-Chief Justice Warren Burger in Parade Magazine

 

[Lakhota]

Our metropolitan centers, and some suburban communities of America, are setting new records for homicides by handguns. Many of our large centers have up to 10 times the murder rate of all of Western Europe. In 1988, there were 9000 handgun murders in America. Last year, Washington, D.C., alone had more than 400 homicides -- setting a new record for our capital.

The Constitution of the United States, in its Second Amendment, guarantees a "right of the people to keep and bear arms." However, the meaning of this clause cannot be understood except by looking to the purpose, the setting and the objectives of the draftsmen. The first 10 amendments -- the Bill of Rights -- were not drafted at Philadelphia in 1787; that document came two years later than the Constitution. Most of the states already had bills of rights, but the Constitution might not have been ratified in 1788 if the states had not had assurances that a national Bill of Rights would soon be added.

People of that day were apprehensive about the new "monster" national government presented to them, and this helps explain the language and purpose of the Second Amendment. A few lines after the First Amendment's guarantees -- against "establishment of religion," "free exercise" of religion, free speech and free press -- came a guarantee that grew out of the deep-seated fear of a "national" or "standing" army. The same First Congress that approved the right to keep and bear arms also limited the national army to 840 men; Congress in the Second Amendment then provided:

"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."​

In the 1789 debate in Congress on James Madison's proposed Bill of Rights, Elbridge Gerry argued that a state militia was necessary:

"to prevent the establishment of a standing army, the bane of liberty ... Whenever governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia in order to raise and army upon their ruins."​

We see that the need for a state militia was the predicate of the "right" guaranteed; in short, it was declared "necessary" in order to have a state military force to protect the security of the state. That Second Amendment clause must be read as though the word "because" was the opening word of the guarantee. Today, of course, the "state militia" serves a very different purpose. A huge national defense establishment has taken over the role of the militia of 200 years ago.

Some have exploited these ancient concerns, blurring sporting guns -- rifles, shotguns and even machine pistols -- with all firearms, including what are now called "Saturday night specials." There is, of course, a great difference between sporting guns and handguns. Some regulation of handguns has long been accepted as imperative; laws relating to "concealed weapons" are common. That we may be "over-regulated" in some areas of life has never held us back from more regulation of automobiles, airplanes, motorboats and "concealed weapons."

From the OP link.

 

[asaratis]

A distinguished citizen takes a stand on one of the most controversial issues in the nation

By Warren E. Burger, Chief Justice of the United States (1969-86)
Parade Magazine, January 14, 1990, page 4

Let's look at the history.

First, many of the 3.5 million people living in the 13 original Colonies depended on wild game for food, and a good many of them required firearms for their defense from marauding Indians -- and later from the French and English. Underlying all these needs was an important concept that each able-bodied man in each of the 133 independent states had to help or defend his state.

The early opposition to the idea of national or standing armies was maintained under the Articles of Confederation; that confederation had no standing army and wanted none. The state militia -- essentially a part-time citizen army, as in Switzerland today -- was the only kind of "army" they wanted. From the time of the Declaration of Independence through the victory at Yorktown in 1781, George Washington, as the commander-in-chief of these volunteer-militia armies, had to depend upon the states to send those volunteers.

When a company of New Jersey militia volunteers reported for duty to Washington at Valley Forge, the men initially declined to take an oath to "the United States," maintaining, "Our country is New Jersey." Massachusetts Bay men, Virginians and others felt the same way. To the American of the 18th century, his state was his country, and his freedom was defended by his militia.

The victory at Yorktown -- and the ratification of the Bill of Rights a decade later -- did not change people's attitudes about a national army. They had lived for years under the notion that each state would maintain its own military establishment, and the seaboard states had their own navies as well. These people, and their fathers and grandfathers before them, remembered how monarchs had used standing armies to oppress their ancestors in Europe. Americans wanted no part of this. A state militia, like a rifle and powder horn, was as much a part of life as the automobile is today; pistols were largely for officers, aristocrats -- and dueling.

Against this background, it was not surprising that the provision concerning firearms emerged in very simple terms with the significant predicate -- basing the right on the necessity for a "well regulated militia," a state army.

In the two centuries since then -- with two world wars and some lesser ones -- it has become clear, sadly, that we have no choice but to maintain a standing national army while still maintaining a "militia" by way of the National Guard, which can be swiftly integrated into the national defense forces.

Americans also have a right to defend their homes, and we need not challenge that. Nor does anyone seriously question that the Constitution protects the right of hunters to own and keep sporting guns for hunting game any more than anyone would challenge the right to own and keep fishing rods and other equipment for fishing -- or to own automobiles. To "keep and bear arms" for hunting today is essentially a recreational activity and not an imperative of survival, as it was 200 years ago; "Saturday night specials" and machine guns are not recreational weapons and surely are as much in need of regulation as motor vehicles.

Americans should ask themselves a few questions. The Constitution does not mention automobiles or motorboats, but the right to keep and own an automobile is beyond question; equally beyond question is the power of the state to regulate the purchase or the transfer of such a vehicle and the right to license the vehicle and the driver with reasonable standards. In some places, even a bicycle must be registered, as must some household dogs.

If we are to stop this mindless homicidal carnage, is it unreasonable:

1. to provide that, to acquire a firearm, an application be made reciting age, residence, employment and any prior criminal convictions?
2. to required that this application lie on the table for 10 days (absent a showing for urgent need) before the license would be issued?
3. that the transfer of a firearm be made essentially as with that of a motor vehicle?
4. to have a "ballistic fingerprint" of the firearm made by the manufacturer and filed with the license record so that, if a bullet is found in a victim's body, law enforcement might be helped in finding the culprit?
​

These are the kind of questions the American people must answer if we are to preserve the "domestic tranquillity" promised in the Constitution.

More: Ex-Chief Justice Warren Burger in Parade Magazine

Our metropolitan centers, and some suburban communities of America, are setting new records for homicides by handguns. Many of our large centers have up to 10 times the murder rate of all of Western Europe. In 1988, there were 9000 handgun murders in America. Last year, Washington, D.C., alone had more than 400 homicides -- setting a new record for our capital.

The Constitution of the United States, in its Second Amendment, guarantees a "right of the people to keep and bear arms." However, the meaning of this clause cannot be understood except by looking to the purpose, the setting and the objectives of the draftsmen. The first 10 amendments -- the Bill of Rights -- were not drafted at Philadelphia in 1787; that document came two years later than the Constitution. Most of the states already had bills of rights, but the Constitution might not have been ratified in 1788 if the states had not had assurances that a national Bill of Rights would soon be added.

People of that day were apprehensive about the new "monster" national government presented to them, and this helps explain the language and purpose of the Second Amendment. A few lines after the First Amendment's guarantees -- against "establishment of religion," "free exercise" of religion, free speech and free press -- came a guarantee that grew out of the deep-seated fear of a "national" or "standing" army. The same First Congress that approved the right to keep and bear arms also limited the national army to 840 men; Congress in the Second Amendment then provided:

"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."​

In the 1789 debate in Congress on James Madison's proposed Bill of Rights, Elbridge Gerry argued that a state militia was necessary:

"to prevent the establishment of a standing army, the bane of liberty ... Whenever governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia in order to raise and army upon their ruins."​

We see that the need for a state militia was the predicate of the "right" guaranteed; in short, it was declared "necessary" in order to have a state military force to protect the security of the state. That Second Amendment clause must be read as though the word "because" was the opening word of the guarantee. Today, of course, the "state militia" serves a very different purpose. A huge national defense establishment has taken over the role of the militia of 200 years ago.

Some have exploited these ancient concerns, blurring sporting guns -- rifles, shotguns and even machine pistols -- with all firearms, including what are now called "Saturday night specials." There is, of course, a great difference between sporting guns and handguns. Some regulation of handguns has long been accepted as imperative; laws relating to "concealed weapons" are common. That we may be "over-regulated" in some areas of life has never held us back from more regulation of automobiles, airplanes, motorboats and "concealed weapons."

From the OP link.

I rest assured that even if you or any of your ilk read this entire primer, you will remain in favor of strict gun control. You are incorrigible.

A Primer on the Constitutional Right to Keep and Bear Arms

The purpose of the Constitution is to limit the powers of the federal government. The Bill of Rights applies to the citizens as protection from runaway government such as we have in office today.

Read it.

 

[Lakhota]

Chief Justice Burger was a smart man. He clearly articulated why the 2nd Amendment is obsolete.

 

[Barb]

From another thread:

Thom Hartmann: The Second Amendment Was Ratified to Preserve Slavery | Alternet

why it says "State" instead of "Country" (the Framers knew the difference - see the 10th Amendment), was to preserve the Slave Patrol Militias in the Southern States, which was necessary to get Virginia's vote. Founders Patrick Henry, George Mason, and James Madison were totally clear on that ... and we all should be too.

 

[bayoubill]

From another thread:

Thom Hartmann: The Second Amendment Was Ratified to Preserve Slavery | Alternet

why it says "State" instead of "Country" (the Framers knew the difference - see the 10th Amendment), was to preserve the Slave Patrol Militias in the Southern States, which was necessary to get Virginia's vote. Founders Patrick Henry, George Mason, and James Madison were totally clear on that ... and we all should be too.

interesting take... plausible that it might have been a minor part of the reason behind the Second Amendment... but the background writings of the Framers make it clear that the primary reason for the Second Amendment is to guarantee a free state by way of lawful citizens having access to arms...

 

[Lakhota]

I think Chief Justice Burger made it very clear what the original intent of the 2nd Amendment was and why it's obsolete today.

 

[asaratis]

Chief Justice Burger was a smart man. He clearly articulated why the 2nd Amendment is obsolete.

I knew you wouldn't bother to read it.

As for Burger's opinion that the 2nd amendment is obsolete, the foresight of those that wrote the Constitution predicted there would come a day when others would want to change it...to suit their own fucking opinions.

Just as Obama is no Lincoln reincarnated, Warren Burger does not come anywhere close to possessing the intelligence and wisdom of Thomas Jefferson.

 

[Lakhota]

Chief Justice Burger was a smart man. He clearly articulated why the 2nd Amendment is obsolete.

I knew you wouldn't bother to read it.

As for Burger's opinion that the 2nd amendment is obsolete, the foresight of those that wrote the Constitution predicted there would come a day when others would want to change it...to suit their own fucking opinions.

Just as Obama is no Lincoln reincarnated, Warren Burger does not come anywhere close to possessing the intelligence and wisdom of Thomas Jefferson.

Lots of things have changed since 1791...

 

[asaratis]

Chief Justice Burger was a smart man. He clearly articulated why the 2nd Amendment is obsolete.

I knew you wouldn't bother to read it.

As for Burger's opinion that the 2nd amendment is obsolete, the foresight of those that wrote the Constitution predicted there would come a day when others would want to change it...to suit their own fucking opinions.

Just as Obama is no Lincoln reincarnated, Warren Burger does not come anywhere close to possessing the intelligence and wisdom of Thomas Jefferson.

Lots of things have changed since 1791...

Yes. Assholes that want to restrict the rights of citizens have come into power. That does not mean we should buckle under. This is NOT a democracy!

 

[LadyGunSlinger]

Bring it on.. LET'S GET TO IT. MANY OF US ARE READY FOR THIS FIGHT- Step in to IMPEACHMENT land King Obama...

 

[bayoubill]

I think Chief Justice Burger made it very clear what the original intent of the 2nd Amendment was and why it's obsolete today.

his opinion... and, as they say, opinions are like assholes...

 

[asaratis]

Has human nature changed?

Have people stopped doing evil things and threatening innocent people?

Have politicians learned to respect the sovereignty of the people and stop trying to micromanage their existence?

If not, then of course it isn't obsolete. You'd have to be an idiot to think that or completely ignorant of the purpose of the Second amendment which is to protect our right to self defense and prevent tyranny and oppression.

When the people fear the government, we have tyranny. When the government fears it's people, then we have freedom.

Your NaziCon rant doesn't address the OP. Do you belong to a militia? Why isn't the 2nd Amendment obsolete?

Because it protects free men from becoming slaves.

 

[LadyGunSlinger]

What a bunch of crap. You are the one that is profoundly ignorant. You'll say anything to convince people that you should own as many guns as you want to protect yourself and loved ones.

I know I'm going to regret this but why is that a bunch of crap?
I mean really, are you aware of the Federalist's opposition to adding a bill of rights to the Constitution and what their arguments were?

Madison was once a vocal opponent but his opinion changed and he became the editor of the state proposals and the speech I linked to and quoted from was; James Madison Addresses the House of Representatives, 8 June 1789, on the Necessity of Amendments to the Constitution

You might want to read that before you call me ignorant.

Conferred powers and retained rights . . . those are the most fundamental principles of the Constitution and establishes the maxim, ALL NOT CONFERRED IS RETAINED which of course is the basis of the 9th and 10th Amendments which stand as testaments to the Federalist's arguments (even though they "lost" the debate over adding a bill of rights).

If you want to play a sleuth find Madison's formal introduction of the proposed amendments to Congress. He wanted to insert the amendments in the BODY of the Constitution, within the particular Articles and Sections that they were modifying / effecting. Madison did not propose [what would become] the 2nd Amendment being inserted in Article I, § 8, the powers of Congress (and the militia clauses).

Go be a good citizen and come back and tell us where Madison wanted to insert the right to arms amendment.

Because I don't believe it's the truth. I don't understand this neurotic need that some people have to own a firearm. That's what it seems to be to me. Just a neurotic need.

It's none of your business why someone wants to own a weapon.. Now is it? I don't understand your need and demand to slaughter babies.. Should we wipe that right in America away with the stroke of a pen because I have a different opinion? You fascists keep on.. FOOLS.

 

[BallsBrunswick]

I know I'm going to regret this but why is that a bunch of crap?
I mean really, are you aware of the Federalist's opposition to adding a bill of rights to the Constitution and what their arguments were?

Madison was once a vocal opponent but his opinion changed and he became the editor of the state proposals and the speech I linked to and quoted from was; James Madison Addresses the House of Representatives, 8 June 1789, on the Necessity of Amendments to the Constitution

You might want to read that before you call me ignorant.

Conferred powers and retained rights . . . those are the most fundamental principles of the Constitution and establishes the maxim, ALL NOT CONFERRED IS RETAINED which of course is the basis of the 9th and 10th Amendments which stand as testaments to the Federalist's arguments (even though they "lost" the debate over adding a bill of rights).

If you want to play a sleuth find Madison's formal introduction of the proposed amendments to Congress. He wanted to insert the amendments in the BODY of the Constitution, within the particular Articles and Sections that they were modifying / effecting. Madison did not propose [what would become] the 2nd Amendment being inserted in Article I, § 8, the powers of Congress (and the militia clauses).

Go be a good citizen and come back and tell us where Madison wanted to insert the right to arms amendment.

Because I don't believe it's the truth. I don't understand this neurotic need that some people have to own a firearm. That's what it seems to be to me. Just a neurotic need.

It's none of your business why someone wants to own a weapon.. Now is it? I don't understand your need and demand to slaughter babies.. Should we wipe that right in America away with the stroke of a pen because I have a different opinion? You fascists keep on.. FOOLS.

How drunk are you tonight? You're more emotional and ranting than usual.

 

[asaratis]

You like bumping your failed thread don't you?

Liberals are relentless repeaters of lies! It is to be expected!

 

[LadyGunSlinger]

Because I don't believe it's the truth. I don't understand this neurotic need that some people have to own a firearm. That's what it seems to be to me. Just a neurotic need.

It's none of your business why someone wants to own a weapon.. Now is it? I don't understand your need and demand to slaughter babies.. Should we wipe that right in America away with the stroke of a pen because I have a different opinion? You fascists keep on.. FOOLS.

How drunk are you tonight? You're more emotional and ranting than usual.

Poor Scrotum.. Can never argue the merit only throw around his usual tirade of stupid taunts.. Go wash your nutsack.

 

[zonly1]

Wingnuts haven't said or done anything to convince anyone that assualt weapons are a part of the second ammendment so in that way, yes, it is obsolete.

do you know what is an assault weapon without parriting ignorance from the leftwingnut new cor? It was define in 1986 but you should read the DICK ACT OF 1902, cause you are screwed.

 

[yidnar]

By Peter Weber

That's the opinion of Rupert Murdoch's conservative New York Post. And it's not as far-fetched as it may seem.

Well, let's read the text of the Second Amendment, says Jeffrey Sachs at The Huffington Post:

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.​

It's astonishingly clear that "the Second Amendment is a relic of the founding era more than two centuries ago," and "its purpose is long past."

As Justice John Paul Stevens argues persuasively, the amendment should not block the ability of society to keep itself safe through gun control legislation. That was never its intent. This amendment was about militias in the 1790s, and the fear of the anti-federalists of a federal army. Since that issue is long moot, we need not be governed in our national life by doctrines on now-extinct militias from the 18th century.​

"Fair-minded readers have to acknowledge that the text is ambiguous," says Cass Sunstein at Bloomberg View. Justice Antonin Scalia, who wrote the majority opinion in Heller, was laying out his interpretation of a "genuinely difficult" legal question, and "I am not saying that the court was wrong." More to the point: Right or wrong, obsolete or relevant, the Second Amendment essentially means what five justices on the Supreme Court say it means. So "we should respect the fact that the individual right to have guns has been established," but even the pro-gun interpretation laid out by Scalia explicitly allows for banning the kinds of weapons the shooter used to murder 20 first-graders. The real problem is in the political arena, where "opponents of gun control, armed with both organization and money, have been invoking the Second Amendment far more recklessly," using "wild and unsupportable claims about the meaning of the Constitution" to shut down debate on what sort of regulations might save lives.

More: Is the Second Amendment obsolete? - The Week

according to your ilk the Constitution is obsolete .