5 Types of Gun Laws That The Founding Fathers Supported. Or Not . . .

Fordham Prof. Saul Cornell

courtesy cornell.edu

The words “the right to keep and bear arms shall not be infringed” seem pretty clear to me. The fact that gun control advocates, judges, police and politicians ignore them would come as no surprise to the Founding Fathers. Nor, I suspect, would they be taken aback by an article in a publication owned by a billionaire politician that claims that they supported gun control. If they’d known the word, they would certainly have credited businessinsider.com with chutzpah for offering the following . . .

The framers and adopters of the Second Amendment were generally ardent supporters of the idea of well-regulated liberty. Without strong governments and effective laws, they believed, liberty inevitably degenerated into licentiousness and eventually anarchy. Diligent students of history, particularly Roman history, the Federalists who wrote the Constitution realized that tyranny more often resulted from anarchy, not strong government.

Well there’s a major WTF from Fordham University law professor and Joyce Foundation fund-sucker Saul Cornell (above). ‘Cause there I was thinking that the Founding Fathers considered a “strong” government the greatest threat to individual liberty — resulting in a constitution that’s almost entirely composed of limitations on that government power.

And down the rabbit hole we go! Here are some relevant excerpts for your dining and dancing pleasure. Rather than fisking them one-by-one, I’ll leave it to TTAG’s Armed Intelligentsia to tear Mr. Cornell a new one. Because, I mean, c’mon. Really?

#1: Registration

All of the colonies – apart from Quaker-dominated Pennsylvania, the one colony in which religious pacifists blocked the creation of a militia – enrolled local citizens, white men between the ages of 16-60 in state-regulated militias. The colonies and then the newly independent states kept track of these privately owned weapons  required for militia service. Men could be fined if they reported to a muster without a well-maintained weapon in working condition.

#2: Public carry

There was no general right of armed travel when the Second Amendment was adopted, and certainly no right to travel with concealed weapons. Such a right first emerged in the United States in the slave South decades after the Second Amendment was adopted. The market revolution of the early 19th century made cheap and reliable hand guns readily available. Southern murder rates soared as a result.

#3: Stand-your-ground laws

Under traditional English common law, one had a duty to retreat, not stand your ground. Deadly force was justified only if no other alternative was possible. One had to retreat, until retreat was no longer possible, before killing an aggressor.

The use of deadly force was justified only in the home, where retreat was not required under the so-called castle doctrine, or the idea that “a man’s home is his castle.” The emergence of a more aggressive view of the right of self-defense in public, standing your ground, emerged slowly in the decades after the Civil War.

#4: Safe storage laws

Although some gun rights advocates attempt to demonize government power, it is important to recognize that one of the most important rights citizens enjoy is the freedom to elect representatives who can enact laws to promote health and public safety. This is the foundation for the idea of ordered liberty. The regulation of gun powder and firearms arises from an exercise of this basic liberty.

In 1786, Boston acted on this legal principle, prohibiting the storage of a loaded firearm in any domestic dwelling in the city. Guns had to be kept unloaded, a practice that made sense since the black powder used in firearms in this period was corrosive. Loaded guns also posed a particular hazard in cases of fire because they might discharge and injure innocent bystanders and those fighting fires.

#5: Loyalty oaths

One of the most common claims one hears in the modern Second Amendment debate is the assertion that the Founders included this provision in the Constitution to make possible a right of revolution. But this claim, too, rests on a serious misunderstanding of the role the right to bear arms played in American constitutional theory.

In fact, the Founders engaged in large-scale disarmament of the civilian population during the American Revolution. The right to bear arms was conditional on swearing a loyalty oath to the government. Individuals who refused to swear such an oath were disarmed.

The notion that the Second Amendment was understood to protect a right to take up arms against the government is absurd. Indeed, the Constitution itself defines such an act as treason.

Gun regulation and gun ownership have always existed side by side in American history. The Second Amendment poses no obstacle to enacting sensible gun laws. The failure to do so is not the Constitution’s fault; it is ours.

That, my friends, is a whole lot of BS. As I said above, I’ll leave it to greater minds than my own to pull the proverbial rug from underneath Mr. Cornell’s metaphorical feet. But I will say this about all that . . .

When the ends justify the means, the irrational becomes rational, and scholars become propagandists. Ipso flipping facto.

comments

  1. avatar pwrserge says:

    Commie scumbag is gonna commie. What he forgets is that after his glorious SJW revolution, vermin like him are stood up against the wall and shot.

    1. avatar Binder says:

      Come on, he is arguing that everyone should own a well maintained m4 or m16 with a full load out and provide state funded training sessions so that they know how to use it. That is not the worse idea I ever heard.

      1. avatar Splic3r says:

        Man, those armorers are going to have a massIve power trip when they can tell the entire town “more carbon in the locking lugs still, come back when it’s actually clean”

  2. avatar Onyx's valet says:

    .A firing squad is a soldier’s death. Considered honorable. You hang traitors, spy’s and war criminals.

    Onyx is my dog.

    1. avatar Aaron M. Walker says:

      …More like Free Helicopter rides for Liberals….The guillotine would be a good choice….

      1. avatar Mack Bolan says:

        Ovens. Use them to drive the machines of industry.

        1. avatar Smithers says:

          That sounds like Nazi talk. I guess freedom of speech doesn’t play well here. Only hate speech. Selective constitutionalism.

        2. avatar Geoff PR says:

          “I guess freedom of speech doesn’t play well here.”

          It plays very well here. Your comment won’t disappear.

          ‘Freedom of speech’ *includes* speech you disagree with, or even find distasteful.

          That’s a concept someone as narrow-minded as you is incapable of grasping, since it looks like *you* seem to think you are the one who gets to decide what speech meets *your* standards.

          Serge, spool up the ‘Little Bird’ for this one…

        3. avatar California Richard says:

          Go read an article on any major news site and read the comments at the bottom… we’ll wait… it wont take that long because all the major news outlets have shut down their comments sections. Unlike RF, who relys on the readers to fisk out the truth of the articles and make comments, the MSM seems to only want a one way “conversation”. Howse that for snuffing out the 1st amendment. If you complain here, we’ll read it. Not so in other places whose articles/ideas you may actually agree with.

        4. avatar Scoutino says:

          Smithers, First amendment protects your freedom of speech against government. It doesn’t apply here. This is private blog in which owner can set his own rules.

  3. avatar FedUp says:

    The fact that gun control advocates, judges, police and politicians ignore them would come as no surprise to the Founding Fathers.

    The fact that we let them live would be a huge disappointment to the Rebels/Founders.

    I’m reminded of those bumper stickers I started seeing around 1975-1976 when everybody was thinking about the 200th anniversary of the Declaration: If the Founding Fathers Were Here Today, They’d Start a Revolution

    1. avatar Geoff PR says:

      “I’m reminded of those bumper stickers I started seeing around 1975-1976 when everybody was thinking about the 200th anniversary of the Declaration: If the Founding Fathers Were Here Today, They’d Start a Revolution”

      I clearly remember another from that time period :

      “America – Love it or leave it.”

      Let’s take them up on that one. Persuasion can take numerous and creative forms.

      Some polite, others, not so much… 😉

  4. avatar crndl says:

    He must be smart, look at all those nice books behind him.

    1. avatar BLoving says:

      They’re either a printed facade he’s posing In front of, or none of them are books on history or constitutional law.
      “The emergence of a more aggressive view of the right of self-defense in public, standing your ground, emerged slowly in the decades after the Civil War.”
      Know what else became legally fashionable after that war? Gun owner control laws to prevent those recently freed black people from owning guns – all carefully written (some were quite plain in what classes were targeted) to make sure that blacks, but not whites, would be unable to exercise their civil right of self-defense.
      🤠

      1. avatar Mark N. says:

        The picture was taken in a law library, and the books are annotated codes, something always found in a law library. Take a gander at how many books there are and what that means for the state of regulation here.

        1. avatar A O says:

          The scent of many leather-bound books and rich mahogany wood.

          I’m amazed this dip didn’t want to stand up for the rights of those dead animals and trees used to make that excellent room

    2. avatar BLoving says:

      “In fact, the Founders engaged in large-scale disarmament of the civilian population during the American Revolution. The right to bear arms was conditional on swearing a loyalty oath to the government. Individuals who refused to swear such an oath were disarmed.”
      He linked an excerpt from the autobiography of John Adams, who described a practice that was initiated by some local authorities but was opposed by Adams himself. If Adams was against the small-scale practice in question, I would hardly call that a glowing endorsement of the practice on a larger scale.
      🤠

      1. avatar Mark N. says:

        Even assuming the practice, it would have made sense in the middle of a revolution: the last thing one would want is an armed resistance behind the lines, especially where the revolutionaries/rebels were a distinct minority.

        1. avatar California Richard says:

          *Especially if those armed people propped up a despotic regime. If they took up arms against the revolution and supported the despotic regime, then yes, they are treasonous and should be treated as such. I know this sounds very Robespierre/Mao/Che/Trotsky/etc, but OUR revolution is one of the very few in history that didn’t degenerate in to absolute despotism or immediate civil war.

  5. avatar Tom in Oregon says:

    This idiot obviously never read the Federalist Papers.

    1. avatar Mack Bolan says:

      He probably did, but like most, he had to “interpret” the meaning since they quite clearly didn’t match his world view, or feelz.

      It’s exactly how “Ourselves and Our posterity” became “A Nation of Immigrants” even though the latter phrase didst appear anywhere until 150 years after the Constitution was written.

    2. avatar M1Lou says:

      This is what I find so annoying. The Federalist papers and writings of the period are pretty darn clear on the second amendment. It’s not hard to understand. These people act like the Federalist papers don’t even exist.

  6. avatar Alex Waits says:

    He’s misrepresenting evidence entirely meant to prove the opposite of what he asserts, and then claims it’s fact because it suits his preconceived conclusions, that he alone is smarter then some of the most studied constitutional academics, because it’s what he “feels” is right, so it must be.

    1. avatar California Richard says:

      Maybe he’s establishing that ground work early so when the post of “Director of Ministry of Truth” opens up he can put in his application and references.

      1. avatar Scoutino says:

        He’s got the “freedom is slavery” down pat.

  7. avatar Cruzo1981 says:

    It says here you’re $#!+$ all f_<ked up and you talk like a [email protected] Well, there goes that [email protected] talk we talked about.

  8. avatar ironicatbest says:

    I believe that a lot of armament issues, such as opened or concealed carry were not covered in written law, because the issue never came up when firearms were carried, or could be carried ,by anyone anywhere. The stand your ground law was not relevant, when weeks ago you just drove off a raiding party of native americans.W hen fighting for your life no lines were drawn be it settler or savage A new frontier a different land,firarms were mixed with, hammers,axes, saws and plows. England’s laws do not apply. The second amendment should be read as it is written. No more no less. Shall not be infringed.

  9. avatar Gregolas says:

    He needs to read “The Founders’ Second Amendment” by Stephen P. Halbrook.

  10. avatar Anymouse says:

    The Colonial Army shot and killed British soldiers without first convicting them in a trial of their peers. They probably broke into homes where they thought British soldiers were without obtaining search warrants. Obviously, the Founding Fathers cared nothing about what would become the Bill of Rights.
    Note that #1 was in relation to making sure everybody had a gun of military “caliber.” Only one gun would need to he shown as proof of compliance with mandatory possession, and there’s no indication of wrtten records of how compliance was achieved (no serial # or manufacturer requirements). If the feds passed a law tomorrow that taxed everyone without a militarily useful gun $500 (thanks Obamacare), I don’t think there would be much complaint from here from an anti-gun basis. The issue with registration is it can be used for confiscation. If the list of owners is the phone book, and what/how many is owned, confiscation isn’t really possible.

    1. avatar Redneck farmer says:

      So I have to own an M4A1 with full combat loadout?

      1. avatar Detroiter says:

        I’d guess an AK variant or a bolt gun of 6mm or larger caliber would suffice!

        Right tool for the job!

  11. avatar Specialist38 says:

    I didn’t Tommy Flanagan changed his name…..lmao.

    When you are losing….. just make up a bunch of shit.

    Dayum……

  12. avatar Joe R. says:

    The “Founding Fathers” would kill US for not fing your sh_t up and hunting your family. When we get tired of letting them down, you watch your a_ _.

  13. avatar Bob Watson says:

    “It’s a beautiful thing, the destruction of words.”
    ― George Orwell, 1984
    “Well regulated liberty”.
    ― Saul Cornell, 2017
    Little Saul is a first class, word murdering propagandist.

    1. avatar Joe R. says:

      Just another communist jew intellectual, out to f up America. Nothing to see here.

      His family changed their name to escape communists or facists, so their sucesive generations could try to be one.

      1. avatar Robert Farago says:

        The correct phrase is “Jewish.”

        1. avatar Joe R. says:

          My error. I think some gentiles out here make that mistake in attempting to make it (at least somewhat) ‘singular’, and not throw too big a net.

          I meant no blanket offense, but I stand by my comment about Saul.

          I am Catholic, but believe [absolutely] the Bible’s many recitations that the Jews are GOD’s “Chosen People” (even if we all find out, someday, in Heaven, that you all started that rumor yourselves, it was a good one ; ) GOD, has indeed let-it-stand, and that is good enough for me, and we can all laugh about it later).

  14. avatar What About Bob says:

    Lack of references is disturbing.

    Sounds like a bunch of cherries pulled out of context to me.

    In any case, the 2A is very clear.

    1. avatar Matt in FL says:

      My first thought was “show your work.”

  15. avatar Gov. William J Le Petomane says:

    Since ‘shall not be infringed’ is apparently too ambiguous for some present day supercilious twits, I always fall back on the words of King Leonidas, ‘Molon labe’.

  16. avatar Jim Bullock says:

    Well, I’ll take a shot at rising to RF’s bait dare challenge. Fisking away…

    Doing Neo-Constitutionalist’s spasm justice requires a new hashtag, I think: #TheyJustDidntThinkItThrough — a particular aspect of #WagTheDogWorld. In the movie this comes up when the CIA’s clam “There is no B3 bomber.” results in demonstrating their own irrelevance. Today Neo-Constitutionalist’s “arguments” all backfire spectacularly. It’s like #TheyJustDidntThinkItThrough.

    1 – “Registration is for the militia.” — Great. So, everybody has to demonstrate they own one of those evil “assault weapons.” No religious exceptions like those Quakers back in the day. Maybe we could have the IRS enforce this. (H/T to “Anonymous” above.) #TheyJustDidntThinkItThrough

    2 – “Concealed carry was frowned upon.” — Indeed. Carrying concealed weapons was considered threatening, sketchy, and ill-mannered. Open carry for everyone. I’m good with that.

    When among friends or as a guest, the Irish Sgian Dubh was conventionally tucked into the top of your sock — visible because Kilts, remember? Arguably it evolved from the concealed “armpit dagger” a sneaky, quasi-illegal weapon, hidden in the upper sleeve of a jacket. Carrying the hidden knife was ill-mannered.

    So, everybody needs to open carry the evil death machine the milita requires them to own. I’m OK with that. (#TheyJustDidntThinkItThrough)

    3 – “Standing ground / retreat binary privilege.” — Neo-constitutionalist frames his (ze’s?) non-argument as a rigid binary of extremes. Snark aside, the old-school law is a bit more “nuanced.” “Retreat” didn’t mean “retreat even while chased until cornered without any possibility of evasion”, while “stand your ground” didn’t mean “front off to your ego’s content, and it’s never your fault.”

    Let’s roll back to the old Castle Doctrine, since Neo-Con mentioned that. You knock on my door in the middle of the night uninvited, I can dump boiling oil on your head without waiting for you to break in. #TheyJustDidntThinkItThrough

    4 – “Government is just the word for the things we do together.” (“Safe storage laws.”) —

    Neo-constitutionalist argues that “Government is just the sensible things we do together for the common good.” He declines to make the argument that “safe storage” is sensible. He leaps to the common good A K A “general welfare” — “general welfare” from the preamble — as an enumerated power, which it isn’t.

    It’s worse than that. “General welfare” is a justifying criteria for use of the enumerated powers: your tax had better be in aid of one of these. Indeed, your tax had better be a *net gain* in terms of *all* the goals in the preamble. “General welfare” pursued by regulating arms, imposing in people’s homes seems a high cost in terms of “securing the blessings of liberty for us and our posterity”, or pretty much any of the other desirable outcomes named in the preamble.

    Really, if we’re taking the goals from the preamble as authorization, we really should be arming everybody all the time, to “secure the blessings of liberty for ourselves and our posterity.” Probably roll back 80% of federal laws, and even more regulations. Shut down a few departments. #TheyJustDidntThinkItThrough

    Neo-Constitutionalist there has palmed two more cards, equating varieties of physical safety with the “common good” while ignoring other aspects of the “common good”, and treating the “common good” as som attribute of the people as a whole, of the nation, the culture, the species, rather than aggregating everybody’s individual good, as they each see it.

    “Government is just the word for things we do together”, really means: “Government is just the name for things we force people into doing together.” That would be: “Government is just the name for things people object to so strongly, we have to force them into doing together.” And finally: “Government is just the name for things we’re willing to force other people to do our way, over their objections.”

    I’m certain this last holds for Neo-Constitutionalist; it’s true of all the anti-gunners. Since “ensure the blessings of liberty” is an absolute mandate, like “general welfare”, people need to be able to resist encroached liberties. We really should be arming everybody at govt expense. Let’s force Neo-Constitutionalist to pay for that, no matter how hard he objects: that’s just what government is. #TheyJustDidntThinkItThrough.

    5 – Sensible gun laws. We’d have a lot more “sense” if ninnies like Neo-Constitutionalist there didn’t waste so much time getting things so energetically wrong.

    To secure the general welfare, specifically the “safety” he alludes to in regulating against flintlock fires, how about we follow the statistics: bad people doing bad things — er — do bad things, remarkably whether guns are permitted them or not. Meanwhile regulations on gun use and ownership burden people who don’t harm anybody. (Except occasionally, armed, peaceful responsible citizens stop a violent crime, increasing the “safety” they personally experience, and often the “safety” of the people as a whole.)

    With all those gun laws, good people get killed anyway. So, what good are these laws?

    I’m all for sensible gun laws: specific to misuse, respecting autonomy for peaceful responsible people, and net advancing the goals of government, the preamble is a pretty good list. From this perspective most of what we have and everything Neo-Constitutionalist there proposes is just crap. #TheyDidntThinkItThrough

    1. avatar Ing says:

      “Government is just the name for things we’re willing to force other people to do our way, over their objections.”

      Beautifully stated. I’m definitely going to use this.

    2. avatar Toni says:

      Jim your comment is F&%#[email protected] brilliant. as much as i would like to say i could do better i most certainly could not. this ass needs to be hung, drawn and quartered publicly for his treason against the constitution and it is clear to me as someone who loves what your constitution stands for and would love to move to the US from australia. if it came to it i would also stand beside you in the fight i know is coming sad is it is to say it. better to die on your feet than live one hour as a slave

    3. avatar Anonymous says:

      Love your articulate explanation of No. 4. Fantastic, and pure reality.

  17. avatar AFGus says:

    Mr. Cornell evidently has never made a serious perusal of the Federalist Papers. If he had, he would know that everything he stated is utter and complete bunk.

    1. avatar Ironhead says:

      Probably the reason he did read them, and chose to ignore them cause they dont fit the narrative.

      Its all about the feelz, not the facts.

  18. avatar Ing says:

    Mr. Cornell and his ilk keep throwing around “regulate” like it’s synonymous with restriction and prohibition. Well-regulated means properly functioning.

    As an analogy, consider a clock. If it’s well regulated, it does its job reliably and smoothly. You’ll always know the correct time. If it’s restricted instead, and maybe even prohibited from performing some part of its function, then it becomes the opposite of well-regulated. It becomes unreliable. Unable to do its job. Useless.

    In theory, regulations are meant to make things better. To make society and government function smoothly. In practice, they’ve become a suffocating blanket of rules and codes. Too often, “regulations” are explicitly the opposite.

    A well-regulated militia would actually function. The Constitution defines the militia, and almost all of us are in it. If any of the things Mr. Cornell advocates will help bring about a functioning citizen militia, fine. Let’s do it. If not, then with all due respect (i.e., none), Corny and co. can FOAD.

    Also, since most of his argument seems to be “someone did it in the 18th century, so we should do it too,” let’s take that all the way. Slavery was legal then; should we bring that back too? If the press was ever restricted by anyone in an official capacity back then, well, let’s bring that back, too. What else should we resurrect? I’m all ears.

    And one last thing: taking up arms against the government is only treason if you lose. The American Revolution was treasonous…right up until it wasn’t. I figure that’s a pretty good example to follow.

    1. avatar Ansel Hazen says:

      “What else should we resurrect? I’m all ears.”

      Vigilante Justice seemed rather popular in those times eh? Got the job done rather quick too.

  19. avatar Help me lift my jaw back up says:

    OMG… Talk about rewriting history. This guy has spent a lifetime trying to find a loophole for the constitution itself.

    1. avatar Jim Macklin says:

      That’s is what obama did as a constitutional scholar at college.
      Media Inquiries | University of Chicago Law School
      https://www.law.uchicago.edu/media
      From 1992 until his election to the U.S. Senate in 2004, Barack Obama served as a professor in the Law School. He was a Lecturer from 1992 to 1996. He was a Senior Lecturer from 1996 to 2004, during which time he taught three courses per year. Senior Lecturers are considered to be members of the Law School faculty …

      He was always looking for loopholes

      1. avatar FedUp says:

        Obama was never a “Constitutional Scholar” or a “Professor”.

        He was a Lecturer, which means he taught the classes that the Professors didn’t want to teach, or taught evening classes when the Profs wanted to be at home.

  20. avatar Butt Sponge says:

    “well-regulated liberty”

    That’s a new one. What a fool.

    1. avatar Joe Nieters says:

      “Well-regulated…” vs. “Well-functioning…”, just sayin’.

  21. avatar Chip in Florida says:

    “…supporters of the idea of well-regulated liberty. ”

    Wow! Another person who totally misunderstood Orwell’s story 1984. The story was supposed to be a warning, not a guide.

  22. avatar Jonathan-Houston says:

    What firearms infringrnents would the Founders (generally speaking, those who led the revolution itself and/or the colonial actions calling for it, including everyone who signed the Declaration if Independence) have approved of? Hard to say.

    What infringements would the Framers have approved of (meaning everyone who signed the Constitution, including some crossover signers from the Declaration)? Less difficult to say: potentially, ALL infringements.

    The proof? The Framers debated and rejected applying the Bill of Rights, including the Second Amendment, to the states; it applied only to the federal government. Read and re-read that sentence as many times as it takes to sink in. I’ll wait.

    Ready? OK. The BoR applied only to the federal government, with everything else being relegated to the states and the people, in that order. True, some state constitutions provided firearms freedom protection. However, that was the states’ prerogative. They could just as easily imposed restrictions. In fact, many did and the Framers knew that.

    The fact is that the 2A was not incorporated (universally and constitutionally enforced against) on the states until the 2008 Heller decision. Those centuries of delay and the infringements they permitted were allowed by Framers who declined to apply the Bill of Rights to the states at the outset.

    Is that an historical quirk owing to the compromises and trade-offs inherent in a constitutional convention? Perhaps. Probably. Almost certainly. Still, it does evince an absence of any unanimous, unambiguous stance in favor of unfettered firearms freedom across all jurisdictions that we like to cast retroactively on those delegates.

    1. avatar Ralph says:

      “What infringements would the Framers have approved of . . . ? Less difficult to say: potentially, ALL infringements.”

      Uh, no.

      The BOR did not apply to the states because the states were sovereign with most government power reserved to them, and the federal government’s power was limited. The founders wanted it that way. We were the United STATES.

      The states themselves were, for the most part, friendly to gun ownership and open carry, and no specific provision of law was thought to be necessary to protect the basic right of self-defense although some did have them. Here’s an example:

      “That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power.” Pennsylvania Declaration of Rights (1776 — predates the Constitution).

      Later on, most states, as or after they joined the Union, adopted language relating to keeping and bearing arms. Even Hawaii, which ignores it.

    2. avatar Fred says:

      You ignore the 13th and 14th Ammendment, which specifically applied the Bill of Rights to the states. And Heller was a case out of DC, which is federal territory, not a state, so while Heller applies to the states, it does so through the 13th and 14th Amendments.

  23. avatar Son of Alan says:

    I don’t know if you noticed, they are trying to normalize the phrase ‘Regulated’ in context of the 2nd amendment as being controlled by a government body instead of it’s true meaning as ‘well working or running’.

    1. avatar FedUp says:

      “Regulated” in the 18th Century: It works as intended.

      “Regulated” today: controlled by Regulations, which are like laws, but are enacted by unelected bureaucrats.

      Anybody who claims it could have had the same meaning then, when government regulations didn’t even exist yet, is either too stupid to tie their own shoes or lying through their teeth.

      1. avatar Shallnot BeInfringed says:

        Anybody who claims it could have had the same meaning then, when government regulations didn’t even exist yet, is either too stupid to tie their own shoes or lying through their teeth.

        B.

  24. avatar Jim Macklin says:

    A well regulated [equipped] militia being necessary to the security of a free state ? {Yes, therefore]
    “The right of the people to keep and bear arms shall not be infringed.

  25. avatar Robably says:

    I wonder if this dude would be up for debating Nicolas Johnson over at Fordham Law about this subject?

  26. avatar MarkPA says:

    #1: Registration
    Able-bodied men of militia age were obliged to enroll and to present their arms for inspection. If our States would kindly pass a militia law calling for enrollment and musters I have no doubt that we would comply; and, submit to the presentation of exactly 1 AR-15 each for validation that it is in good working order.

    Other arms we keep for non-militia purposes need not be registered for to do so would serve no purpose such as that cited by the OP.

    #2: Public carry

    I don’t see how the OP evidences no right to public carry. He sites no laws to that effect. In the early colonial era there were laws obliging public carry, e.g. to church.

    #3: Stand-your-ground laws

    SYG is not well understood. One’s obligation was to retreat until his back was against the wall. This notion was in an era of arms by cutlery, not guns. The modern notion is that one should retreat if one can do so with complete safety; but, such is rarely the case. If one can retreat with greater safety than engaging in combat it is prudent to consider that alternative. However, the main purpose of SYG is to truncate malicious prosecution in cases where the State tries to persuade the jury that – with 20:20 hindsight – the prosecutor is convinced that the self-defender had a viable path of retreat.

    #4: Safe storage laws

    The premise here seems to be that if we can find one case – e.g., some municipal government – in the Constitutional era that passed a law, the Constitutionality of any comparable law is established dispositivly. Very well, then we must guard our liberty viciously lest we allow any encroachment whatsoever undermine our Rights.

    #5: Loyalty oaths

    This is an interesting argument that we ought to give more thought. It is true that the revolutionaries disarmed the loyalists whenever they could. And, of course, the British disarmed the revolutionaries whenever they could. The Revolutionary war was triggered by the march to Concord.

    The text of the 2A includes the right “of the People”; i.e., while all men are created equal and have the natural right to life and the means to defend it, Congress is obliged to respect that right of “the PEOPLE” alone.

    If there were any loyalists remaining in America it would certainly be within the power of Congress to disarm them. Just as Congress has disarmed illegal aliens.

    One might – here – advance the argument that the Federal government could disarm anyone that was not loyal to the regime now in power; i.e., the President and current Congress. But, then, we would have to consider the counter-argument that the current government might be tyrannous. And if it were so it would be a grievous fault, and grievously would this regime have to answer for it. The founding generation that ratified the Constitution and its 2A would not have intended that any large mass of them could be disarmed by the government merely because those disarmed were deemed not to be loyal to the current regime.

    1. avatar Roymond says:

      I hadn’t read this far when I posted (below); that’s a great treatment of both “stand your ground” and of safe storage.

      The problem in both cases comes from someone trying to find an example that bolsters his case rather than trying to understand the matter, which is further complicated by treating the words there as though they were found in a modern magazine article instead of how they were used and understood when written.

      And I forgot the “cutlery” background of “going to the wall” — that aspect makes it much clearer, because it makes clear the real issue: whether or not one is within range of an attacker’s weapon.
      (Now I’m wondering if there are any colonial-era cases where an attacker had a crossbow, and retreating was at issue — that would have an excellent bearing on the situation with firearms!)

  27. avatar Ralph says:

    Wow. The “professor” conveniently ignores the fact that “stand your ground” is rooted in English Common Law. Outside of the home, retreat was not required when attacked, although the degree of defensive force and the ability of the defender to retreat was important to determine whether the defensive force was reasonable under the circumstances.

    Inside the home, there was no requirement to retreat at all, but the degree of defensive force still had to be reasonable.

    English judges constantly watered-down England’s self defense laws, until today they hardly exist at all. And that’s what Professor Numbnuts wants for America.

  28. Mr. Farago has plenty wrong in that article, but a big one is saying that English common law had a duty to retreat. Virginia has had English common law for self-defense since 1607 and has always been a stand-your-ground state (unless you are part of the “problem”, in which case one must retreat as far as possible).

  29. avatar Roymond says:

    He has a bit of a point on “stand your ground”: at the time it was considered a duty to “go to the wall”, which meant trying to avoid violence until you coudn’t any longer (Thomas Jefferson actually handled a case where “going to the wall” was at issue). But to equate it to a duty to retreat isn’t fair because if you saw no way out of being harmed other than using deadly force, then by definition you had “gone to the wall”. It wasn’t as strong as the “stand your ground” concept, but it sure as heck wasn’t a duty to retreat.

    He also has a bit of a point with safe storage; keeping your arms from being easily available to a malefactor is part of the discipline of a “well-regulated militia”. The error is in claiming that any sort of storage law is legitimate, and that just doesn’t follow: the most it can extend to is arms not in use, where “in use” includes not just carried but also ones stowed so as to be available for defense of dwelling or business. So it would be legitimate — using myself as an example — to require most of my guns to be under lock and key, but not legitimate to tell me that the three I have stashed to be available in case of home invasion can’t be so stashed; by being available for home defense they are by definition in use.

  30. avatar tmm says:

    Anarchy. Sure.

  31. avatar Anonymous says:

    The framers and adopters of the Second Amendment were generally ardent supporters of the idea of well-regulated liberty. Without strong governments and effective laws, they believed, liberty inevitably degenerated into licentiousness and eventually anarchy. Diligent students of history, particularly Roman history, the Federalists who wrote the Constitution realized that tyranny more often resulted from anarchy, not strong government.

    “Well-regulated liberty.” Sounds hilarious and oxymoron-ish. Regardless of their actual leanings which is certainly debatable as presented from Mr. Cornell’s perspective, there is no longer any need to worry about “liberty inevitably [degenerating] into licentiousness and eventually anarchy” because with the advent of computers and seemingly countless and redundant federal, state, and local agencies, the government is tracking everything you own and every dollar you earn.

    His statement – “Tyranny more often resulted from anarchy, not strong government.” To this I say, in the words of Sowell – “Show me the evidence! – if your perspective is a dichotomy of one side being anarchy and one other being strong government (communism/fascism/socialism/ dictatorships), then show me the evidence. At the time of the founders, communism /fascism/and socialism were not mainstream if existing at all. There were plenty of dictatorships, kings and queens, and so forth, and failed republics like the romans, or failed democracies like the Greeks. And nothing has really changed if you take this perspective. With the Bolsheviks and their revolution, and the implementation of one could suggest – “well regulated liberty” – millions upon millions were killed, undergoing democide, for the implementation of their ideaology – which happened to be controlled by a strong government. And this didn’t just happen there. Under Mao, millions upon millions killed. Cambodia. Cuba. Armenian genocide. If you take the Anarchy strong government perspective, then strong government killed them all. In what region did Anarchy kill anyone in the last 200 years???? Maybe a few provinces in Africa. Maybe some indian tribes in the US prior to our arrival. Governments are what implement things like the “holocaust” – or the “Gulag Archepelago.” So if this is his argument – it is REALLY off base.

    I have a different perspective regarding the “Anarchy strong government” perspective. Cornell seems to think that the lack of government is anarchy. And in an anarchical system, the biggest gang takes over and everything else has to live under their rule. WELL. I think that all there is – is anarchy. That is the default, and everything stems out of that. The life we have right now, is because the biggest gang already took over and formed the US government. This is my perspective. Now, that said, that gang did a pretty decent job, compared to other authoritative gang governmental structures. If I had to live under a gang, I would prefer to live under this one. But in my opinion, the smaller the gang, the less intrusiveness in my life, the better. And why? Because I want to be left alone to live my life. I don’t want them making demands of me. And when I say “them” – I’m not just talking about government officials. I’m talking about the hundred of millions of people voting in federal, state, and local elections that think they are entitled to my money, my time, my convenience, and my life. Those people are the problem. They don’t know they are the problem. They even have the same complaints as me regarding government, but then they still go out there and elect someone that is going to push to make demands of me, and of the people that voted for them, and the vast vast majority of the time, these are needless demands. Do they ever call for volunteers? No. Instead they demand my money. And my money is my time, and my time is my life.

  32. avatar Anonymous says:

    #1: Registration

    All of the colonies – apart from Quaker-dominated Pennsylvania, the one colony in which religious pacifists blocked the creation of a militia – enrolled local citizens, white men between the ages of 16-60 in state-regulated militias. The colonies and then the newly independent states kept track of these privately owned weapons required for militia service. Men could be fined if they reported to a muster without a well-maintained weapon in working condition.

    Show me the evidence! The government didn’t “keep track” of anything. Weapons back then were not serialized and not traceable by any means. The individual militia men (regular citizens just like anybody else), themselves, kept track of their own weapons. And that was the best solution. It was the cheapest solution. It put all the responsibility on the individual militia men, and in doing so, it gave them the most freedom (liberty) to implement whatever method they would like to choose to keep track of their own weapons, or keep track of some of them and maybe not others. As long as they had a weapon when they were called.

    It makes sense that they could be fined if they didn’t report with a working weapon. Because it costs money to repair their weapon, or replace it. And that money doesn’t materialize out of thin air.

    To suggest that the “government” (I.E. a government agency, government employee, or government official), which is akin to what “registration” is today, kept track of their weapons is a complete total fabrication.

  33. avatar Anonymous says:

    #2: Public carry

    There was no general right of armed travel when the Second Amendment was adopted, and certainly no right to travel with concealed weapons. Such a right first emerged in the United States in the slave South decades after the Second Amendment was adopted. The market revolution of the early 19th century made cheap and reliable hand guns readily available. Southern murder rates soared as a result.

    –> “There was no general right of armed travel when the Second Amendment was adopted.”

    The 2nd amendment clearly states “keep and bear” with bear meaning carry. If they didn’t want people “bearing” arms, why on earth would they vote to have that in there????

    I would partially agree, that sentiments regarding concealed carry were not positive. Back then, in my opinion based on my readings, if someone was carrying weapons concealed, then people would think they were up to no good. If they carried them openly, then people would see them as carrying it for some particular purpose and without hiding the fact they were carrying it. Open carry was honest. Concealed carry was not.

    Such is not the case today. Today, sensitive leftist heads would explode in outrage and offense at seeing someone dare carry an actual working firearm openly (Unless, they had a badge on them, then, almost magically, this bestowed some gleeful fantasy that they were somehow no longer human, but pinnacles of moral super-beings, incapable of human mistakes). So to compensate for this unfortunate fact, gun people carry concealed to avoid dealing with people who have strong opinions about how gun people need to live their lives in accordance with non-gun people’s opinions (I.E. the opposite of liberty).

    –> “The market revolution of the early 19th century made cheap and reliable hand guns readily available. Southern murder rates soared as a result.”

    “If” southern murder rates soared, they didn’t soar as a result of available arms, they soared as a result of people absent of moral scruples regarding killing other people. You know the gun folk adage: Guns don’t kill people – people kill people. This is what we are talking about. Stop blaming the gun Cornell.

  34. avatar Anonymous says:

    #3: Stand-your-ground laws

    Under traditional English common law, one had a duty to retreat, not stand your ground. Deadly force was justified only if no other alternative was possible. One had to retreat, until retreat was no longer possible, before killing an aggressor.

    The use of deadly force was justified only in the home, where retreat was not required under the so-called castle doctrine, or the idea that “a man’s home is his castle.” The emergence of a more aggressive view of the right of self-defense in public, standing your ground, emerged slowly in the decades after the Civil War.

    Not that I agree with it, but I wonder what Cornell thinks about the Alexander Hamilton/Aaron Burr duel. After killing Hamilton, I would like to emphasize that all charges on Burr were eventually dropped. I would also like to emphasize that Aaron Burr was the vice president of the United States. It certainly doesn’t seem like a culture to require “duty to retreat” if you ask me.

    Regardless, if you take the idea that “duty to retreat” really was required back then, it’s not really any different from today’s laws. Back then sometimes you could physically retreat. Today with high speed cars, and more modern weaponry, retreat really isn’t possible. If someone is shooting at you, or running at you with a knife, how can you retreat anyways. Cornell might not agree with this slight modification, but it’s certainly acceptable to me. Furthermore it is very fair. If someone wants to kill you, and has no regard for your life, why should the defender have regard for their life.

    –> “The use of deadly force was justified only in the home.”

    No it wasn’t. Cornell just said himself: “Deadly force was justified only if no other alternative was possible. One had to retreat, until retreat was no longer possible, before killing an aggressor.” In most circumstances, retreat really isn’t possible, or the risks of injury, bodily harm, or death during a retreat exceed the risks of injury, bodily harm, or death during self defense. So this attitude really hasn’t changed.

    Straight from USAcarry:
    (https://www.usacarry.com/draw-concealed-carry-handgun/)

    When drawing your concealed carry handgun, these questions ought to have already been answered:

    Is your life being directly threatened?
    Can you leave the situation without any loss of life?
    Do you know what is directly in front of and behind your opponent?
    Is deadly force acceptable in this situation?

  35. avatar Anonymous says:

    #4: Safe storage laws

    Although some gun rights advocates attempt to demonize government power, it is important to recognize that one of the most important rights citizens enjoy is the freedom to elect representatives who can enact laws to promote health and public safety. This is the foundation for the idea of ordered liberty. The regulation of gun powder and firearms arises from an exercise of this basic liberty.

    I thought about ridiculing this statement in great depth, but there is no need to. It basically ridicules itself with such total nonsense. “Ordered liberty?” Sounds like something straight out of Leningrad, or perhaps Orwell’s 1984. It almost perfectly fits the definition of 1984’s term – “double speak.” Google it.

    What if I don’t want “health and public safety” laws enacted over my life. What if I don’t want to be safe? What if I want to be free? If I am forced to abide by “health and public safety” laws that should really be my business, not the government’s, then that is the opposite of “freedom” and “liberty.” Fewer laws are better. Please stop micromanaging my life with your opinions. Cornell calls the government forcing me to submit to majoritarianism opinion as… “liberty” and it’s hilarious.

    In 1786, Boston acted on this legal principle, prohibiting the storage of a loaded firearm in any domestic dwelling in the city. Guns had to be kept unloaded, a practice that made sense since the black powder used in firearms in this period was corrosive. Loaded guns also posed a particular hazard in cases of fire because they might discharge and injure innocent bystanders and those fighting fires.

    WTF. I might trip over something my kids left in the floor resulting in my death too. Maybe i’ll slip while carrying a pair of chopsticks to the kitchen table resulting in my untimely death. I shouldn’t be restricted in my possessions because a firefighter “might” get injured while putting out my fire. More the reason for me to construct a fireproof abode and opt out of firefighting services (if only that was possible). Maybe I wouldn’t have to pay for those taxes as well???

    Cornell seems to be one of those “if It can save one life, we should do it” people. Definitely a “safety” over “freedom” man. I offer him Remy’s hilarious video: Remy: People will die!

  36. avatar Anonymous says:

    #5: Loyalty oaths

    One of the most common claims one hears in the modern Second Amendment debate is the assertion that the Founders included this provision in the Constitution to make possible a right of revolution. But this claim, too, rests on a serious misunderstanding of the role the right to bear arms played in American constitutional theory.

    I’ve come to the conclusion that Cornell, in his desperate attempts at making complete statism palatable is employing quite a bit of misinformation.

    After James Madison’s Bill of Rights was submitted to Congress, Tench Coxe (see also: Tench Coxe and the Right to Keep and Bear Arms, 1787-1823) published his “Remarks on the First Part of the Amendments to the Federal Constitution,” in the Federal Gazette, June 18, 1789 He asserts that it’s the people (as individuals) with arms, who serve as the ultimate check on government:

    As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.

    and..

    Earlier, in The Pennsylvania Gazette, Feb. 20, 1788, while the states were considering ratification of the Constitution, Tench Coxe wrote:

    Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American…The unlimited power of the sword is not in the hands of either the federal or state governments but, where I trust in God it will ever remain, in the hands of the people.

    Are you beginning to see the picture now? How about Jefferson’s letter regarding the shay’s rebellion to Madison (The 2A author himself):

    The [governing style of the US government] has a great deal of good in it. The mass of mankind under that enjoys a precious degree of liberty & happiness. It has it’s evils too: the principal of which is the turbulence to which it is subject. But weigh this against the oppressions of monarchy, and it becomes nothing. Malo periculosam libertatem quam quietam servitutem. Even this evil is productive of good. It prevents the degeneracy of government, and nourishes a general attention to the [256] public affairs. I hold it that a little rebellion now and then is a good thing, & as necessary in the political world as storms in the physical. Unsuccessful rebellions indeed generally establish the encroachments on the rights of the people which have produced them. An observation of this truth should render honest republican governors so mild in their punishment of rebellions, as not to discourage them too much. It is a medicine necessary for the sound health of government.

    Hopefully this clears it up. “Malo periculosam libertatem quam quietam servitutem.” – Translated as – “I prefer dangerous freedom over peaceful slavery.”

    and – ” I hold it that a little rebellion now and then is a good thing, & as necessary in the political world as storms in the physical.”

    AND…

    It does the highest honor to the third, as being, in my opinion, the best commentary on the principles of government which ever was written. In some parts it is discoverable that the author means only to say what may be best said in defence of opinions in which he did not concur. But in general it establishes firmly the plan of government.

    So I would strongly recommend, Mr. Cornell read the federalist papers.

    In fact, the Founders engaged in large-scale disarmament of the civilian population during the American Revolution. The right to bear arms was conditional on swearing a loyalty oath to the government. Individuals who refused to swear such an oath were disarmed.

    Well – obviously. They would be loyal to Britain (A different sovereign country). This does not apply to US citizens, which is our subject matter.

    The notion that the Second Amendment was understood to protect a right to take up arms against the government is absurd. Indeed, the Constitution itself defines such an act as treason

    Yes and no. See examples above, but also keeping in mind, that the founders, themselves, took up arms against their own government (Britain) and they were labelled traitors.

    Gun regulation and gun ownership have always existed side by side in American history. The Second Amendment poses no obstacle to enacting sensible gun laws. The failure to do so is not the Constitution’s fault; it is ours.

    The 2nd amendment language is clear. The founders intentions were clear. Even the gun control on the books now is unconstitutional.

    William Rawle, authored “A View of the Constitution of the United States of America” (1829). His work was adopted as a constitutional law textbook at West Point and other institutions. In Chapter 10 he describes the scope of the Second Amendment’s right to keep and bear arms:

    The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.

    Justice Story (appointed to the Supreme Court as an Associate Justice by James Madison in 1811), wrote a constitutional commentary in 1833 (“Commentaries on the Constitution of the United States”). Regarding the Second Amendment, he wrote (source):

    The next amendment is: “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.”

    The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

  37. avatar Joseph D Proffitt says:

    My view is simple my right to life liberty and pursuit of happiness is endowed by my creator God almogjty himself. Thst means mams written word or spoken word we never render me defenseless. Everythimg i need for a single shot fireaarm is sold at box stores. Not to 80% lower kitsm
    They can preach gun grabbing but i dont see how 2miilion , if thst many law enforcement and military are going to go door to door where armed pissed off scared nerverous gun owners live numbering at least 270 million as low end estimate. Reality is if Half of us turned to violent rebellion we would put a fear into them that hasnt been seen since the civil war

  38. avatar JoeGoins says:

    The comment about “stand your ground” is actually accurate. By the time of the Bill of Rights was adopted, it was well established in every colony that the original victim had to retreat before he could use lethal force insomuch as the retreat could be done safely and he wasn’t inside his home or business (because of the castle doctrine). The issue, as Mr. Cornell linked to in his article, had to deal with “necessity.” Consider this recent post on the subject by Eugene Volokh at Reason: http://reason.com/volokh/2017/12/21/the-duty-to-retreat-in-the-founding-era

    For those of you who don’t know, Mr. Volokh was the one who created the argument that won the day in DC v. Heller. He is also a top tier expert on the First Amendment. You can see a good bit of his academic writing here: http://www2.law.ucla.edu/volokh/#GUNCONTROL

    1. avatar Joseph Goins says:

      Oddly enough, Cornell and Volokh debated the McDonald v. Chicago case for the New York Times: https://roomfordebate.blogs.nytimes.com/2010/03/02/states-rights-vs-gun-rights/.

  39. avatar Kyle in Upstate NY says:

    Like so many gun control proponents, he confuses an attempt to just overthrow the government (insurrection) with resistance to a tyranny. They are different things. You don’t have a right to just march into Washington and start shooting at the politicians. If however the government becomes extremely oppressive, such as a very oppressive dictatorship, you very much do have the right to resist by force if necessary. And this is right in the Declaration of Independence.

    1. avatar JoeGoins says:

      Semantics. If you lose, you’ll be tried for treason. If you win, you’ll be called a hero. The reason why you fought is totally irrelevant in the grand scheme of things.

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