You can’t kill it with a stick: the argument that the “right to bear arms” is a collective right (i.e. it exists for the establishment of a standing militia). This despite the fact that all of the other Amendments in the so-called Bill of Rights confer individual rights. And the U.S. Supreme Court has reaffirmed this interpretation; it’s “established case law.” Stare decisis. But that’s not good enough for gun grabbers. Or John Massaro. The former State University of New York at Stony Brook assistant football coach has written a book called NO GUARANTEE OF A GUN: How and Why the Second Amendment Means Exactly What It Says (AuthorHouse, 2009). As TTAG’s editorial budget can’t cover the $45.99 purchase price, I asked Massaro to share some of the book’s ideas with TTAG’s Armed Intelligentsia. And so he has . . .

“Bear Arms” means “render military service”, as can be found in The Federalist 46.  In it, James Madison, the original author of the Second Amendment, is clear in stating that one quarter of the population is “able to bear arms”.  (He states that the 25,000-30,000 persons (one hundredth of the whole number of souls) in a regular army are one twenty-fifth of the number “able to bear arms”.)  Madison’s connotation of “able to bear arms” must mean “able to render military service” and cannot mean “able to carry weapons”.

This makes sense only when it means that one quarter of the population is “able to render military service”.  Madison is saying that one quarter of the population is “able to bear arms” as in “able to render military service”, as would be the case of the ability of the 25 percent who were able-bodied males, since they were the ones who were “able to bear arms” (that is, “able to render military service”).  It could not mean “able to carry weapons”, because anybody with the mere ability to grip and transport a gun would be “able to carry weapons”.

If he meant it to mean “able to carry weapons”, then he would be saying that only one quarter of the population was “able to carry weapons”.  That would make for a population in which three quarters were so physically handicapped that they were not “able to carry weapons”.  Even the 75 percent of the population (that is, women, children, and the aged) that were not “able to bear arms” (that is, “able to render military service”) would be “able to carry weapons”, as long as they had hands that could grip and were able to walk.  It is not plausible that 75 percent of Americans were that handicapped back in 1787 or 1788.

In addition, as only one example of many, the Virginia Proposed Declaration of Rights (June 27, 1788), which was intended to be an amendment to the United States Constitution, states, “That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead.”  Since it would be absurd for the government to require a person to pay another person to carry weapons for the personal use of the former in the former’s stead, the only plausible definition of the term “bear arms” in Virginia, the land of both Thomas Jefferson and James Madison, was “render military service”.

The Fourth Amendment uses “people” to refer to the general populace and uses “persons” TWICE to refer to individuals.  It is not plausible that the Framers would use “persons” twice to mean “individuals” after having previously used the word “people” to mean “individuals”.  That is why in the Fifth Amendment, which encompasses the rights of accused individuals, the word “person” is used twice, and the word “people” is not used at all.  In fact, the unamended Constitution works the same way.  It uses the word “people” 2 times, uses the word “persons” 4 times, and uses the word “person” 16 times.  Although “persons” is the plural of “person”, “people” must mean something different than “persons”, or the Founders would not have used both terms.

The Framers were quite precise in their word usage.  For example, if one looks into the evolution of the First Amendment, he will see that Madison evidently incorrectly cast the rights of free speech and freedom to write as rights of the people (that is, the general populace).  That is why the First Congress, evidently seeing the error in Madison’s words, recast these rights as general rights and not as rights of the people (that is, the general populace) specifically.  Meanwhile, it kept the rights of assembly and petition as rights of the people (that is, the general populace).  It is impossible for a person to assemble.  An assembly, by definition, cannot be an individual.

If one looks at the predecessor provisions in the state constitutions and proposed amendments, he will see that the right of assembly was for the purpose of petitioning the government.  The right of one person to petition can be easily satisfied by free speech and free press, which are general (and therefore) individual rights.

In the unamended Constitution, the right of electing the House members is that of the people (that is, the general populace).  As is stated in the book, election by the people means by the general populace.  After all, not every individual votes for the winner of the election, not every individual votes in the election, and not every individual is even eligible to vote in the election to begin with.

In addition, since “people” refers to the general populace and not to individuals, “keep” refers to the storage of weapons by the general populace and not to the private possession of weapons by individuals.  This is not inconsistent with the rest of the Constitution.  The word “keep” is used twice in the unamended Constitution; in neither Article I, Section 5, Clause 3 nor Article I, Section 10, Clause 3 does “keep” in any way connote personal private possession.

In addition, this connotation of “keep” is perpetuated in modern state statutes, which are listed in the book, that provide for the keeping of National Guard weapons in public depositories.

As far as the public storage of weapons two centuries ago is concerned, “An Act directing a detachment from the Militia of the United States, and for erecting certain Arsenals” (March 3, 1803) appropriated money for arsenals that the President was to cause “to be furnished with such arms, ammunition, and military stores as he may deem necessary.”  “An Act making provision for arming and equipping the whole body of the Militia of the United States” (April 23, 1808) authorized the President “to purchase sites for, and erect such additional arsenals and manufactories of arms, as he may deem expedient, under the limitations and restrictions now provided by law[.]”

And General Knox spoke before the House on December 10, 1794, on the deficiencies of the 1792 Militia Act.  Among his statements were “The deficiency cannot be supplied from Europe under the present circumstances.  The only solid resource to obtain a supply, is the establishment of manufactories in each State.”  He stated also, “The deficiency of arms cannot be more forcibly exemplified than that, to arm the militia lately called into service, estimated at fifteen thousand, the number of ten thousand arms have been issued from the public Arsenals.”

As for “A well regulated Militia”, this term is repeatedly used in The Federalist Papers (Number 29), the Anti-Federalist Papers (“John DeWitt V” and “Aristides”), and Luther Martin’s “Genuine Information” to refer to the Article I Militia in the Constitution.  And 10 U.S.C. 101 and 32 U.S.C. 101 explicitly state that the National Guard is the Article I Militia.  Therefore, using the mathematical principle that if A=B and C=B, then A=C, if “A well regulated Militia” = the Article I Militia and the National Guard = the Article I Militia, then “A well regulated Militia” must = the National Guard.

The 1792 Militia Act was abolished in 1903.  The definition of the Militia, which had been codified by that statute, has been modified by the subsequent statutes that have been adopted in place of the 1792 statute.  “Militia” has multiple meanings based on context, but that is only in the colloquial sense.  (For example, in New York, the term “political party” has a specific statutory meaning.  One cannot establish a political party in the statutory sense by simply gathering a bunch of friends in his living room and planning some political activities (even if they get on the ballot or even in most cases win the election)).  In the legal and statutory sense, “Militia” means a very specific thing, as defined by the United States Code.

The National Guard is indeed the Militia.  It is the same entity as the Organized State Militia of 1789 with a modern name.  The Dick Act of 1903 codified the Organized State Militia as the National Guard.  10 U.S.C. 101 and 32 U.S.C. 101 (as well as U.S.C. 311) have been on the books for years and are in accordance with Congress’s Article I power to organize the Militia.

The National Guard, since 1916, has been part of the Army only when it is in the service of the United States.  When it is not in the service of the United States, it is the Organized State Militia under the auspices of the state.  This point was affirmed in both the case of Dukakis v. Department of Defense (1988-1989), which was denied a hearing by the Supreme Court, and the case of Perpich v. Department of Defense (1987-1990), which was heard and affirmed by the Supreme Court in a case that it actually got right.

In terms of the “Bill of Rights”, there are no such words on that document.  The document is entitled simply “Amendments to the Constitution of the United States”.  If one goes to Washington, D.C., to see the actual original document that contains the amendments that were sent to the states for ratification, he or she will see that there were actually 12 original amendments.  The first one (relevant to increases in representation in the House of Representatives) was never ratified, and the “second” amendment (prohibiting members of Congress from increasing their own pay) was not ratified until 1992.  (It is now the Twenty-Seventh Amendment.)  These are hardly individual rights.

In addition, this means that the Second Amendment was actually the “fourth” amendment as proposed to the states.  This refutes the assertion by many individual-right proponents that the Second Amendment is such because it is second in importance to the First Amendment (unless an individual-right proponent wants to argue that having a Congress that cannot give itself a pay raise is a more valuable “individual” right than that of possessing and carrying a weapon).

Finally, the Second Amendment is not the American analog to Section 7 of the English Bill of Rights, which states, “that the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law”.  The American provision protects the right of the people to keep and bear arms, which is different than the English provision, which does indeed protect an individual right to possess weapons (albeit one that is limited to Protestants and one that limits the scope and purpose of the weapons).

Had Madison intended to include in the Constitution an American right to possess and carry weapons, he most likely would have included the New Hampshire proposal, which stated “Twelfth, Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.”  (Other proposals for a provision that would actually have protected the right of the individual to possess and carry weapons, which came from Pennsylvania and Massachusetts, never even made it out of their state ratifying conventions in the first place to make it to Madison’s desk.)

91 Responses to Why The Right to Bear Arms is Not an Individual Right

  1. Just a note on the English law referenced. The clause “as allowed by law” makes any such “protection” a paper tiger; just as Illinois’ “subject to the police powers” clause. It means you have a right, unless your elected or appointed leaders decide they don’t want you to have it. It is worthless. It’s a darn good thing that our Second Amendment isn’t worded like that.

    Also, there is an error in the author’s logic. He uses codified law to inform the meaning of wording used in the Constitution, which it cannot do. If we could simply pass a law that changed definitions of words in the Constitution, what power would the Constitution actually have? Legislation defining the word “militia” in no way affects the meaning (or intent) of any part of the Constitution written prior to the legislation. Only a Constitutional Amendment can change the Constitution. That’s why we have the Fourteenth Amendment.

  2. I was about to argue this point by point and show where this guy is completely wrong.

    But then I remembered that I don’t have to. The argument has already been had and decided by the Supreme Court and they say Mr. Massaro loses. That saves me a whole bunch of keystrokes.

    • Except for the fact that Heller and McDonald were close votes that could, and likely will, come up for reconsideration in the future, stare decisis notwithstanding.

      I keep harping on this point for a reason – I’m concerned that a lot of gun owners think that the 2AD issue is a “done-deal” and that gun owners won. Truth be told, it ain’t over. Although Heller and McDonald are important wins, they are fragile precedents. Although the Supreme Court proports to be conducting “legal” analysis, we all know that many of its decisions are driven by pure politics. One or two more democrats on the Court would have resulted in a different decision.

    • Mr. Felix, since you take what the Supreme Court rules as gospel, you must be a staunch abortionist, a staunch supporter of affirmative action, and a staunch supporter of the government’s power to take your private property and give it to another private person, since these are all positions that the Supreme Court currently supports.

    • The “militia” is “We The People”. Should our military be defeated and rendered useless unable to function, then our last line of defense becomes the armed American citizens, that is effectively a militia and quite a formidable one. Ninety million guns will be a powerful force to deal with and even more so once our military experts (our generals and war strategists step in to organize the large arsenal ). So for all the anti 2nd amendment idiots, that insist on a militia, it was clearly meant for “We the people” to be that militia, and a good one we will be!!!

  3. The idea of collective rights was not just contrary to the thinking of the framers it is an idea that they couldn’t even fathom. The founding fathers based their ideas of governance on Locke. Under Locke, rights were only about individuals. The idea of collective rights is derived from Jean Jacque Rousseau’s general will. Other then Jefferson, Franklin and perhaps Adams, the rest of the founders probably never read him. So anybody who argues that the right to bear arms is collective doesn’t understand the environment that existed when the Constitutiion was written.

    Rousseau provides the philosophical basis for modern totalitarianism. The Soviet Constitution was a marvel of collective rights. It just didn’t apply to individuals. Collective rights are subject to “the tragedy of the commons.” If no individual has a right then that right will disapear. That is why the gun control movement claims that the Second Amendment is a collective right.

  4. Mr. Massaro’s chosen citations (and omissions) of US Code are certainly convenient to his position but do little to hide the truth. He makes no mention at all of the core distinciton of the Militia Act of 1792 which states quite clearly that the Militia of the States is more than the organized State Militia and that every able-bodied man is a part of the militia by virtue of his citizenship. This is affirmed, not superseded, by the 1903 Dick Act with its deliberate mention of the “unorganized militia” of private citizens, but Mr. Massaro seems to pretend that any reference to the “unorganized militia” simply does not exist. Additionally, in no way do the Acts of 1792, 1808, 0r 1903 mentioned in the excerpt give Congress any authority over the very existence of the Militia, since per Article I, congress creates no Militia by edict but can merely assist with their “organization”; the Militia is a separate entity from Congress, predating their formation and composed agents of each States and of the citizenry, wholly distinct from any arm of the Federal government as written in the Constitution or US Code. The extent of the Federal government’s control (the ability to “organize” from Article I) over the Militia is call them to action.

    One thing that stands out about many anti-Second Amendment arguments is how reliant they are on the most minute semantics (witness Mr. Massaro’s attempts to mark a vast distinction between “people” and “persons” in the Constitution) yet they quickly ignore any discussion over the definition and purpose of the Amendment’s “well-regulated militia” prefatory clause. In fact, the intent of the prefatory clause was known and held long before the Supreme Court affirmed it in the Heller ruling. “Well-regulated” has nothing to do with any explicit Organized State Militia or even with any oversight of the citizen militia but rather simply with readiness; in the English of the 1790s, “well-regulated” simply meant competent. Uses to this effect are found throughout period literature (an example might be “this truth would be readily apparent to any man of well-regulated faculties”). The idea that the prefatory clause refers to state control over the keeping of arms as a purely twentieth-century invention, yet anti-Second Amendment advocates treat it as gospel in their discussions of the Framers’ intent.

    More distressing, though, is Mr. Massaro’s semantic nit-picking underscores a larger distrust of the very Constitution by anti-Second Amendment groups and the American political Left. Madison and the Framers did not indend for the Constitution to be a piece of arcana or to lay down nebulous rules for the government of the United States; instead these brilliant men wrote deliberately and distinctly such that each citizen could understand the laws of America’s government, and most importantly that no future government should ever misunderstand that Congress shall make no laws prohibiting America’s citizens from living as free men. For the Left in this country to so gleefully search for perceived inconsistencies and errors in the very core of the American belief shows just how little respect people like Mr. Massaro have for both their fellow citizens and the country that affords them the very freedoms they try so hard to tear down.

    • I find it interesting that he spent three paragraphs explaining in long circles what “bear arms” means, completely ignoring and omitting that the words “keep and” appear just before it. I could quite easily make the same long circular arguments in favor that any person can “keep” a firearm even if unable to “bear” said firearm. I am sure that in some academic circles waxing on poetically about the specific etymology of the work “keep” or the linguistic implications of having the word “and” in between would be very impressive. For this audience, I’m pretty sure we don’t need three paragraphs to understand what it means to keep something.

    • Congress is the entity that defines the Militia’s composition. Anyway, if you want to tie the definition of the unorganized Militia to a supposed Second Amendment right to possess and carry weapons, then only one fourth of Americans have it, since the unorganized Militia is comprised of only one fourth of all Americans.

  5. Sounds to me like some shyster trying to re-define terms just to weasel his way into an imaginary loophole. The Constitution isn’t rocket science.

    “No freeman shall be debarred the use of arms.”
    – Thomas Jefferson

    See how easy that was?

      • Nowhere in the Constitution does it expressly permit the government to make rules about ownership of firearms, nor does it prohibit the people from owning weapons. If it isn’t in Article 1, Section 8 it is not a power granted to the legislative authority of the federal government. The 10th amendment formalized that reality. The people reserve not just the rights listed in the first 9 amendments but all powers not granted to the federal government.

        The Constitution is not a permission list for the people, but rather the government. The first 10 amendments were added to clarify certain specific liberties, again not for collectives but for individuals and not as an all inclusive list.

  6. I think the forest is lost through the trees on 2nd amendment arguments. Amendments to the constitution, particularly the early ones, are about establishing and supporting equality with respect to the functions of life in a society among all people. This equality is contrary to and in spite of innate personal differences in philosophy and inborn conditions. This concept is an ethical choice that is the hallmark of “civilized” societies. There are amendments which establish equal rights under different religions, political philosophies, races, and genders. The 2nd establishes equal rights among those of different strength. Without allowing people the means to defend themselves you support a system where the strong can by mere desire dominate the weak. The weak have no say in such a transaction and no protection, since the nature of dominance over the weak by the strong can be as instantaneous as a mugging, with no time for state intervention. That is not a condition of equality.

    -D

  7. I find it ruefully amusing that the same people who invent new rights out of “emanations and penumbras” go to such lengths to deny a freedom spelled out in black and white.

  8. In the brave, new Massaroworld, slavery is freedom, war is peace and stupid is smart. And boy, is Massaro smart. Not that it matters. Being a former assistant football coach at Stony Brook is like being a former assistant fry cook at Mickey D’s.

  9. By collective rights we mean something associated with the militia as it was understood in the 1790s. Naturally you guys have a lot invested in debunking this, because otherwise the 2A has no value to you whatever, which is exactly what I think.

    My new co-blogger has been all over this lately. You know where we are, even Ralph.

    • Since the militia in the 1790s was understood to be every adult male we have no need to debunk it (except by extending it to include women).

      • You’re incorrect. The 1792 Act defined the Militia as all able-bodied white males 18-45 years of age. This meant only one-fourth of the population (excluding blacks) comprised the Militia. Moreover, this meant that if one became disabled or turned 45, he was no longer a Militia member.

    • “You know where we are, even Ralph.”

      Your interpretation of the US Constitution is about as straight as fusilli, and even less American.

    • Mike my friend you need to go and re-read what I wrote above. The founding fathers had no conception of rights beyond individual rights. The concept of collective rights as applied in the US is strictly a 20th Century innovation by so-called Progressives, i.e., supporters of virtually every totalitarian movement that arose in past 100 years or so. Affirmative action introduced the concept of collective rights when it binned people into groups for the purpose of the division of the spoils. It was a perversion of the Civil Rights movement which was firmly anchored in the founders’ concept of individual rights. You know “the content of one’s character and not the color of one’s skin.”

      Collective rights are a Fascist concept, not an American one rooted in the Constitution.

  10. If those who deny the 2A gives an individual right to keep and carry arms are correct, why don’t they propose and ratify a clarifying amendment?

    • Absolutely! There’s precedent for that in the 19th Amendment. Why is are the anti-gun folks not clamoring for an amendment clearly stating who and what the 2nd Amendment applies to.

  11. The Bible has been nitpicked to death because everyone takes away their own meaning from its mostly ambiguous and symbolic language. And that’s harmless enough since spirituality is a personal matter and one man’s faith isn’t dependent on another’s.

    While the Constitution’s language is a lot clearer, there’s still room for traitors and gun-grabbers (one and the same?) to tear it down by exploiting language loopholes.

    Personally, I always believed one’s political affiliation spoke volumes about every aspect of that person’s morality, intelligence, and character, rather than just his/her “opinion on political issues.” In that same vein, someone’s stance on the Second Amendment speaks volumes about a person as well. You have the logically-challenged, shivering cowards in mikeb’s crowd. These are the kinds of people who would watch you get gang-raped on the streets and not even call the police, who would deny anyone the ability to protect themselves, who fear inanimate hunks of metal and polymer more than the loss of their family to a criminal, who worship at the altar of government and are so content in their chains and obliviousness that they are startled by a person who believes in personal responsibility and self-determination. These loathsome people may appear tolerable in normal, everyday society, but when push comes to shove and our humanity is tested in times of chaos and peril, they show their true, dark colors.

    In my experience, those who believe in and support the Second Amendment are the opposite, and I was not raised in a gun-friendly house, so you can’t say I was raised to like guns. I didn’t get into firearms until I moved to PA in my mid-twenties a few years ago. The incredibly vast majority of gun enthusiasts I meet are fantastic, personable people who go out of their way to be proverbial good neighbors. There’s no place I feel safer than at a gun show, even when I’m not carrying.

    Your support or lack of support of the Second Amendment and Constitution as a whole is a natural extension of your true character.

    Are there exceptions? Sure. Some gun-grabbers are fine people, but are simply misled, or running from something psychological. And some 2A enthusiasts are nutballs or man-children who get their jollies by holding a weapon of power. But I’m simply speaking about a vast majority.

    This all may be off-topic, but in a way it suggests the Framer’s state of mind. Personal freedom and self-determination were the cornerstones of the American Revolution. Why would anyone thus believe that the Framers would use the 2A to hand deadly power back to governmental control from the individual?

  12. tdiinva says: “The idea of collective rights was not just contrary to the thinking of the framers it is an idea that they couldn’t even fathom. The founding fathers based their ideas of governance on Locke. Under Locke, rights were only about individuals.”

    You are stating an absurdity. The Revolutionary War was the exercise of a collective right: the right to overthrow one government in favor of a new one. The first three words of the U.S. Constitution are “We The People.” Representative government and majority rule are collective rights. Without them, individual rights exist mainly in theory. Locke was obsessed with the collective rights of free people: See Chapters X through XV of his Second Treatise on Government.

    • “We the People…do ordain and establish….” This is not a statement of any collective right, but a statement by the collective announcing the constitution which follows.

      “Majority rule.” Speaking of the constitution, where do you see that? Is there anything you state which is based in fact?

      And, who do representatives represent? The collective? Nice try, but no. If there were a representative of the collective, it would be just that, *a* representative. There is only one collective, there could only be one individual representing it.

      Having made statements such as yours, you might refrain from calling those of others absurd.

    • Fourth Amendment – Protection from unreasonable search and seizure.

      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      Are you saying that that to be free from illegal search belongs ONLY to a “Collective”?

      • “The right of the PEOPLE (not PERSONS or PERSON) to be secure in their PERSONS (not PEOPLE), houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the PERSONS (not PEOPLE) or things to be seized.”

        The Fourth Amendment is an individual right by means of the words “persons” and “person”.

        These differing uses of “person”, “persons”, and “people” are consistent with those in the state constitutions that were adopted before the United States Constitution.

  13. “Why would anyone thus believe that the Framers would use the 2A to hand deadly power back to governmental control from the individual?”

    Kudos to Silver – best response yet!

  14. Well Magoo, it is better to be vaguely right then precisely wrong. You are precisely wrong. The collective right that you refer to is a right to remove a government that has lost the consent of the governed through its violation of individual rights. The Bill of Rights are all prohibition on the illegitimate use of power by the central government to restrict the exercise of individual rights. If the government were to use its power to curtail these liberties then the people have a collective right to overthrow the government. How would they do this? Through the exercise of their individual right to bear arms in defense of their liberties.

    • You are evading the point and talking in circles. First you say there are no collective rights, then you say there are. Which is it?

      • Magoo,

        Actually it is pretty clear unless you would rather not understand in an attempt to avoid acknowledging that your position is inherently flawed.

        The bill of rights is about pre-existing rights of persons

    • Again, the “Bill of Rights” contains no such words. It is entitled simply “Amendments to the Constitution of the United States”. On the actual original document that contains the amendments that were sent to the states for ratification in 1789, there are actually 12 amendments. The first one (relevant to increases in representation in the House of Representatives) was never ratified, and the “second” amendment (prohibiting members of Congress from increasing their own pay) was not ratified until 1992 and is now the Twenty-Seventh Amendment. These are not individual rights. This means that the Second Amendment was actually the “fourth” amendment as proposed to the states. This refutes the assertion by many individual-right proponents that the Second Amendment is such because it is second in importance to the First Amendment (unless an individual-right proponent wants to argue that having a Congress that cannot give itself a pay raise is a more valuable “individual” right than that of possessing and carrying a weapon).

  15. Most of the notions Massaro uses have already been debated and disabused. See especially the comments with regard to Federalist 46.

    The right to bear arms is not just about foreign invasion. The revolutionaries of the 1790s who were our Founding Fathers wanted the people to be better armed than the Feds so we could, as needed to combat tyranny, wage war against our own government. This revolutionary line of thinking is completely incompatible with the revisionist interpretation that Massaro is selling.

    Whether the ideas of these violent revolutionaries are still valid is separate discussion…

    • Madison says in no uncertain terms that one quarter of the population is “able to bear arms”. Again, this makes sense only if “bear arms” means “render military service” and not “carry weapons”.

      And again, as only one example of many, the Virginia Proposed Declaration of Rights (June 27, 1788), which was intended to be an amendment to the United States Constitution, stated, “That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead.”

      Since it would be absurd for the government to require a person to pay another person to carry weapons for the personal use of the former in the former’s stead, the only plausible definition of “bear arms” in Virginia, the land of Thomas Jefferson and James Madison, was “render military service”.

  16. Then Massaro, Mike and Magoo must have been in rapture to hear Mitt Romney state that “corporations are people” a few days ago. And must have loved the Citizen United case that gave corporations the same rights to free speech as individuals.

    Romney and the Roberts court, and Massaro, Mike and Magoo are all wrong. As long as I’m the individual paying the taxes, it’s me that has the right to own and carry a gun. When the “collective” starts writing checks to the IRS for me every quarter, then we can start talking about collective rights.

    • Collective rights and “corporate rights”as in the recent Supreme Court ruling are two totally different things. Collective rights are those held by the people in common, as in “we the people.” A corporation is an incorporated enterprise.

      • Yes, I know that. The issue is that rights ultimately reside with the individual. Corporations are legal constructs that, in my view, have no business using profits generated by employees to finance candidates and issues that may be opposed to the best interests of those employees, or that should be paid out as dividends to shareholders who may not agree with the political stance of the board of directors.

        The “collective” in collective rights is an ill-defined concept. Since you’re going to the Preamble, if “we the people” is the collective, and the militia is also the collective, and the militia is all males of a certain age, then are only the beneficiaries of the Blessings of Liberty only those same men? I’m guessing you’d disagree. “We the People” means those blessings are for all of us, mercifully. And getting those blessings to apply to all Americans has been a struggle for 200 years.

        In my mind, a right isn’t a right unless it can be exercised by an individual.

        • Fine. What does any of that have to do with your assertion that I favor the recent “corporate rights” ruling? How did you even get there?

        • Well, if I wanted to get rid of the individual right, the first thing I’d do is look for other cases where the right also applies to some entity other than the individual. The militia is a legal construct just like a corporation… Ah, screw it. I support the right of individuals to own and carry firearms. I’m not going to give any help to the gun banners’ argument.

  17. I am trying to get my arms around “the right to bear arms shall not be infringed” as a collective right. Does that mean the Military and the police represent our collective right to bear arms? Sort of like the People’s Liberation Army or the Peoples Armed Police. Perhaps it means that we pick citizens by lot or maybe elect people to bear arms in our name? Perhaps Magoo, who is obviously the smartest person in the room, can enlighten us as to how the people collectively and not individually have the uninfringed right to bear arms.

      • Magoo:

        I don’t want to read someone else’s losing legal opinion. I want you to explain the meaning of the collective right to bear arms. The right to bear arms is not expressed in society when the Military and other security elements are armed.

        • Why? What’s the point? According to you, collective rights are “fascist” and didn’t exist until the 20th century. These are absurdities. We can’t have a real conversation. This is like trying to discuss natural selection with a creationist. You have no clue, and no clue that you have no clue.

          And now you say you can’t be bothered to read the court decisions, where your question is answered in part. Gee, what a surprise. Who didn’t see that coming.

        • I’ve read it, and it is not particularly persuasive. It smacks of people justifying their political beliefs just as 95% of supreme court rulings from the last 10 or 15 years.

          As to calling the dissent a decision…decision implies that some course of action was taken…since it is a dissent it is meaningless except to explain their displeasure with the majority so to call the dissents decisions really doesn’t make sense

        • Magoo:

          I can read a Court opinion — winner or loser. That is not what I was asking. I want you to define it. Citing what someone else in a losing opinion wrote shows you don’t have any idea of what you are talking about. You are hiding behind a smokescreen to avoid answering a simple direct question. If you can’t come up on your own with a simple explanation of what the collective right of the people to bear arms means then you don’t know what it is.

        • Never mind all that. I got you to understand that collective rights are not a “fascist” development of the 20th century, that in fact the concept goes back to Locke and before. I think my work is done here.

        • Not an answer just more evasion.

          One more time: what does the collective right of the people to bear arms shall be infringed mean. Spell it out. If you can’t say in simple words you don’t know what it is.

          The collective right you speak of in Locke is a different kind of right. It the right of a collective (the people) against the infringement of a collective (the State). That is not the kind of right that is spelled out in the Bill of Rights.

        • So what your saying, is that what was the original draft of what became the second amendment, which was clearly written as a collective right, was then replaced by what exists today, the founding fathers made a mistake by their actions, speaking louder than your words and unsubstantiated beliefs?

  18. Former – Assistant – Gym – Teacher.

    A job description renown for respect for individual rights, intellectual argument and watching young boys shower.

    What allows him any pretense of legal scholarship? Was his gym accoss the street from a prison law library?

  19. The anti gunners desperately want to keep this idea alive because it’s the only thing they have to refute our Second Amendment rights.
    When Heller is mentioned they quickly cry split decision. What they always fail to mention is that the split was over whether to overturn the Washington DC gun ban. The court also as part of their deliberation issued a finding that the 2A was in fact referring to an individual right. And that finding was decided 9 to zero.

  20. “A well regulated militia, . . .”

    (a desired goal, one among many)

    “being necessary to the security of a free State, . . .”

    (a requirement of freedom is the potential use of force)

    “the right of the people to keep and bear Arms, . . .”

    (this is you and me ladies and gentleman, we possess our Arms and we are able to live free from fear of the criminal, the rioter, and a tyrannical government.

    “shall not be infringed . . .”

    (Under no circumstances can our Arms be taken from us)

  21. TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311

    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
    (b) The classes of the militia are—
    (1) the organized militia, which consists of the National Guard and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

    Obviously the “author” can dissassemble the Constitution with ease, but quickly forgets part of the “law” that he quotes. The “militia” predates the US by quite a number of years (150+) and the “militia” is NOT just the National Guard as the “author” professes. A quick read of the law clears that up in a hurry. Cherry-picking the words (person, persons, people) and then cherry-picking “parts” of laws generally, in my mind at least, refutes you whole argument. Unless you are going to argue that “well, I was partially right, so the whole article is correct”

    • Again, even the unorganized Militia is only one fourth of the population. It excludes all women, all of those under 17 and over 45, and those who are and who become disabled. This sounds like an awfully exclusive group of holders of a supposed Second Amendment individual right to possess and carry weapons.

  22. The Supreme Court “Heller” decision is very brief, but the Massaro arguments were each clearly addressed (and refuted) in the Circuit Court decision “Parker v District of Columbia”, which decision Wash. DC appealed to the supreme court, resulting in “Heller”. Just read that case and Massaro’s “selective” use of portions of the 2nd amendment are exposed as sophistry.

  23. Congress of the United States
    begun and held at the City of New-York, on
    Wednesday the fourth of March, one thousand seven hundred and eighty nine.

    “THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
    RESOLVED….”

    Amendment II “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.”

    http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

  24. Listen guys, you’re getting way carried away. The argument of collective vs. individual is useful to the pro-gun side because it deflects our attention from the fundamental point. That point is that owning your own musket and agreeing to participate in the militia in 1790 or 1801, which is what the 2A was about, has absolutely nothing to do with the modern so-called right to own a gun.

    And besides if guns are so good and so useful why do you have to keep citing an archaic writing that has, at best, a debatable justification for owning them? If a gun is just another tool, you should have the same right to owning it as you do anything else. But you don’t because guns are fucking dangerous. Even your buddies on the Supreme Court, bought and paid for by the NRA, said reasonable restrictions are appropriate.

    They didn’t say reasonable restrictions are needed for hammers or saws, but they did for guns. Go figure.

    • “Listen guys, you’re getting way carried away. The argument of collective vs. individual is useful to the pro-gun side because it deflects our attention from the fundamental point….”

      Translation: I’ve lost the argument and would therefore like to dismiss it as irrelevant.

      “And besides if guns are so good and so useful why do you have to keep citing an archaic writing…”

      Because that “archaic writing” is the foundation of all our laws. Do you really not understand that, or are you just being deliberately obtuse?

      “Even your buddies on the Supreme Court, bought and paid for by the NRA…”

      Care to cite some evidence to support that libel? Sorry, that’s a silly question… of course you don’t.

    • Mike:

      If you argument is that the Second Amendment is obsolete then you should arguing that we ought to remove archaic language from the Constitution. While I disagree with you on whether the core issue, I would encourage you to start a movement to repeal the Second Amendment. That would be the honest thing to do.

      From a operational point of view the orginal militia concept had proven a failure by the Blackhawk War 1836. A citizens militia lack the training and cohesion to be an effective fighting force. It became even more so as military technology and tactics advanced. From the Mexican War through the Spanish American War regular forces were augmented by State raised US Volunteers. Over time these units developed the skills and cohesion that equaled regular soldiers. The defect in the volunteer system was that commisions were bought and sold as political patronage to the detrement of military effective. Woodrow Wilson did away with system by federalizing the National Guard and initiating a draft for a national army. The National Guard now exists as a standing organization of US Volunteers controled by the states but are available for national military missions.

    • Listen guys, you’re getting way carried away. The argument of collective vs. individual is useful to the pro-radio side because it deflects our attention from the fundamental point. That point is that owning your own Ham Radio and agreeing to participate in the Emergency Communications in 1934 or 1936, which is what the Communications Act of 1934 was about, has absolutely nothing to do with the modern so-called right to own a ham radio.

      And besides if ham radio are so good and so useful why do you have to keep citing an archaic writing (Communications Act of 1934) that has, at best, a debatable justification for owning them? If a Ham radio is just another tool, you should have the same right to owning it as you do anything else. But you don’t because ham radios are fucking dangerous. Even your buddies on the Supreme Court, bought and paid for by the ARRL, said reasonable restrictions are appropriate.

      They didn’t say reasonable restrictions are needed for hammers or saws, but they did for ham radios. Go figure.

      http://en.wikipedia.org/wiki/FCC
      http://en.wikipedia.org/wiki/Communications_Act_of_1934

      Wow,regulations…just about everywhere.

    • You’re right Mike. This is getting carried away. I’m going to make another donation to the NRA and SAF today so they can fight to keep your pseudo-scholarship away from my individual rights.

    • LOL, they did not say the current restrictions, 20,000 plus were reasonable to begin with now did they, which has the anti’s all in twitters as we begin to repeal all those useless laws, lol.

  25. Anyone who argues FOR the existence of collective rights is someone who is ultimately arguing against the whole concept of individual rights.

    The mob will eventually claim all rights for itself, leaving the individual bereft.

    As others have stated:
    There is no such thing as a collective right. The concept of a collective right is used by governments to take and use power, effectively stripping rights from people.

    If a collective right did exist, government would be the entity to claim it, and governments have no rights; not even the right to exist. The US Constitution is very careful about the use of that word, and nowhere is any government entity ever conferred a right in that document, nor in the Declaration of Independence.

    Something that appears to be similar to a right, yet is fundamentally different, is the ability of government to exercise power and authority to protect its own interests. Many people mistake the exercise of power to be a right; i.e. the right to tax, the right of states, eminent domain, etc. These are all examples of exercising power and not rights.

    Back to the concept of rights:
    * A right is not cumulative – for example, a group of people has no greater right to free speech than an individual.
    * A right cannot be delegated – Like responsibility, one person cannot transfer their own rights to another. Power and authority can be delegated, the responsibility cannot. This whole concept is well established in the military.
    * A right is not collective – a collective right directly implies that the right would not exist outside of the group and would not exist absent the group’s consent. This is a direct contradiction of the definition of a right, and “the group” would necessarily devolve to “the government” (an entity incapable of having rights).

    Our government is intended to protect our individual rights, liberties and freedoms. This purpose is explicitly stated in the Declaration of Independence: “…to secure these rights, Governments are instituted among Men, …”.

  26. I see this mistake often, and even among our side. “This despite the fact that all of the other Amendments in the so-called Bill of Rights confer individual rights.” The Bill of Rights does not confer, grant, of bestow any Rights. It only guarantees our pre-existing natural rights. Rights cannot be granted to men by other men.

  27. The very idea of “collective” Rights is a socialist/communist construct & therefore most assuredly NOT something likely to appeal to those who wrote the US Constitution.

    The ramblings of an ex university football coach aren’t really of any consequence when held up against the writings & intent of those who founded the nation.

    Silly chap.

  28. Here is a question for all of us to ponder. Was the militia Act of 1792, which not only had a firearms mandate, compelled military drills on a regular basis, that is, required military service, an implementing law for the Second Amendment or is it already authorized by Article I powers? If the later is true then why have a Second Amendment at all if not to protect individual citizens right to bear arms? If the former then the Second Amendment is the constitutional basis for compulsory military service. Without the Second a draft would be unconstitutional. Read this way then the individual right to bear arms is guarenteed so that citizens will be better prepared for military service if drafted. This is born out by the high standard of marksmanship exhibited by the US infantryman in both world wars. In both wars the average American GI could out shoot other nations’ professional soldiers after completing basic training.

    • The more I think about this, the more I think it was all about money. Like it or not, our Founding Father were politicians. The Constitution states that Congress has to “provide” for arming the militia. That means a lot of money for guns and equipment. Correct my dates if I’m wrong, but the Constitution gets adopted in 1787. The country doesn’t have much money, and they need to come up with some for the arms and equipment for the militia. The income tax doesn’t get into the amendments until 1913! Now, Americans in 1787 have muskets, maybe some pistols and a few swords, not all, but at least some for a variety of reasons — hunting, self-defense, etc. And the new Congress understands that having arms is a natural right that all people have, whether their kings allow that right or not. You know, the Age of Enlightenment. So, why not save some money, and create the condition that the militia will be armed by each person supplying his own musket? Isn’t that really what the 2nd Amendment does? Militias are important, and need to be armed. But the cost and logistics of having arms for everyone that could be in the militia is a big problem. In 1791, Congress adds the 2nd Amendment to make sure that the natural right for people to own and use arms will not be infringed by the US government. Great! People have to buy their own guns! Then it dawned on Congress that some people still showed up for militia practice with pitchforks. So, they pass the Militia Act in 1792 to define exactly what you had to have when you reported for militia: a musket or flintlock in good condition, a knapsack, a bayonet, yada yada…

      The whole idea of a “collective” right is sketchy and very controversial, even more so outside of the right to arm yourself. In America, rights apply to individuals, and aren’t given to us by our Constitution, but protected by it. Rights are also not — or should not be — subjected to a test of utility, which is whether or not their free exercise leads to some perceived net benefit to society. Is our right to choose our own religion good or bad for our society in 2011? We don’t ask that question, and for good reason. But when gun banners point to a body count and ask how can we support the things that are causing such pain, they are using an argument about utility whether they know it or not. Gun banners don’t care if one person saves her life with a hand gun because of the individual freedom. They are willing to sacrifice a few unarmed individuals for their vision of an ideal society.

  29. I’m waiting for one of you guys to say, “You know the more I think about it, the more I realize those anti 2A guys have a point.” But I guess I’ll have a long wait, huh?

    I honestly don’t understand why you cite the 2A. The Copnstitution may be the founding document of our laws, or whatever someone said up there, but that doesn’t mean every thing in it is applicable to today’s world. There are plenty of examples of things that we’ve outgrown, so to speak. But, gun rights is not even one of them. Manning the militia is what it was all about, period. That has no relevance now.

    You can own guns but there gonna be subject to severe restrictions, and you know why? Because so many of you guys keep fuckin’ up with them, including letting them slip into the criminal world.

    • “I’m waiting for one of you guys to say, “You know the more I think about it, the more I realize those anti 2A guys have a point.”

      Seeing as how we’ve considered your arguments and found them to be invalid yeah, you’ll have a long wait.

      “The Copnstitution may be the founding document of our laws, or whatever someone said up there, but that doesn’t mean every thing in it is applicable to today’s world.”

      You’re wrong. Unless and until it’s amended that’s exactly what it means. That you’re incapable of understanding so simple a point of law goes a long way towards explaining why your arguments aren’t taken seriously.

      “But, gun rights is not even one of them. Manning the militia is what it was all about, period. ”

      Most Americans, including 9 out of 9 Supreme Court justices disagree with you. Period.

      “You can own guns but there (sic) gonna be subject to severe restrictions, and you know why? Because so many of you guys keep fuckin’ up with them, including letting them slip into the criminal world.”

      The trend now is towards more liberal gun laws, and both crime and accidents are down. So that statement is completely untethered from reality.

        • Mike, aren’t you embarrassed to be the kind of guy who answers with a non-sequitur because the substance of your argument is so weak?

          And btw, it isn’t a put down. I just believe in accurate quotation.

    • Us guys keep screwing up and letting them into the bad guys do what? ROTFLMFAO, ROTFLMFAO, ROTFLMFAO, We see you have doubled your normal massive dose of Obama Lama Ding-A-Ling prozac/lad laced koolaide this morning Mike!

      The government acknowledges in USDOJ National Gang Threat Assessment 2009 that 80% of all violent crimes committed in the US each year are committed by career criminals/gang members.

      http://www.justice.gov/ndic/pubs32/32146/index.html

      Suicidal people kinda speak for themselves.

      Shall we review police studies in Chicago and NYC where between 76-80% of those involved in shootings, both shooter and injured were both involved in criminal activity at the time of the incident.

      http://www.popcenter.org/problems/drive_by_shooting/PDFs/Block_and_Block_1993.pdf, http://www.nyc.gov/html/nypd/downloads/pdf/public_information/2007_firearms_discharge_report.pdf, http://www.nyclu.org/files/nypd_firearms_report_102207.pdf

      So when are you going to address those two groups responsible for over 95% of all deaths using a firearm as frankly it is rather stupid not to address the largest reason for a problem, then again, we are talking about progressives here who instead persistently blame the innocent 80 mil law abiding gun owners like a broken, warped, no one listens to record!

      Haynes vs. U.S. 390 U.S. 85 1968, where the US Supreme Court ruled 8-1 in favor of Haynes that any law requiring a felon to self incriminate themselves and violate their 5th amendment rights was not enforceable as a charge for prosecution.

      Hence criminals don’t have to follow the laws that do so, e.g. your stolen weapons, registrations, etc….

      Amazing how the criminals don’t have to obey these laws yet only law-abiding citizens do?

      This just validates the hypocrisy that laws affect only the felons! After all, 20,000 gun laws and we see how effective a piece of legislation is at stopping violence because if it did, there wouldn’t be ANY VIOLENT CRIME.

      Of course we see from the USDOJ Background Check & Firearm transfer report 2008 http://bjs.ojp.usdoj.gov/content/pub/html/bcft/2008/bcft08st.pdf Brady Check report that of the 99 million checks for purchases from licensed sources only, since 1994.

      We see a total of 1.67 million valid rejections, a 68% decrease in felons attempting to buy from a licensed source, and 58% of those rejected being felons. We see that between 2000-2008 only 13,024 were prosecuted, or less than 1%.

      We of course see how the anti gun lobby claims such effectiveness of this pathetically useless law with the hard data they can present that the 1.66 million plus who weren’t prosecuted then didn’t go and buy from an unlicensed source?

      We also see how the USDOJ survey in 1997 where felons identified purchasing their weapons from 80% street buys, 12% retail stores, 2% gun shows.

      Then that 68% reduction of attempted buys from licensed sources puts the street buys/theft at 95.52%, 3.64% retail stores, .64% gun shows in today’s numbers.

      Firearm Use by Offenders, Bureau of Justice Statistics, November 2001 http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=940.

      Amazing how ineffective that poster child of futility is and this trend is similar with ALL gun control laws that are NOT ENFORCED BY THE BATF, GOVERNMENT, JUDGES, PROSECUTING ATTORNEYS, and POLICE.

      Yet more laws will prevent criminals and terrorists from getting a firearm, ROTFLMFAO, uh yeah, and the moon is made of cheese and the sun rises in the west and sets in the east, right!

      Why is it that the BATF consistently allows those felones using fake identifications to 100% successfully pass the background check? Or can you prove the NRA and the 80 mil law abiding gun owners are in charge of the BATF or all the police stations eh?

      http://www.cbsnews.com/stories/2001/03/21/national/main280557.shtml

      By the way, how many of those mass shooters could have been stopped had a doctor or someone in authority did their job eh? So the doctors and officers who had opportunities to stop Cho (Va Tech), the N Illinois shooter, the Major at Ft Hood, and now the sheriff who failed to do his job in Arizona?

      Guess you will insist that it was the NRA or 80 million law abiding gun owners responsible for those failures to notify or enforce the laws instead of the government & BATF who failed to do so right?

      Poor Mikey, no government data to refute that above, no facts to refute that above, poor mikey, sucks to be you!

    • The second amendment as RATIFIED by the state’s.

      “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.”

      Maybe you can explain how for the entire history of English language, that the independent clause of a complex sentence, has always set the meaning of the complex sentence. (“the right of the People to keep and bear arms shall not be infringed”)

      Yet mikey now claims the dependent clause is the determinator of the complex sentence meaning and history and English scholars have all been wrong throughout the history of written English. Have at it mikey, but warn us when Hades will be freezing over for you actually having data to support your claim.

      Lets see, have you removed the 30 plus references from the congressional writings 1774-1789 & the federalist papers showing well regulated as to meaning well trained in the arts of war? Much less all those dictionaries that say the same thing? No, you haven’t. Reference Karpeles Museum, CA.

      Maybe you removed that original draft of what became the second amendment. You know, the one that was clearly written as a collective right, but then was changed to what exists today.

      Why did our founding fathers change the amendment draft if it was what they wanted? Oh that’s right, actions do speak louder than words. Ref Karpeles Museum, CA again.

      Then of course, here is the logic failure the anti’s always have. They always fail to prove, that the militia existed prior to the armed individual. See that is the only logical way, they can argue that a person is armed because the militia existed first. Since it did not, sucks again to be you mikey as we don’t care what you irrelevant beliefs and opinions are, only what you can prove.

      Sucks when you can’t disprove any of the above doesn’t it?

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