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When proposing the Fourteenth Amendment to Congress in 1866, Senator Jacob Howard referred to “the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press; … the right to keep and bear arms….” He averred that “the great object” of the amendment was “to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.” The design was not to change the nature of the rights, but to prevent the states from violating them.

The Second Amendment was ratified in 1791, and the Fourteenth Amendment was ratified in 1868. The Supreme Court stated in D.C. v. Heller (2008) and repeated this year in N.Y. York State Rifle & Pistol Ass’n v. Bruen: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” So do we look for that understanding in 1791 or in 1868? …

In short, there is only one Second Amendment. It means what it meant in 1791. Although analysis of attitudes in 1868 is relevant to determining whether the Second Amendment is incorporated, that does not change the fact that what was incorporated was the pre-existing right to keep and bear arms. Post-1868 evidence cannot be used to contradict that original understanding.

Stephen Halbrook in Did the Fourteenth Amendment Alter the Meaning of the Second Amendment?

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70 COMMENTS

    • Don’t take it personally Stephen Halbrook but I’m done with dissecting The Second Amendment. Now can we move on to Abolishing Gun Control like Slavery? After all the two go hand in hand.

      • *sigh.* OK, Debbie, what EXACTLY is your plan to do so? I’ll wait.

        All of us here (excluding trolls like Dacian and Albert Hall) would like to see the Second Amendment applied as was intended and as its plain language mandates. But it has not been, and despite Bruen many courts will continue to resist doing so. How does one go about changing that situation?

        Shrieking hysterically accomplishes nothing. I suspect dismissal of the efforts of scholars such as Halbrook stems from an inability to actually understand and appreciate the importance of the legal arguments they are advancing, and what goes into persuading courts to accept your legal arguments.

        Halbrook has been one of the leading Second Amenment scholars of the past several decades. His “dissecting” the Second Amendment (also known as “legal analysis”) is and has been hard work, but the of scholars like him have finally borne fruit in the form of Heller, McDonald, and now Bruen. As a result of decades of such hard work, gun control laws are dropping like flies.

        They and other Second Amendment activists have had and have actually executed a decades-long plan that now has borne tangible, concrete results. So before you dismiss such efforts, pray tell us all: what does the all-knowing Debbie propose that will actually work better than what Halbrook and others have been doing through the legal academy (which, when coupled with political successes in getting originalist judges appointed, is what has brought us to the favorable ground we have right now).

        We’re waiting. . . .

  1. The argument that “progress” has occurred since the 2A was written and therefore we need restrictions because safety isn’t something that’s going to go away.

    I’ve taken to using a quote in response to such arguments. “No one can own life but anyone who can hold a frying pan owns death”.

    Works especially well with people who are married.

    • “Works especially well with people who are married.”

      I will vouch for that. I also share, at least in part, your pessimism about our prospects as a society and country.

      • I’m actually not particularly pessimistic over the medium and long term.

        Short term, 1-2 years, I’m pretty bearish. Not because most of the problems are actually hard to fix but because the vast majority of people are both unaware of the problems and unwilling to admit that the problems exist when you try to bring them to people’s attention. Worse, when you try to explain ANY of this to them they tend to get defensive and lash out, shooting the messenger as it were. [Something something mental prisons perceived as castles something…]

        Which means you’re probably going to have a bad day. That will wake people up and then things will change. That’s one think Ayn Rand was absolutely and demonstrably correct about.

        I simply view the “bad day” as being entirely unnecessary and an enormous waste of resources, time and, probably, life. And, since I like efficiency in most cases, that annoys me.

        Your entire country is essentially run like the DMV. Which is to say that the people who run most things are bunch of dipshits who couldn’t get/hold a job at McD’s run everything from local to federal. They also inhabit middle management and HR in most large companies. They’re easily swayed by base incentives (like a Twitter mob of bots promoting the new thing politically), which run in the wrong direction at this point (and no one seems to want to fix that), and they’re simply not smart enough to avoid running the ship into the rocks without a swift kick in the head.

        If people are not willing to change the incentive structures, which they currently are not, then the people who are leveraging those structures (currently the far Left) are going to get what they want until we run face first into the buzzsaw of reality.

        It’s all so fucking unnecessary. And it probably ends very badly when people end up like Khrushchev visiting a US supermarket for the first time and realizing that he was constantly lied to. You do that to 100 million people that you’ve spent almost three years going out of your way to stress to the gills in a hamhanded attempt at Soviet style control and you’re going to get one hell of a reaction when they wake up in a group because SHTF.

        Currently, the only bright light I see in the short term is Europe. Not because they’re smart but because they’re further down this road than we are and we can watch their “slow motion car accident” and maybe, just maybe, avoid our own or at least brace for impact.

        • remember seeing that ugly little fucker in 1959…figured he was just casing the joint for what almost happened later…

      • Nah, her cooking’s alright but you don’t want to criticize her driving or she’ll leave you with a hell of a headache.

        It’s good camo though. No one even starts to think she might be carrying a pistol when she OC’s a 10″ cast iron skillet in public.

  2. In 1791, most folk were still self-sufficient. We were mostly an agrarian economy; people lived close to the land. Firearms were a necessity and most learned to use them.

    Today, we are urbanized and sub urbanized. People think the outdoors is someplace you visit or flyover, not a place to live. The Amish farmer we buy our food from laughs at the city ‘English’ who ask why there is dirt on the radishes and beets.

    Folk bring generators, televisions, and gas grills when they go ‘camping’. Folk work in office building and excercise indoors at gymnasiums. Folk watch nature in documentaries. They buy packaged meat with no sense of how it gets to the supermarket.

    Folk are disconnected from the land, from where food comes from (and are being poisoned by manufactured foodstuffs).

    For a long time, urbanites and suburbanites saw guns as the fetish of the barbarian hunters among us.

    So, now, those same urbanites and suburbanites are waking up and wanting guns to protect themselves from each other. Well, OK. That is still a win for the 2A.

    In the long run, an armed population is still our best bet against the encroaching tyranny.

    So, yeah, we are disconnected from the land, and from our rich, living heritage.

    • “People think the outdoors is someplace you visit or flyover, not a place to live.”

      Everyone lives in the outdoors. Most just do it by a glorified camping method called ‘home ownership’ or ‘apartment rental’ or ‘being at work in a building’ and they forage for food at the grocery store instead of in the woods and plains and lakes and rivers and streams.

      😁

    • “Put down that gat boy we have a barn to raise you can play with your friends after your chores are finished.”
      In northern Indiana there was a farm called Amish Acres. It was a tourist destination for those from the big cities like Indianapolis. We went a few times with friends and it was fun. These were obviously not your Orthodox Amish as they sold their wares and gave tours of their lifestyles at the farm. The woodwork though was absolutely amazing! Some actually got away from the horse and buggy and “Gasp” drove black VW vans, talking mid to late 60’s here. It’s scary how little some people know about where our food comes from because when it hits the fan and it will hit it these urbanites will be a liability not an asset.

      • “…these urbanites will be a liability not an asset.”

        Depends on your perspective. They have stuff that may be useful, and for possum & kin, they ARE useful stuff. (“Git your hands off my dead guy.”)

        • Unlike possum rotting meat will kill us. But you are correct, when possum and family eat the spoils? we are all safer.

    • I really enjoy the modern movement of reconnecting with the land.
      Falling off cliffs or freezing to death to get the perfect selfie for the Gram.
      Totally worth the search and rescue cost. Especially if it becomes search and recovery.

    • I have, purposefully, cultivated a lifestyle that is substantially more “primative” than most of my friends, family and acquaintances. Obviously, since I am posting a comment via the internet, I have not entirely disassociated myself from the modern world but, I live farther from a town than most do, I heat my home with wood fires, I do not own an air conditioner, I do not drive particularly new or shiny vehicles, I do not grow or kill all of my food but I do eat what I grow and kill. I have dirt on my shoes, holes in my clothes and callouses on my hands. Why, is it because I cannot survive in the “World-of-Tommorow” that surrounds us? No, I can live in that world, I did for a time. I have the skills and education and knowlege to prosper in that world and I did, for a while. I, however, found that existence to be somehow lacking and I realized that my most content moments in life were when I was out hunting or fishing or just camping out in the woods so, I found for myself a place and a means of generating income that allowed me to go live in a cabin in the woods most of the time. Sure, I have electricity and a big propane tank that I sometimes have forgotten to get filled and, so, have had to cook my dinner on the wood stove for a few days and, sometimes, I get cut off from the rest of the world due to a storm, for a while.

      Does this mean that I am superior to others who have not chosen this path? No, no it does not but it does mean that if a day comes when there is no food on the shelves at the nearest grocery store that I will not be likely to panic. If, for whatever reason, I had to retreat to my home without electricity or propane or water and survive the episode, I know that I could because I know that I have. FWIW, just last winter I forgot to get the propane filled and I ran out of gas and the whole place froze solid and I “survived” for several days, the world buried in snow, with no functioning plumbing and only wood fires for heat and cooking during a period of time constantly below freezing while spending my days at an elevation higher than 90% of the population. This did not make me superman, in fact, a century or a bit more ago, it would have made me average. What does all this have to do with guns? Well, as LS points out, most people today are disconnected from the land and see nothing but hazards around them and, as a result, find a thing so simple and elegant as a firearm to be an uncontrollable object worthy of fear. I think this is largely because many, most, of them have never actually locked eyes with fear and figured out a way to survive. Those who have, or who can make the leap of imagination necessary to understand those who have, see a gun not as an instrument of evil but as one, potentially, of salvation.

      • “…but it does mean that if a day comes when there is no food on the shelves at the nearest grocery store that I will not be likely to panic.”

        “Peace through greater firepower.” Thinking such folks will do just fine when the boogy starts (uuuhhh, which it won’t). In those days, wood fires just might be imprudent; propane could be king.

        • The “Golden Horde” theory has some holes in it. Big ones.

          In some regards it reminds me of a old Persian story related by Frankl called Death in Tehran.

          The basics are thus:

          A wealthy man encounters one of his young slaves, obviously terrified of something, running away from the back of the wealthy man’s estate. So, the wealthy man stops the slave and asks him what is wrong.

          The slave tells his master that he has encountered Death in an area behind the house and that death has overtly threatened him. He begs for a horse to flee to Tehran and escape Death, promising to return once the danger has passed. The master grants the request and the slave rides off as fast as the horse will carry him.

          Curious, the wealthy man goes behind the house to investigate and, indeed, finds Death relaxing on a porch or some similar feature of the property. He approaches and interrogates Death as to why he is threatening the young slave.

          Death replies “I didn’t threaten him. I merely expressed surprise to see him here because I expected to find him tonight in Tehran.”

    • The Amish, pfffftt, they’ve cheated their beliefs just like every other cult that’s lasted more then two hundred years.

    • …2020…was a catalyst for many…suddenly you weren’t so safe when a police response became questionable…those events proved to be a big mistake for the anti-gun crowd….

      • That depends on what you believe the desired (if any forethought was applied, obviously) outcome was.

        If it was to figure out who fell where on the compliance spectrum, perhaps it was a smashing success, just like some of the shit they applied to police departments nationwide?

    • Some of us got tired of the city. I have woods on three sides and both little critters medium sized like coyotes as well as deer and black bears wandering through my yard. As to where food comes from school aged kids get Thanksgiving week off for deer season and learn to field dress deer very early. I eat breakfast occasionally at the Stock Yard Restaurant. It’s in the otherwise unmarked building next to the stockyard on the property and only open on sale days. A trail named after my five times great grandfather runs nearby along the crest of the ridge above the stockyard.

    • “In the long run, an armed population is still our best bet against the encroaching tyranny.”

      I actually think returning to the Lord Jesus Christ, to family, to community,.and to the earth itself (via self sufficiency gardening-homesteading-farming) is actually our best bet against the encroaching tyranny.

      An armed populace is also a very important defense against encroaching tyranny, and I’m a strong supporter of it.

  3. Halbrook makes an excellent argument for repealing the NFA and all subsequent gun control laws. Our Gov’t, from Federal to State and Local, needs to be reminded of their place in our society.

    • little opposition to the NFA at the time…most depression era folks just couldn’t relate…except for the handgun provision…

    • Repealing the NFA particularly the high volume items is unlikely as although $200 doesn’t seem like much the ATF gets to keep the tax and it adds up for items like suppressors and SBRs.

  4. No, no, no. 1791. That’s old and outdated. An archaic throwback to be ignored in this modern age.

    Instead we need to change with the times and adopt safe storage laws like the safe storage law from SC in 1743. Don’t want those negroes and insurrectionists to steal your guns.

    Better yet, or older yet and from some other country, nobody should be carrying guns because the Statute of Northampton 1328.

    See, anything that supports the 2nd is too old and should be disregarded.
    Anything that goes against the 2nd is timeless tradition and should be lauded.

    • “Spare the rod, spoil the child.” Govt, from Federal to State and local is our child. We’ve spared the rod for far too long.

      • Gunny is right. George Washington knew this. That’s why he spoke about government as a dangerous servant. He, and certainly Jefferson and the men we’ve come to know as The Founders, all knew that the very nature of governments meant they all had the tendency to get “too big for their britches,” or “overstep their bounds” unless reminded by The People who was actually the boss and who was the servant from time to time. Who today really believes that our politicians see themselves as “public servants”? Does a hack like joe biden, who’s fed at the public trough for an astounding 50 years, see himself as a “public servant”?

        Please. That parasite, and 90% of those in government today see themselves as our rulers. And that right there is why the 2nd Amendment was a work of genius from the Founders. They knew the tendency of men working in government to become more and more tyrannical was as old as time itself. And these Founders of ours enshrined the means by which the people could deal with overbearing and tyrannical men hiding behind the power of governments. Contrary to what the mental midget joe biden said, it won’t take nukes and F – 15s to right the wrongs. But then, that crooked buffoon never did know his history.

  5. So im am good to strap as many cannons on my ship as i can fit and also install a mortar in my backyard? Nice. Finally.

    • What’s stopping you now, Max? Cannons, mortars and ships have been perfectly legal to own without restrictions since before the Constitutiin was ratified. Well, maybe the restriction of your bank account! Go ahead and get a tank or two to go with those other toys while you’re at it! (Also unrestricted.) Enjoy!

  6. Although the corrupt greed monger Businessmen who started the American revolution were some very despicable characters they were no dummies either. They knew they could not outright ban firearms at the time so they deliberately wrote 2A in the vaguest of terms so the courts and legislature could and would regulate and or ban firearms and that is exactly what the courts and legislatures have been doing since “before” 2A was even written and certainly “after” 2A was written and up to the present day.

    Anderson’s book on 2A contains a lot of truth as well proving that the writing of 2A was far more complex than the simple minded Far Right will ever be capable of understanding or even willing to understand because of their advanced paranoia. In reality surviving letters from both Jefferson and Madison prove beyond all doubt that they were very worried about a slave uprising and used 2A as a carrot to get the states to all join the Federal Union by granting them the right to have their own private killer and murderous Militias so that they could murder slaves who revolted which was what was going on in Haiti at the time. Slave owners were fleeing Haiti and coming to the colonies with horror stories of what was going on down there at the time and the racist slave owners in the Colonies did not want that to happen to them here in the Colonies.

    Its interesting to note that the many big city gun laws on the books “before” 2A was written were not rescinded after 2A was written and that should tell you much about how worthless a hoax 2A has always been.

    I might add before 2A was even written some big cities banned carrying guns both concealed and openly and some even banned loaded guns in the home because of all the accidents that were killing people, especially children. Does this sound familiar???? It damn well should.

    The Founders of Capitalvania could also never have envisioned weapons of mass destruction i.e. the assault rifle or fully automatic weapons either. This is why Capitalvania first heavily restricted machine guns in the 1930’s because of the gangland blood baths and later the Great Satan President Reagan banned machine guns altogether allowing only the second hand guns to remain legal with of course the heavy restrictions of the NFA act.

    Today unregulated weapons of mass destruction i.e. the assault rifle are not only being used in mass civilian slaughters almost on a daily basis but the Far Right Trumpite Storm Troopers came close to creating their imagined all white utopian Trumpite dictatorship on Jan. 6th making the assault rifle a danger to American Democracy and freedom. The FBI has stated the Far Right are the most dangerous Cretin’s in the U.S. and the greatest threat to U.S. Democracy.

    • Carol Anderson? You will be better served by reading “Negroes and the Gun: The Black Tradition of Arms” by Nicholas Johnson

    • ” but the Far Right Trumpite Storm Troopers came close to creating their imagined all white utopian Trumpite dictatorship on Jan. 6th”

      You are a fucking idiot dacian. 600 morons do not an insurrection make. How many Trumpites had that scary blck rifle on their person’s that day?

      “The FBI has stated the Far Right are the most dangerous Cretin’s in the U.S. and the greatest threat to U.S. Democracy.”
      The fact that you repeat and believe this insanity just proves what a damaged lemming that you are. Get help you moron.

      • muckraker,

        dacian the demented (and MinorLiar) have been looking SO HARD for a “right wing conspiracy” to “destroy democracy” (we’re NOT a ‘democracy’, you morons, we’re a limited, Constitutional, representative republic, you mouth-breathing cretins) that they just . . . make s*** up.

        These days, dacian has descended so deeply into deranged lunacy that his posts are almost never worth even replying to. He’s a f***ing ignorant, ahistorical, illiterate, uneducated nut job. He’s nuttier then squirrel poop. Just mock him, and ignore him.

    • small d you are a worthless pos. clean your room, take out the trash then go play in traffic or on the rail road tracks

    • “In reality surviving letters from both Jefferson and Madison prove beyond all doubt that they were very worried about a slave uprising ”

      Where are these letters? Andersons book did not present them, nor did Bogus. You haven’t either.

        • The slaves won over the French. They ended slavery and basically kicked the French of the Island. However the French in exchange for diplomatic recognition wanted money for lost French property there. The amount of money France demanded was more than what could be paid and left Haiti in major debt. Haiti was probably the second Republic in our hemisphere, they just couldn’t keep it. Then there were petty power struggles, a lot of bad luck and some interference from outside actors. We all know how Haiti is today, but what them on that path isn’t really taught or known by many and even their own people.

        • You can’t produce the letters either. She referenced Bogus, who didn’t provide a source either.

          Where are the letters?

    • You have cited the FBI as an authority. Really? Given their performance over the last several years, you might as well have cited “a dude I met at the bus station downtown,” as an authority. The FBI has rendered themselves to be a nearly meaningless and fatally corrupt institution with slightly less credibility than the evening news. No right thinking person (I know, I know, no true Scotsman) regards the FBI as a reliable source of information on anything. If the FBI says the “Far-Right” are a threat that is no more meaningful than some dude sitting in his mother’s basement saying that the Martians will invade before year’s end.

    • There are no vague terms in the Second Amendment. Your problem is that your gray matter only vaguely resembles a human brain. It’s your fault that you don’t understand what is clearly written.

    • actually the largest owners of automatic weapons up till ’34 were companies and corporations that used them to equip their private police forces or “goon squads” to resist the growing power of the unions…eventually they would be forced to divest themselves of these weapons and often chose to donate them to local police forces…where some still reside to this day…often “unpapered”…

  7. Out here on the homestead, firearms are a part of everyday life. Took down a couple racoons last night that were trying to get into the chicken house. Furs aren’t worth much, but will make nice decorations, so am going to tan them for use. Never liked coon so didn’t save the meat. Dogs will enjoy it.
    We grow the majority of our food, or raise or harvest meat. We keep a couple milk cows, some chickens, and we use horses as our primary field power. We have wind and solar arrays for power, but I do have generators for times the sun and wind don’t cooperate.
    Way too many of those who have lived their lives in town/cities have no connection or more than the vaguest idea of how the food they eat is produced. Or how they get the water, electricity, heating fuel, or clothing they so happily buy on credit.
    What I find both frustrating and amusing is how few of the so called elite running things in the state and federal governments have any clue about the world beyond their little circle of fellow bubble heads. could you imagine Biden, AOC, Trump, etc. having to pick up a hoe or shovel and work an afternoon in the garden? Or any bureaucrat plucking a chicken for dinner? But, they all think they know what’s best for everyone or how those of us out in flyover country should live.

    • My Grandfather would marinate coon in Hamm’s beer for about an hour. He smoked them and lavished with homemade BBQ sauce. maybe give it try? Dogs enjoy a good smoked meal too.

      • The problem with doing that today is that it’s location dependent.

        Raccoons carry several parasites you really don’t want and which smoking is unlikely to remove since it won’t kill every stage of the life cycle.

    • urban farming is becoming a bit of a thing for some…even going so far as to raise chickens when they can get permission…perhaps they’re beginning to realize how vulnerable and dependent on others city life really is?

      • The permission thing is the issue for many, and mostly it’s fuckin’ stupid.

        There’s an enclave down the road, closer to suburbia, which constantly delights me with their online bickering about various provisions of their HOA. One of those is no chickens.

        And what is the main argument against allowing people to have chickens in an area where the minimum lot size is nearly two acres? Property values.

        Yup. If people had chickens the property values might drop. Property values. Let that sink in as to just how fucking stupid people with a property in the $1 million-plus dollar range can be. Who the actual fuck paid these people enough to do anything that they can afford a $2 million property when he’s this goddamn stupid?

        I’ve noted before, if you’re looking at your primary domicile as a financial tool you’re already begging for and deserving to get fucked good and hard. But try explaining that to a bunch of old folks who’ve been sold a bill of goods for decades and think their Merrill advisor is really, truly looking out for them, that a mortgage is some sort of manna from heaven and that they’re smart for barely keeping up with inflation in their main “asset” (liability).

        That group, however, has convinced me that the transgender this is 100% real. Nothing turns a 65 year old man into a 5 year old girl faster than an HOA spat.

    • There’s a guy down the road from me with a near identical situation. Even has a dozen or more goats for milk and meat.

      He voted for Biden and plastered his property with left wing slogans and signs for Kuster, Papas and that other one during the last election. So did his neighbor with a similar albeit smaller farm lifestyle.

      Leftie Richie Rich’s and their retirement LARPing homesteads are an obnoxious thing around here. A few chickens and a dually dont mean what used to.

  8. Leftists will continue to argue that the 2nd Amendment is old and outdated. My fall back is to point out that Newton’s gravitational laws are even older, let me know when you have found a way around that.

  9. Re: ” The Second Amendment Means What it Meant in 1791…Period”

    Exactly. And the purpose of the Second Amendment and “what it Meant in 1791” is clearly written into the Constitution in the Preamble to the Bill of Rights where it says “The convention of a number of states having at the time of their adopting of the Constitution, expressed a desire, in order to prevent misconstruction or abuse, of its powers that further declaratory and restrictive clauses should be added”. Note that when the Second Amendment was written, every weapon was a weapon of war, there were no restrictions on the private ownership of weapons by law abiding, private citizens and the militia was equally matched with the Continental Army. After all, if they weren’t equally matched, it would be pretty hard to deter or “prevent misconstruction or abuse” of the government’s powers – so in reality, the citizen militia of today should have the same firearms as the current US military. Unfortunately we are no longer equally matched because we have let our gun rights be eroded by buying into this notion if we just compromise to accommodate the people who – for whatever reason – don’t like guns they will quit trying to take away our gun rights. History has shown that no matter how much we compromise, it’s never enough so we need to stop compromising.

  10. As with all Communists, they will continue to try and eliminate any personal rights guaranteed by the Constitution in order to gain control over us. The Second Amendment is one of the shortest and most concise Amendments to The Bill of Rights. What part of ‘Shall not be infringed’ is debatable?

  11. Technically and Constitutionally, the 2nd Amendment was “incorporated” via the 9th and 10th Amendments in 1791 with the original Bill of Rights and owning and carrying all manner of arms was a right existing before the Bill of Rights ratification. The 2nd Amendment was ratified as the Founders realized this omission, of a common accepted civil liberty could in the future by not being enumerated could result in human rights violations. The 2nd was ratified as an explicit reminder for the future.

    Even if the 2nd Amendment was abolished, the right of the people to bear and arms, cannot be infringed.

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