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Individual Rights

It is noteworthy, I think, that the word 'individual(s)' does not appear in the Constitution itself in reference to individual persons (it is sometimes used in reference to States). In regard to rights, the Constitution generally employs the term "the people". A careful reading, I think, makes it clear the framers intended the term "the people" in the collective sense. For example, ". . . the people's right to keep and bear arms." Misplaced Pages's explanations of the articles would be better served, I think, if it refrained from the use of expressions such as, "the right of individuals to bear arms." — Preceding unsigned comment added by Pbyall (talk • contribs) 20:02, 31 July 2011 (UTC)

"Individual" is THE question. Now it has been decided that it is individual, but even before that / in either case, we must accurately describe the question. North8000 (talk) 20:22, 31 July 2011 (UTC)
Misplaced Pages talk pages are not forums and this is not the place to give your "careful reading" of the constitution when it appears you're unfamiliar with it. You're right, the constitution never uses the word "individual". One possible reason for that is because the term individual is a much narrower term than "person" which the constitution uses continually. For example, when it clearly refers to individuals, such as the individual to be the president, it uses the term "person". The term "people" or "the people" is used in most of the other individual rights amendments of the Bill of Rights as well. For instance, "the people" is used in the 1st, 2nd, and 4th amendments, as well as the 9th and 10th (although their effect is much less apparent). The 17th amendment also uses "the people" although its context is contextually quite different. "Person" is used in the Bill of Rights when its clear that only a specific person is relevant, e.g. the 5th amendment.
You might find it interesting that most 2nd amendment jurisprudence has had little to do with these issues, however. "Person" and "individual" are words that have specific legal meanings in all contexts, specifically though in the constitution (person is broader than individual; the former including corporate entities and other bodies, whereas individuals means a single homo sapien).
In any case, this isn't the place to argue your opinion. Shadowjams (talk) 05:12, 17 August 2011 (UTC)

Ratification debate and its purpose

The section of this article on "Ratification Debate" contains a number of unsourced assertions that may be a-historical.

For example, the article states, "Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny." This may not quite be the case. In the Federalist #25, for example, Hamilton cautions that "feeble government" is unlikely to be respected, and cites some instances where states have raised militias to quell the spirit of rebellion among the population. He writes:

"The conduct of Massachusetts affords a lesson on the same subject, though on different ground. That State (without waiting for the sanction of Congress, as the articles of the Confederation require) was compelled to raise troops to quell a domestic insurrection, and still keeps a corps in pay to prevent a revival of the spirit of revolt. The particular constitution of Massachusetts opposed no obstacle to the measure; but the instance is still of use to instruct us that cases are likely to occur under our government, as well as under those of other nations, which will sometimes render a military force in time of peace essential to the security of the society, and that it is therefore improper in this respect to control the legislative discretion. It also teaches us, in its application to the United States, how little the rights of a feeble government are likely to be respected, even by its own constituents. And it teaches us, in addition to the rest, how unequal parchment provisions are to a struggle with public necessity."

If there is an individual right to bear arms, the origin of this right likely lies elsewhere than in enabling the citizens to fight the government. It may have been so obvious to the framers that it didn't warrant much debate, but one likely reason for the second amendment was that the revolutionaries were, in casting off monarchy, also casting off the feudal system.

Under the feudal system, most nobles were knights, sworn to protect the clergy, their liege, and the peasants who lived on their land, and who were unarmed. Arming the peasants would have been seen as an important part of preventing the resurgence of a feudal society. This interpretation would agree with the prohibition against titles of nobility found in both the Constitution and the Articles of Confederation.

Inijones (talk) 18:31, 9 December 2011 (UTC)

Not that this is the place for such a discussion, but one person arguing for a non-feeble government does not even address much less refute "potential check against tyranny" being one of the reasons for the 2A. North8000 (talk) 19:06, 9 December 2011 (UTC)
Are you kidding? Alexander Hamilton is hardly "one person arguing for non-feeble government." Inijones (talk) 21:09, 9 December 2011 (UTC)
Which part of that is an incorrect description of what you wrote? North8000 (talk) 21:17, 9 December 2011 (UTC)
Dismissing Hamilton's writings in the Federalist as just the opinions of one person is like saying "Benjamin Franklin was just some printer" or "Constantine was just some Roman who found Jesus one day." The Federalist Papers are a record of what people thought about the Constitution at the time it was ratified. If you believe that the Constitution means what it says, and that "activist judges" are a problem, then you are obligated to consider the Federalist Papers as a record of what the Constitution meant to the people who ratified it. If you dismiss the Federalist papers, you're no better than "activist judges." Inijones (talk) 14:22, 10 December 2011 (UTC)
The Federalist Papers are a record of what the people who wrote the Constitution, not those who ratified it, thought it meant. SMP0328. (talk) 15:42, 10 December 2011 (UTC)
Hamilton played little part in the writing of the constitution, and the authors of the Federalist papers were addressing their critics as well as their supporters, and so the document is a record of what people thought about the Constitution at the time it was ratified.Inijones (talk) 16:01, 10 December 2011 (UTC)
The whole article is OR, using primary sources rather than secondary sources. The right to bear arms was already recognized in the American states under the Bill of Rights 1689. TFD (talk) 20:01, 9 December 2011 (UTC)
The Bill of Rights 1689 is British law and so ceased to be binding in America post-independence. Such recognition by the States was under State Constitutions. SMP0328. (talk) 20:13, 9 December 2011 (UTC)
No, all English laws remained in force except where superceded by specific declarations or laws of the states. See for example Kilty's English Statutes, 1811 which explains which English laws continued in effect in Maryland. TFD (talk) 20:30, 9 December 2011 (UTC)
It would make sense that the colonists would follow the British tradition on this regard (the British were still "subjects" and didn't become "citizens" until 1981, and still have no single constitution), but that tradition occurred in the context of a monarchism that was as opposed to the feudal system as were the revolutionists, who forbade titles of nobility in the constitution.Inijones (talk) 20:53, 10 December 2011 (UTC)
The only citations in the section in question are from the constitution and the articles of confederation, save for a quote from Patrick Henry without any context, sourced from this page: http://www.quotes-museum.com/quote/Patrick_Henry/40613 and a quote from Sam Adams that reiterates what we all know is already in the constitution, and does nothing to clarify the terms of the historical debate.Inijones (talk) 21:15, 9 December 2011 (UTC)

There is a clear example in the Federalist 44 of something being too obvious to warrant debate. Madison writes: "The prohibition with respect to titles of nobility is copied from the articles of Confederation and needs no comment." Constitutional constructionism requires adherents to understand the language of the constitution in terms of its meaning at the time it was written. So with historical debates like this, it is important to look at sociological evidence outside the letter of the law.Inijones (talk) 16:01, 10 December 2011 (UTC)

There is yet another view of this issue at: http://www.historycooperative.org/journals/lhr/22.1/forum_konig.html Konig writes: "Analysis brought to bear on the historical meaning of 'the right of the people to keep and bear arms' has coalesced around two competing normative interpretations: either that the amendment guarantees a personal, individual right to bear arms, or that it applies only collectively to the effectiveness of the militia. It is a premise of this essay that both these models are historically unsatisfactory, the products of present-day normative agendas that have polarized the debate into two competing and largely ahistorical models—a type of historians' fallacy that David Hackett Fischer has labeled the 'fallacy of false dichotomous questions.' Fischer's description aptly describes the current controversy over the historical meaning of the Second Amendment: in addition to being 'grossly anachronistic,' its two opposing positions 'are mutually exclusive, and collectively exhaustive, so that the there is no overlap, no opening in the middle, and nothing is omitted at either end.' It is not without challenge on just these grounds, however, as a recent call for a 'new more sophisticated paradigm' attests. This essay seeks to provide that new model and to do so by grounding the 'right of the people to keep and bear arms' in eighteenth-century concepts of rights, not those of the twenty-first century, and to contextualize the right to bear arms in an eighteenth-century political struggle now largely ignored but well known to constitutional polemicists framing the Constitution and the Bill of Rights: Parliament's rebuilding of an English militia while denying the Scots the right to do so, despite Scotland's history and its claimed constitutional rights according to its coequal status in Great Britain." Some of the evidence brought to bear by Konig would be worth including in the section of the Misplaced Pages article that I've raised issue with.Inijones (talk) 16:01, 10 December 2011 (UTC)

In terms of Konig's argument noted above, the "right to bear arms" may have been meant to be construed in terms of a well regulated militia, specifically as an alternative to a standing army, the purpose of which was to repel foreign invasion, quell insurrection, in addition to serving as a check against tyranny (compare to Article I Section 8 of the Constitution, giving Congress the power to "raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years"). To Konig, the historical understanding involved an individual right as a function of a collective duty; this was notably in the absence of a feudal system of patronage and protection.Inijones (talk) 21:09, 10 December 2011 (UTC)

The importance of historical context in a constructionist (originalist) milieu is discussed in a secondary source here http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.html "There are five sources that have guided interpretation of the Constitution: (1) the text and structure of the Constitution, (2) intentions of those who drafted, voted to propose, or voted to ratify the provision in question, (3) prior precedents (usually judicial), (4) the social, political, and economic consequences of alternative interpretations, and (5) natural law. There is general agreement that the first three of these sources are appropriate guides to interpretation, but considerable disagreement as to the relative weight that should be given to the three sources when they point in different directions. Many interpreters of the Constitution have suggested that the consequences of alternative interpretations are never relevant, even when all other considerations are evenly balanced. Natural law (higher law, God's law) is now only infrequently suggested as an interpretive guide, even though many of the framers of the Constitution recognized its appropriateness. Persons who favor heavy reliance on originalist sources (text and intentions) are commonly called 'originalists.'"Inijones (talk) 15:56, 11 December 2011 (UTC)

First Paragraph

The first paragraph of the section in question reads: "There was substantial opposition to the new Constitution, because it moved the power to arm the state militias from the states to the federal government. This created a fear that the federal government, by neglecting the upkeep of the militia, could have overwhelming military force at its disposal through its power to maintain a standing army and navy, leading to a confrontation with the states, encroaching on the states' reserved powers and even engaging in a military takeover"

None of these statements are sourced. The fears of neglecting the militia are discussed in context in the article by Konig I mentioned above, but the assertion about the federal government's ability to maintain a standing army needs clarification in light of Article I Section 8 of the US Constitution which I have cited above, giving Congress the power to "raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years." Which is to say, that the framers seemed wary of standing armies, and took steps to safeguard against their establishment. At the time monarchs were disarming peasants to centralize power in armies and dismantle the feudal system. Also, standing armies were expensive and tended to bankrupt nations. For example: http://en.wikipedia.org/Military_history_of_France "Under Louis XIV France achieved military supremacy over its rivals, but escalating conflicts against increasingly powerful enemy coalitions checked French ambitions and left the kingdom bankrupt at the opening of the 18th century." The origin of Swiss political neutrality had to do with the fact that their national industry was a mercenary army for hire, as if to make it known that their involvement in military affairs was a strictly commercial proposition: http://en.wikipedia.org/Swiss_mercenaries "Until roughly 1490, the Swiss had a virtual monopoly on pike-armed mercenary service. However, after that date, the Swiss mercenaries were increasingly supplemented by imitators, chiefly the Landsknechts. Landsknechts were Germans (at first largely from Swabia) and became proficient at Swiss tactics to produce a force that filled the ranks of European armies with mercenary regiments for decades. Although the Landsknechts were never quite as redoubtable as the Swiss, they were much more readily available for hire, as after 1515 the Swiss pledged themselves to neutrality, other than regarding Swiss soldiers serving in the ranks of the Royal French army"

The Constitutional provision to maintain a Navy was primarily about commerce and piracy, as the US was largely pre-industrial. According to http://www.history.navy.mil/history/history2.htm "The Continental Congress had a very limited role in mind for the navy. It was not expected to contest British control of the seas, but rather to wage a traditional guerre de course against British trade, in conjunction with the scores of privateers outfitting in American ports. The Continental navy's ships were to raid commerce and attack the transports that supplied British forces in North America. To carry out this mission, the Continental Congress began to build up, through purchase, conversion, and new construction, a cruiser navy of small ships--frigates, brigs, sloops, and schooners. For the most part, Continental navy ships cruised independently or in pairs in search of their prey, avoiding whenever possible fights with Royal Navy men-of-war."Inijones (talk) 15:12, 11 December 2011 (UTC)

Also from http://www.history.navy.mil/history/history2.htm "In Philadelphia in 1787, delegates drew up a constitution, which was adopted in 1789. As part of that debate, the Federalists, the nationalists who supported the new scheme of government, envisioned a state powerful enough to maintain a navy capable of protecting U.S. commerce. Some Federalists went even further. Alexander Hamilton argued that while the United States could not challenge Europe's principal maritime powers on the seas, in the event of a European war pitting France against Great Britain, a small fleet of American battleships would allow the United States to play the makeweight in the balance of power in the Western Hemisphere. For Hamilton and his supporters, a navy could play a broad national role in pursuit of the interests of the United States, and not just a limited role protecting the ships and cargoes of U.S. merchants." Inijones (talk) 15:23, 11 December 2011 (UTC)

New First Paragraph

It is requested that an edit be made to the semi-protected article at Second Amendment to the United States Constitution. (edit · history · last · links · protection log)

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I propose amending the section on "Ratification Debate" to include a new first paragraph to ground the relevance of the section.

I propose this text:

When seeking to understand or interpret provisions in the US Constitution, it is important to take historical context into consideration. In the context of originalism in particular, it is important to understand the language of the Constitution in terms of what that language meant to the people who wrote and ratified the text. Accordingly, the historical terms of debate continue to have relevance today.

 Not done: The page's protection level has changed since this request was placed. You should now be able to edit the page yourself. If you still seem to be unable to, please reopen the request with further details.--Hazel77 18:07, 12 December 2011 (UTC)

Couple quick thoughts. Sounds like giving the reader instructions rather than information. Also might be giving too much emphasis to that angle, one of many. North8000 (talk) 18:28, 12 December 2011 (UTC)

It has nothing to do with the ratification debate. TFD (talk) 20:15, 12 December 2011 (UTC)
Ok. How about this:
Beyond historical curiosity, the Second Amendment ratification debate is of practical import, particularly to adherents of originalist and strict constructionist legal theories. In the context of such legal theories and elsewhere, it is important to understand the language of the Constitution in terms of what that language meant to the people who wrote and ratified the Constitution.
If North8000 doesn't like that, then I propose the whole section be removed (unless (s)he has a better reason to preserve it than what I have just identified).
As TFD noted in the discussion above, the section in question is substantially original research, does not meet Misplaced Pages standards, and contains other problems which I have outlined (with citations) in two discussion sections above.
I really don't see much that should be controversial about my proposed amendment to the article. Inijones (talk) 16:26, 13 December 2011 (UTC)
  1. See Theories of Constitutional Interpretation, maintained by Doug Linder, University of Missouri-Kansas City Law School. Retrieved 2011-12-11. (Author cites Robert Bork: "If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended.")
  2. See Theories of Constitutional Interpretation, maintained by Doug Linder, University of Missouri-Kansas City Law School. Retrieved 2011-12-11. (Author cites Robert Bork: "If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended.")
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