On Sun, 12 May 2013 13:00:00 -0700, Max Boot <
max....@lathymes.com>
wrote:
>>
>> So the "people" mentioned in the rest of the Constitution..is somehow
>> different than the "people" mentioned in the 2nd Ammendment?
>
>Define "the people." Provide several citations to support your
>definition. Don't lollygag - get to it now.
The People
As ample evidence illustrates below, the people, as referred to in the
Constitution at the time it was written, was synonymous with citizens.
Also shown below, some scholars mistakenly assume that when the
Constitution refers to "the people," a collective right or entity is
referenced. However, that notion is incorrect. When the term "the
people" is used, it could be referring to a right that is exercised
individually, collectively, or both, depending on context. Of course,
the meaning of the term "the people" is the same regardless.
Why wasn't "person" or "persons" used instead of "the people" when
enumerating certain individual rights? "Persons," as referred to in
the Constitution, signified a wider class of people than citizens.
Persons included slaves. For example, Article 2, clause 3 of the
Constitution refers to slaves as persons, but they were never
considered as citizens or a part of the people: "Representatives and
direct Taxes shall be apportioned among the several States which may
be included within this Union, according to their respective Numbers,
which shall be determined by adding to the whole Number of free
Persons, including those bound to Service for a Term of Years, and
excluding Indians not taxed, three fifths of all other Persons." (U.S.
Constitution)
The Fourth Amendment of the Bill of Rights begins:
"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated..."
"The people" in the Fourth Amendment obviously refers to an individual
right. (The phrase "in their persons" means people themselves [their
bodies] cannot be unreasonably seized or searched. Compare the 14th
Amendment from Virginia's proposed declaration of rights to the
Constitution [also written by James Madison] to the 4th Amendment:
"That every freeman has a right to be secure from all unreasonable
searches and seizures of his person, his papers..." "Persons" in the
4th Amendment is used to match the plural "people.")
One of James Madison's proposed amendments:
"The people shall not be deprived or abridged of their right to
speak, to write, or to publish their sentiments; and the freedom of
the press, as one of the great bulwarks of liberty, shall be
inviolable."
Would anybody in their right mind suggest Madison proposed a
collective right to speak, write, or publish their thoughts?
Looking at other declarations of rights from the time clearly shows
"the people," being used in conjunction with the enumeration of
indvidual rights.
For example, Article XIII of Pennsylvania's 1776 Declaration of Rights
states:
"That the people have a right to bear arms for the defence of
themselves and the state..."
Article XII from the same declaration says:
"That the people have a right to freedom of speech, and of
writing, and publishing their sentiments; therefore the freedom of the
press ought not to be restrained."
In both of the above examples, "the people" means each citizen. Would
anyone seriously suggest that Article XII protects only a "collective
right," or that the people's freedom of speech and writing is limited
to those who posses a printing press or to works appearing in the news
media?
Yet, there are those claiming "it is far from obvious that the meaning
of the phrase 'defense of themselves' should be interpreted as a
statement of individual rights.'" (Saul Cornell, "Don't Know Much
About History" at p. 674. See also pp. 675-77.)
Cornell states, "One of the most serious problems with individual
rights theory is that it makes it impossible to understand why some
states embraced a new formulation of the right to bear arms in the
nineteenth century. Rather than assert a right to 'bear arms for the
defense of themselves and the state,' the new Jacksonian
constitutional formulation of this right asserted that 'each person
has a right to bear arms in defense of himself and the state.' Indeed,
the shift in language between the Founding Era and the Jacksonian
period itself provides one of the best arguments against reading the
earlier languague as advancing an individual right. There would have
been little need to adopt the new formulation if the old one were
widely understood to protect an individual right." (Cornell, St.
George Tucker and the Second Amendment at pp. 1140-41)
Unfortunately for anti-individual rights advocates the historical
record refutes "one of the best arguments:"
Pennsylvania kept that same clause in a 1790 revision as follows:
"That the right of the citizens to bear arms in defense of themselves
and the state shall not be questioned." James Wilson, president of the
convention which adopted that provision, a leading Federalist, and
later Supreme Court Justice, explained it in a discussion of homicide
"when it is necessary for the defence of one's person or house." He
continued:
it is the great natural law of self preservation, which, as we
have seen, cannot be repealed, or superseded, or suspended by any
human institution. This law, however, is expressly recognised in the
constitution of Pennsylvania. "The right of the citizens to bear arms
in the defence of themselves shall not be questioned." This is one of
our many renewals of the Saxon regulations. "They were bound," says
Mr. Selden, "to keep arms for the preservation of the kingdom, and of
their own persons." [Web source of Wilson quote]
(Stephen Halbrook, St. George Tucker's Second Amendment at p. 18)
For further refutation of the notion that "in defense of themselves"
was referring to a collective right or one that was entirely military
see Randy Barnett, Was the Right to Keep and Bear Arms Conditioned on
Service in an Organized Militia? at pp. 22-3.
Again looking at Virginia's proposed declaration of rights, from the
preamble:
"That there be a Declaration or Bill of Rights asserting and
securing from encroachment the essential and unalienable Rights of the
People in some such manner as the following;"
Article Sixteen:
"That the people have a right to freedom of speech, and of writing
and publishing their Sentiments; but the freedom of the press is one
of the greatest bulwarks of liberty and ought not to be violated."
Article Sixteen enumerates rights that clearly can be exercised
indvidually.
Roger Sherman's draft bill of rights clearly refers to individual
rights when referring to the rights of the people (article 2 [at
983]), (Sherman was a Founder, Senator, and lawyer):
"The people have certain natural rights which are retained by them
when they enter into Society, such are the rights of Conscience in
matters of religion; of acquiring property and of pursuing happiness &
Safety; of Speaking, writing and publishing their Sentiments with
decency and freedom; of peaceably assembling to consult their common
good, and of applying Government by petition or remonstrance for
redress of grievances. Of these rights therefore they Shall not be
deprived by the Government of the united states."
From the Articles of Confederation:
"The people of each State shall free ingress and regress to and
from any other State, and shall enjoy therein all the privileges of
trade and commerce..."
Hopefully the reader does not interpret the above as referring to a
collective right to travel.
Yet, Yale law professor Akhil Amar claims, "when the Constitution
speaks of 'the people' rather than 'persons,' the collective
connotation is primary" (Second Thoughts: What the right to bear arms
really means). Amar's theory unravels when looking at all of the
evidence. He tries to reconcile a portion of it writing, "The Fourth
Amendment is trickier... And these words obviously focus on the
private domain, protecting individuals in their private homes more
than in the public square. Why, then, did the Fourth use the words
'the people' at all? Probably to highlight the role that
jurors--acting collectively and representing the electorate--would
play in deciding which searches were reasonable and how much to punish
government officials who searched or seized improperly."
Amar's reasoning might sound plausible in today's context, however he
fails to provide an appropriate example. In 1789 jurors did not issue
warrants or determine whether a search was reasonable and they could
not "punish government officials who searched or seized improperly."
There was no method of suing the government in 1789 for damages
resulting from the violation of civil rights. Also Amar fails to
explain Madison's draft amendment protecting the people's right to
speak and write, mentioned above.
Regardless of what the duties and responsibilities of juries were in
1789, Amar apparently does not realize that in the Constitution,
person, without further qualification, refers to a wider class of
individuals than the people.
Some individual rights were protected for collective purposes, the
Second Amendment being one of them. However this doesn't transform the
individual right into a collective right belonging to the states or
the militia. Keeping arms was a right that could be exercised
individually or collectively.
Compare Amar's opinion with that of Harvard law professor Laurence
Tribe's:
[The Second Amendment's] central purpose is to arm "We the People"
so that ordinary citizens can participate in the collective defense of
their community and their state. But it does so not through directly
protecting a right on the part of states or other collectivities,
assertable by them against the federal government, to arm the populace
as they see fit. Rather the amendment achieves its central purpose by
assuring that the federal government may not disarm individual
citizens without some unusually strong justification consistent with
the authority of the states to organize their own militias. That
assurance in turn is provided through recognizing a right (admittedly
of uncertain scope) on the part of individuals to possess and use
firearms in the defense of themselves and their homes--not a right to
hunt for game, quite clearly, and certainly not a right to employ
firearms to commit aggressive acts against other persons--a right that
directly limits action by Congress or by the Executive Branch and may
well, in addition, be among the privileges or immunities of United
States citizens protected by ? 1 of the Fourteenth Amendment against
state or local government action.
(Laurence H. Tribe, 1 American Constitutional Law 902 n.221 [3d
ed. 2000] [emphasis added]. [Online references here and here.])
Even this anti-individual right law journal article finds, "As to the
broader context of usage within the Constitution and the Bill of
Rights, those documents use "the people" in both senses: sometimes
collectively, sometimes individually." (Also see note 5 for further
discussion, concluding, "In short, contrary to claims often made on
both sides of the debate, the Second Amendment's reference to 'the
people' does not, simply as a textual matter, commit us to either an
individual or a collective right interpretation of the Amendment.")
Lastly, even the Supreme Court agrees on the meaning of "the people"
as used in the Constitution and the Bill of Rights.
"The words 'people of the United States' and 'citizens' are
synonymous terms, and mean the same thing. They both describe the
political body who, according to our republican institutions, form the
sovereignty, and who hold the power and conduct the Government through
their representatives. They are what we familiarly call the 'sovereign
people,' and every citizen is one of this people, and a constituent
member of this sovereignty. The question before us is, whether the
class of persons described in the plea in abatement compose a portion
of this people, and are constituent members of this sovereignty? We
think they are not, and that they are not included..." (Dred Scott v.
Sandford, 60 U.S. 393 [1856])
And the dissent agrees:
"If we look into the Constitutions and State papers of that
period, we find the inhabitants or people of these colonies, or the
inhabitants of this State, or Commonwealth, employed to designate
those whom we should now denominate citizens."
In Adamson v. California, 1947) the Supreme Court refers to the Bill
of Rights as protecting individual rights:
"The reasoning that leads to those conclusions starts with the
unquestioned premise that the Bill of Rights, when adopted, was for
the protection of the individual against the federal government..."
And again the dissent agrees:
"The first 10 amendments were proposed and adopted largely because
of fear that Government might unduly interfere with prized individual
liberties."
More recently the Supreme Court comments on what "the people" may mean
today and its distinction from "person:"
'[T]he people' seems to have been a term of art employed in select
parts of the Constitution... While this textual exegesis is by no
means conclusive, it suggests that 'the people' protected by the
Fourth Amendment, and by the First and Second Amendments, and to whom
rights and powers are reserved in the Ninth and Tenth Amendments,
refers to a class of persons who are part of a national community or
who have otherwise developed sufficient connection with this country
to be considered part of that community... (Excludable alien is not
entitled to First Amendment rights, because "[h]e does not become one
of the people to whom these things are secured by our Constitution by
an attempt to enter forbidden by law"). The language of these
Amendments contrasts with the words 'person' and 'accused' used in the
Fifth and Sixth Amendments regulating procedure in criminal cases."
(U.S. v. Verdugo-Urquidez, 494 U.S. 259 [1990])
>
>
>>>
>>>> It provides a
>>>> context as to what is expected of the armed citizen, [remaining foam washed away]
>>>
>>> No, it does not. *NO* recognition of a right ever does. If it is truly
>>> a right, there is *no* corresponding responsibility.
>>
>> Sure there is. Have you never read the Constitution and the Bill of
>> Rights?
>
>No mention of any responsibilities of any rights holder in either one.
>
>You haven't read them.
You mean law abiding isnt a responsibility?
Which means..what exactly? I dont have a clue as what you are trying
to do with that "responsiblity " thingy.
So tell us all what "responsiblity" is required with the 1st
Amendment?
We will all be waiting with amused interest.
Gunner, pondering McDonald et al "individual right" visa vis the
Supreme Courts recent findings....
--
"You guess the truth hurts?