Thread by @K_Thomas_Ross

Thread: The Second Amendment’s Original Purpose, America’s History of Gun Laws and prior Supreme Court Cases, and the Nonsense that was the 2008 Court Decision that Changed the Meaning of 2A

A 3-part discussion, to dispel myths concerning the Second Amendment, most of which were created in the last two decades. That mythology includes:

a) That the purpose of 2A was to give individuals the right to own guns, or to protect the populous from a tyrannical govt;

b) Credible legal scholars and the courts have interpreted it so throughout U.S. history; and

c) With our cowboy culture, guns in private hands have been common, until modern liberals started passing gun control laws. Those laws are a recent invention.

The three parts will be:

Part 1 - The Original Purpose of 2A was to Suppress Slaves

Part 2: The long History of State and Federal Gun Control Laws

Part 3: Supreme Court Gub Cases & the Total Absurdity of the One that Changed the Meaning of 2A (Heller (2008))

“If I were writing the Bill of Rights now, there wouldn't be any such thing as the Second Amendment…This has been the subject of one of the greatest pieces of fraud, I repeat the word fraud,

“on the American public by special interest groups that I have ever seen in my lifetime.”

Warren Burger, former Chief Justice of the Supreme Court, in 1991

Part I – The Purpose of 2A was to Suppress Slaves

Guns were controlled for the majority of Englishmen at the time of our Revolution. We inherited a variety of gun restrictions from English Common Law.

In 18th-century England, armed travel was limited to a few well-defined occasions, such as assisting justices of the peace and constables.

Members of the upper classes could hunt, and travel with arms. Concealable weapons such as handguns were subject to even more stringent restrictions.

The city of London banned gun ‘open carry’ entirely.

In 1619 Jamestown prohibited selling guns to. Native Americans. The penalty was death. Several colonies followed with specific gun laws/ Mass, NJ, NC & VA had laws prohibiting either open carry or flaunting a gun during an argument.(1)

To glorify guns, we teach children the myth that militias were an effective fighting force against foreign armies is part of American folklore. They memorize Longfellow’s poem “One if by Land Two if by Sea” and Emerson’s "shot heard round the world”.

In fact, these skirmishes were highly unorganized & mostly spontaneous. A few dozen were killed on each side, though the ‘Minutemen’ did drive the British back to Boston.

George Washington then folded these men into his army.

Thus ends the role of militias in American military history.

We need to rid ourselves of the ‘Sic Semper Tyrannis’ mythology that local militias have ever played a significant role in American military history.

When the U.S. Constitution become effective (1789), only one of the thirteen original colonies protected any individual right to have guns. To protect against Native attacks, PA’s state Constitution read:

“That the people have a right to bear arms for the defence (sic) 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…”.

In the North & Northeast, if guns and individual rights were addressed in other state constitutions, it was most to protect freedom of religion - pacifists need not need to serve.

The constitutions of NJ, RI & CT did not mention it.

Mass’ stated a collective right: “The people have a right to keep and to bear arms for the common defence.”

NY’s required an armed militia, to defend against Native Americans. As recently as 1763, a number of tribes in western NY were allied with the French against the British & Americans. (The massacre in the Daniel Day-Lewis movie Last of the Mohicans really happened.)

Southern states needed state militias.

NC and MD had identical wording: “That a well-regulated militia is the proper and natural defence of a free government.”

(Many do not know it, but Delaware and Maryland had slaves.)

DE’s only mention of arms was to prohibit them in election polling areas.

SC’s did not mention guns; but it had no bill of rights until after the Civil War. The right to bear arms “for the common defense” was added then.

GA's actually mandated local armed militias battalions in every county. In a small part, like NY, this was to defend against Native American rebellions.

The same man who drafted the Constitution drafted the 2nd Amendment (2A) - James Madison. He based it on VA’s Declaration of Rights, a document separate from the Virginia state Constitution. Later it was added to that state’s Constitution. George Mason was its author. It read:

“That a well regulated (sic) militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty;

and that in all cases the military should be under strict subordination to, and governed by, the civil power.”

Neither it, nor any part of the Virginia Constitution or Declaration, makes any mention an individual right to own guns.

And note:

1) It is to be “well regulated.” It is not I nut case with a bunker of weapons. It is a disciplined, trained and organized group;

2) The phrase “composed of the body of the people” was intended to be democratic. It was not a Royal army, nor an aristocratic one. “(A)ll classes, high and low, and rich and poor.”(2) and

3) The second phrase, after the semi-colon, says that one purpose of a state militia is to avoid the need for, and dangers of, a standing army.

Why was there such a big emphasis on state militias in the South? I’ve mentioned Native Americans, but those colonies gave up their western lands (to the Mississippi River) before the Constitution, or very soon thereafter.

So, what were these militias protecting against?

Understand that slave rebellions had already begun before the American Revolution. One in particular was near Charleston in 1739. Around 100 blacks joined, and dozens died, before a local militia suppressed the rebellion.

The British also had a general policy of disarming Americans during the Revolution.

Also, British generals sought to use the slaves against the rebels. The worst of those was John Murray, Earl of Dunmore, the British governor of Virginia,

who offered freedom to all slaves who took up arms against the American forces. General Murray formed a regiment of 500 former slaves – the "Ethiopian Regiment". His interest was not racial equality, but to terrify slaveowners. In fact, many were used only as cooks & servants.

Realize, then, that, before & after the Revolution, Southern ‘militias’ were essentially slave patrols. They existed in every Slave State, not bound be limitation or legalities. They would enter homes at will, searching for fugitive slaves.

Of the 55 delegates at the 1787 Constitutional Convention, around 25 owned slaves. They argued about abolishing the international slave trade, and about whether the Federal or state government would suppress slave revolts.

One of many compromises would be the promise of a Bill of Rights, including a 2A.

Virginia was the most populous state, and the most influential in the South. VA Anti-Federalists Patrick Henry, George Mason and Richard Henry Lee strongly opposed the Constitution. Mason had been a delegate to the Convention, but refused to sign it.

When the Virginia House did adopt the Constitution, the vote was a close 89 to 79.

Another leverage these men had over James Madison, the principal author of the Constitution & the Bill of Rights, was gerrymandering & primarying him (with a young James Monroe). To get Virginia and other state approval, Madison had to promise a Bill of Rights.

During the First Congressional year, Madison based the Bill on Virginia’s Declaration. This leaves us a couple of questions:

1) During and after the Civil War, when the 13th, 14th and 15th amendments were adopted, abolishing slavery, establishing real rights and the right to due process for everyone under the law, and outlawing poll taxes, why did they not abolish 2A? They should have.

Indeed, the Reconstruction era saw the rise of the KKK, and some of the worst terrorism in American history.

2. How could the 2008 Heller Supreme Court case have gotten the original intent so wrong? They were much more concerned with their ideology than with truth.

End,part I

Part II: The History of State and Federal Gun Control Laws and of Supreme Court Decisions

For 240 years, the Supreme Court correctly interpreted the 2nd Amendment as protecting the right of state governments to have “well regulated” militias, controlled by those govts, with officers appointed by them.

We have such organizations – the National Guard.

In the 1800s, 38 of the (then) 45 states had gun control laws. By the early 1900’s, it was 44 out of then 48 states.

Much of the self-image of America, Cowboy Land, is Hollywood myth. In East and in cities, the police and state government would never have permitted shoot-outs in public. Even in the notorious Western towns of fame, Tombstone. Deadwood, Dodge City, etc. –

there were never more than half a dozen deaths from guns in any year. (3) The image portrayed by Hollywood is simply a lie. We need to rid ourselves of this myth, because it heavily influences the way American extremists understand American liberty.

The Supreme Court Cruikshank (1876) case mainly said that the Bill of Rights did not apply to individuals or state governments, but only to the Federal government. (This was reversed in 1897.)

Cruikshank was concerning the 1873 Colfax massacre of dozens of black freedmen by an unregulated white militia. It did strike down the federal Civil Rights Act of 1870 (aka, the First Ku Klux Klan Act).

But it did add of 2A: "The right to bear arms is not granted by the Constitution.”

By the late 19th century, large corporations were forming, & using private guard armies to subdue labor & prevent unions. In reaction, in Chicago, the Socialist Labor Party developed its own well-organized counter militia.

In Presser v. Illinois (1886), the Court unanimously reaffirmed Cruikshank, that 2A did not restrict state law.

But it also opined that private citizens had no right to form even a well-regulated militia, unless it was controlled by Federal or state militia laws:

The opinion reads: “It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative…

“[T]he States cannot prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.”

“The right voluntarily to associate together as a military company or organization or to drill or parade with arms, without, and independent of, an act of Congress or law of the State authorizing the same, is not an attribute of national citizenship.

Military organization and military drill and parade under arms are subjects especially under the control of the government of every country.”

Thus, it prohibited all militia groups not under the control of a government. A citizen’s individual right to guns was solely to prepare him for fighting in the next declared war. (I’d say make that gender neutral, but, this was in 1886.)

his was “the law of the law” for the next 53 years.

During Prohibition (of alcohol 1919-1933), the homicide rate in the country nearly doubled.

Many states passed laws against guns. 27 states enacted measures to restrict or outlaw the sale and possession of fully automatic weapons prior by the end of Prohibition,

& many outlawed semi-automatic guns. (4)

In 1934, the national government passed its first gun control law, the National Firearms Act of 1934. It heavily taxed machine guns and sawed-off shotguns, and mandated a national registry of such guns.

The National Firearms Act of 1938 licensed interstate gun dealers, and prohibited the sale of guns to violent felons.

The second act was challenged in 1939. The Supreme Court ruled (US v. Miller) unanimously that 2A applied only to militias, that 2A gave no individual right to own guns, and that the Federal control of guns was legal.

This was the “law of the land” for the next 69 years.

After the assassinations of JFK, his brother and MLK, 1968 saw the passage of the federal Omnibus Crime Control and Safe Streets Act and the Gun Control Act. They prohibited convicted felons, illegal drug users and the mentally ill from buying guns.

They also raised the age to purchase handguns from a licensed dealer to 21, and expanded the licensing requirements for gun dealers.

In 1972, the ATF (the Bureau of Alcohol, Tobacco and Firearms) was established to enforce these laws.

We must digress to the NRA’s changing role during this period. Union officers formed the NRA soon after the Civil War, because they saw their troops unprepared for battle, and wanted them to have basic shooting skills for the next war.

For 100 years the NRA was the premier organization in helping white Americans learn to shoot – shooting teams at schools, the Olympic shooters, training Boy Scouts, with shooting ranges and competitions, etc. It was highly apolitical.

Until the 1970’s the NRA actually backed gun control laws. In reaction, more extreme gun-rights groups arose. These still exist today, & are ready to take the place of the NRA. In 1977, in the “Cincinnati revolt”, extremists took control of the NRA Board and leadership.

The extremist brought in PR firm Ackerman McQueen to redefine the NRA’s image and message as political. Power shifted between the extremists and more moderate members, until 1991. In that year “Ack-Mac" brought in Wayne LaPierre. The NRA has remains hardline to this day.

In one significant early NRA victory, in 1986, Congress passed the Firearm Owners Protection Act, which eased restrictions on interstate sales of firearms & forbade the national government from creating a gun ownership database.

But one amendment to it, still effective today, was banning the sale or ownership of machine guns not previously owned.

After the 1991 attempted assassination of Ronald Reagan, the Brady Handgun Violence Prevention Act created the National Instant Criminal Background Check System (NICS). Interstate gun sales were prohibited for felons, illegal aliens,

ersons convicted of or under a restraining order for domestic violence, illegal drug users, and those dishonorably discharged from the military.

From 1994-2004, the Violent Crime Control and Law Enforcement Act prohibited the manufacture of new semi-automatic assault weapons, and of large-capacity ammunition magazines.

The NRA began to win more significant victories. In 1997 it challenged the Brady Act in court.

The increasingly conservative Supreme Court struck down in 1997 (Prinz, 5-4) parts of the Brady bill compelling state and local law enforcement to conduct background checks. It was based on the 10th Amendment (reversing Federal power not enumerated to the States).

But it allowed the rest of the Act to remain in place. 2A was still in effect.

So, clearly there was never any Constitutional right to own guns for whatever purpose.

In summary:

Cruikshank (1876) -– unanimous - "The right to bear arms is not granted by the Constitution.”

Presser (1886) –– unanimous - The purpose of 2A was to prepare Americans for war. Private militia groups were prohibited.

Miller (1939) – unanimous - Federal gun control laws were legal.

Prinz (1997) – (5-4) The Feds could not command the states to assist them, but otherwise Federal gun control was legal.

So, when, in 2008, the Supreme Court could rule 5-4 that 2A protected the right of all individuals to own pretty much any gun they wanted, it was not based on the original purpose of 2A, nor on legal precedence, nor on any historic lack of gun control laws.

So, what was the ‘reasoning’ which justified the 2008 Heller decision? We shall see in Part III.

As the GOP became more ideological & extremist, our government began betraying the American people.

In 2004 the GOP Senate, House and president allowed the Violent Crime Control Act to expire.

In 2005, perhaps Congress’s most corrupt and deadly betrayal of the public safety, gun manufacturers were protected from civil liability, as tobacco companies has been.

End, part II.

Part III: The Total Absurdity of the Opinion that Changed the Meaning of 2A (Supreme Court’s Heller (2008))

2008’s Heller decision overturned 240 years of Court precedence. The majority opinion was nonsense & fabrication, taken from the NRA & other ideological sources. The majority claimed to be originalists, but this overturned the original meaning & purpose. Pure judicial activism.

For the first time ever, the Supreme Court ruled that 2A provides an individual right to own guns, regardless of military or militia needs.

This Supreme Court decision arose out of D.C.’s Firearms Control Regulations Act of 1975, which totally prohibited buying new pistols, & insisted that rifles & shotguns be kept disassembled or have a trigger lock. The restrictions applied even to Dick Heller, a DC police officer.

Strangely, the NRA wanted nothing to do with this case, at first, fearing a negative decision. As Congress controls the District, they favored instead the GOP Congress overturning the law. The case was brought by the Koch Network’s Cato Institute.

The NRA finally did file an amicus brief, as did almost all of the GOP Senators & Congress reps, & a few Democrats. So did almost all of the GOP state AG’s in the country, even though they would have to deal with the inevitable crime wave. Then Texas AG Ted Cruz authored it.

Anthony Scalia wrote the majority opinion. He supposedly was an Originalist, or Strict Constructionist, meaning that he believed in not going beyond the words of original Constitution and amendment. But his ruling totally ignored the original meaning and purpose of 2A.

The ruling took a lot of legal ‘history’ taken from the NRA and other propaganda. Reality seemed to have no bearing on the case. His arguments were that:

1) The 2nd Amendment contains a prefatory clause and an operative one. The preamble has no effect. In effect, it is not an originalist argument, but rather judicial activism. The original purpose played no part in the ruling:

“The former does not limit the latter grammatically, but rather announces a purpose.” Other than informing, it “does not limit or expand the scope of the operative clause”.

This is grammatical nonsense. There are no periods, semicolons or separate sentences here. The militia clause modifies the rest of the sentence. If they wished, they could have worded it in a way to mean what Scalia wanted It to say.

2) The purpose of both clauses is the same – to prevent a tyrannical standing Federal army from disarming citizens. Citizens had an ancient right of individuals to keep and bear arms (“the individual English right”).

But the sources Scalia cites are, in fact, complaining about British laws restricting guns.

The English Bill of Rights, 1689, was written, much like the US Declaration of Independence, to list grievances about a kIng, in this case the last Scottish & Catholic king, James II, who had just been thrown out of the country by the Puritan Parliament.

It declared “(t)hat the subjects which are Protestants may have arms for their defence (sic) suitable to their conditions and as allowed by law” (i.e., not Catholics).

In fact, its purpose was disarming Catholics. “Suitable to their conditions” means nobles can hunt. “As allowed by law” negates any suggestion that it is basic right. The UK has strict gun laws; an individual right was never considered in British constitutional history; (6)

3) Because the 1st, 4th and 9th Amendments pertain to individual rights, so must 2A. Yes, all the first eight amendment deal with individual rights & their relation to the govt power. But unless it is specifically stated, those individual rights are never guaranteed;

4) State constitutions before the passage of the Bill of Rights confirm this interpretation. He cites PA, VT (which was not a state at the time), NC and GA, and Mass.

As discussed above, only on Pennsylvania’s, which have discussed above, he is right. VT was not a state in 1791, but did copy Penn’s. In Mass and NC, it was for the common defense. Georgia’s mandated militias (slave patrols) in every county.

5) During the discussion of the 2 A’s drafting history, “while of dubious interpretive worth” (because Justice Stevens used it in his Dissent), some proposals that unequivocally referred to an individual right to bear arms. Yes, they did.

But, like much of what comes out of Congress, between Madison’s original draft, and the final version, the Amendment went through so many drafts, in a House committee & in the Senate, that attempts to conclude some other purpose are indeed of dubious worth;

6. “Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion.”

We have seen above that this is pure nonsense.

Legal Precedence does not specifically say individuals have no guaranteed right. Again, as we have seen above, every prior gun control Supreme Court case - Cruikshank (1876), Presser (1886), Miller (1939) and Prinz (1997) – declared that 2A gives no individual right to own guns.

In order to bring Chief Justice Roberts into the majority, Scalia tempered his decision with some obvious and necessary limitations, totally unsupported by consistent logic, 2A, or the rest of his decision.

“Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,

“or laws imposing conditions and qualifications on the commercial sale of arms.”

In interpreting 2a, Scalia says he followed the principle that "[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.”

Therefore, in a bizarre jump of logic because pistols, rifles & semi-automatic guns are in common use (in 2008, not in 1787), they are protected by 2A.

(This is akin to saying because driving is legal, and speeding is common, speeding is protected.)

He also managed to prohibit fully automatic weapons, with the same childlike circular reasoning. They are uncommon, and therefore not protected.

“Arms” meant what is currently in the hands of many people, not which is very unusual.

Therefore, machine guns could be prohibited. Which means that, if machine guns were common in our society, then they would be legal.

Because Heller was a case involving Federally controlled DC, it would take another case, McDonald (2010), again 5-4, to apply it to state and local governments.

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Footnotes:
(1) Robert J. Spitzer, Gun Law History in The United States and Second Amendment Rights
(Paper in the Duke Law Scholarship Repository) © 2017 p. 63-64. Last accessed 5/9/2020

(2) Virginia's U.S. Constitution ratification convention (June 16, 1788), reported in Elliot, Debates of the Several State Conventions
memory.loc.gov/cgi-bin/query/…))
Last accessed 5/9/20.

(3) Spitzer, Ibid, p. 66. Last accessed 5/9/2020
scholarship.law.duke.edu/cgi/viewconten…

(4) Ibid. (p. 63-64).

They Are Today”, 6-14-15, The History News Network, ©2020
historynewsnetwork.org/article/159513 Last accessed 5/8/20.

6) Lois G. Schwoerer, To Hold and Bear Arms: The English Perspective, 76 Chicago-Kent Law Review. 27 p. (2000), pp. 59-60. Last accessed 5/9/2020
scholarship.kentlaw.iit.edu/cklawreview/vo…
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