The Second Amendment: OUR FOUNDERS MEANING!


#1

What did our founders mean when adding the following words to our federal Constitution?

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.

In answering the above question let us keep in mind the most fundamental rule of constitutional law:

***“The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.”***( numerous citations omitted).___ Vol.16 American Jurisprudence, 2d Constitutional law (1992 edition), pages 418-19, Par. 92. Intent of framers and adopters as controlling

Also see: 16 Am Jur, Constitutional Law, “Rules of Construction, Generally”

Par. 88–Proceedings of conventions and debates.

Under the principle that a judicial tribunal, in interpreting ambiguous provisions, may have recourse to contemporaneous interpretations so as to determine the intention of the framers of the constitution, the rule is well established that in the construction of a constitution, recourse may be had to proceedings in the convention which drafted the instrument. (numerous citations omitted )

In addition, see par. 89-- The Federalist and other contemporary writings“ Under the rule that contemporaneous construction may be referred to it is an accepted principle that in the interpretation of the Constitution of the United States recourse may be had to the Federalist since the papers included in that work were the handiwork of three eminent statesmen, two of whom had been members of the convention which framed the Constitution. Accordingly, frequent references have been made to these papers in opinions considering constitutional questions and they have sometimes been accorded considerable weight.” (numerous citations omitted )

So, in answering the above question, the legitimacy of the opinion offered is determined by whether or not it is in harmony with the documented intentions and beliefs for which the provision was placed in our Constitution. In other words, those who offer their opinions would do well to support their opinions with the words of our founding fathers expressing their intentions and beliefs.

**QUESTION: **

Is it reasonable to believe our founding fathers intentions were to insure that the right of the people to keep and bear arms commonly used by militias regulars, would not be infringed upon by the federal government? If this be so, what kind of fire arms do today’s national guard regulars bear in defending their State which the people have a right to keep and bear?

Now, instead of filling the thread with pure speculation and mere table talk, let us post the expressed intentions and beliefs of our founders to substantiate opinions offered.

JWK

***“On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”***–Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.


#2

the intention of the founders was to give us the means to defend ourselves from a tyrannical government, THIS GOVERNMENT!!


#3

Exactly!

The simple truth is, after creating our federal Constitution which became effective in 1789, ten amendments were quickly adopted [1791] which were intentionally designed ***“to prevent misconstruction or abuse of “ the new government’s “powers“***, and is so stated in the Resolution of the First Congress Submitting Twelve Amendments to the Constitution; March 4, 1789

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.

Now, keep in mind two of those amendments adopted were the Ninth and Tenth Amendments, reserving all powers not delegated to Congress to the respective states or the people! This keeps the federal government out of the loop!

And, in regard to fundamental rights and protections of these rights within the various state borders, let us take a look at what the people, for example, of the State of Pennsylvania, agree upon before our federal government was even created, and did so in their State’s fundamental law otherwise known as Pennsylvania’s Declaration of Rights, adopted in 1776.

*I. That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

II. That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding: And that no man ought or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent: Nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship: And that no authority can or ought to be vested in, or assumed by any power whatever, that shall in any case interfere with, or in any manner controul, the right of conscience in the free exercise of religious worship.

III. That the people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same.

IV. That all power being originally inherent in, and consequently derived from, the people; therefore all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.

V. That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family, or soft of men, who are a part only of that community, And that the community hath an indubitable, unalienable and indefeasible right to reform, alter, or abolish government in such manner as shall be by that community judged most conducive to the public weal.

VI. That those who are employed in the legislative and executive business of the State, may be restrained from oppression, the people have a right, at such periods as they may think proper, to reduce their public officers to a private station, and supply the vacancies by certain and regular elections.

VII. That all elections ought to be free; and that all free men having a sufficient evident common interest with, and attachment to the community, have a right to elect officers, or to be elected into office.

VIII. That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service when necessary, or an equivalent thereto: But no part of a man’s property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives: Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent, nor are the people bound by any laws, but such as they have in like manner assented to, for their common good.

IX. That in all prosecutions for criminal offences, a man hath a right to be heard by himself and his council, to demand the cause and nature of his accusation, to be confronted with the witnesses, to call for evidence in his favour, and a speedy public trial, by an impartial jury of the country, without the unanimous consent of which jury he cannot be found guilty; nor can he be compelled to give evidence against himself; nor can any man be justly deprived of his liberty except by the laws of the land, or the judgment of his peers.

X. That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure, and therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are contrary to that right, and ought not to be granted.

XI. That in controversies respecting property, and in suits between man and man, the parties have a right to trial by jury, which ought to be held sacred.

XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.

**XIII. 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.

XIV. That a frequent recurrence to fundamental principles, and a firm adherence to justice, moderation, temperance, industry, and frugality are absolutely necessary to preserve the blessings of liberty, and keep a government free: The people ought therefore to pay particular attention to these points in the choice of officers and representatives, and have a right to exact a due and constant regard to them, from their legislatures and magistrates, in the making and executing such laws as are necessary for the good government of the state.

XV. That all men have a natural inherent right to emigrate from one state to another that will receive them, or to form a new state in vacant countries, or in such countries as they can purchase, whenever they think that thereby they may promote their own happiness.

XVI. That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance. *

So, as it turns out, with respect to Pennsylvania, documented history tells us the people therein decided by their Constitution to protected themselves from specific abuses in the exercise of state government power, and, by the adoption of the federal Constitution and the 2nd Amendment they went on to specifically forbid the federal government to “infringe” upon the people’s already established right to keep and bear arms as established by their state Declaration of Rights.

There is no confusion regarding the documented intentions for which the 2nd Amendment was adopted. Our founders intended that the people of the States be armed with contemporary military grade fire arms. During our founders time that would have meant muskets, while in the 1940s that would mean the M1, while today the AR-16 automatic comes to mind.

Take note that the 2nd Amendment refers to military action and to arms kept by the people to secure a “free State”. This of course would include the people being armed with contemporary fire arms to deal with and defend against despotic and tyrannical leaders who would use their position of power to subvert and circumvent our constitutionally limited system of government, and who would ignore the defined and limited powers granted to our federal government by our Constitution.

Indeed, the 2nd Amendment was intended to insure the people would be well armed in order to defend against DOMESTIC ENEMIES and secure a free State!

The bottom line is, we have a Supreme Court and a Congress acting in rebellion to our Constitution and the documented intentions and beliefs under which it was adopted, just like the Obama Administration is likewise acting in rebellion to our Constitution. And, the 2nd Amendment was thoughtfully put into our Constitution by our Founders so the people, if they should decide to reject tyranny and maintain a free State, would be well armed to deal with tyranny. I believe that time is fast approaching.

JWK

***America we have a problem! We have a group of DOMESTIC ENEMIES who have managed to gain political power and whose mission is in fact to bring “change” to America ___ the dismantling of our military defensive power; the disarming of the American Citizen; the allowance of our borders to be overrun by foreign invaders, the diluting of our election process by allowing ineligible persons to vote; the circumvention of our Republican Form of Government which is now replaced with a 12 member committee vested with power to make law; the destruction of our manufacturing capabilities; the transferring of America’s technology to hostile foreign nations; the strangulation of our agricultural industry and ability to produce food under the guise of environmental necessity; the destruction of our nation’s health care delivery system, the taking of private property for purposes other than “public use”; the interference with our ability to develop our natural resources, namely oil, coal and natural gas to fuel our economy; the looting of both our federal treasury and a mandatory retirement pension fund; the brainwashing of our nation’s children in government operated schools; the trashing of our nation’s traditions and moral values; the creation of an iron fisted control unauthorized by our written Constitution over America’s businesses and industries; the devaluation of our nation’s currency, and, the future enslavement of our children and grand children via unbridled debt and inflation, not to mention an iron fisted government which intends to rule their very lives! ** *


#4

It’d be nice if it were worded nicely… but it isn’t.


#5

If the language is not worded nicely, imprecise as you seem to suggest, or there is dispute regarding what the Constitution means, the courts job is to then discover the documented intentions of our founders and enforce them.

Our very own Supreme Court, in Hawaii v. Mankichi, 190 U.S. 197 (1903) emphasizes the importance of legislative intent:

But there is another question underlying this and all other rules for the interpretation of statutes, and that is what was the intention of the legislative body? Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the lawmaking power will prevail even against the letter of the statute; or, as tersely expressed by Mr. Justice Swayne in 90 U.S. 380 :

“A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law.”

In the case of our Constitution, We, the People of the united States, are the lawmaker.

This very rule concerning legislative intent is also stated by Jefferson in the following words:

***“On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”***–Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

And the noteworthy Chancellor James Kent, in his Commentaries on American Law (1858) puts it as follows:

*** "The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void.***

You may also find a recent Supreme Court decision quite interesting in which the SCOTUS references the Federalist Papers 18 times in order to document the intent of our Constitution and enforce it. See:UNITED STATES v. LOPEZ, (1995). Also see: GREGORY v. ASHCROFT, 501 U.S. 452 (1991) and: Nixon v. United States (91-740), 506 U.S. 224 (1993).

Unfortunately, we have law students who are no longer taught the most fundamental rule of constitutional law [enforcing the documented intentions under which our Constitution was adopted]. They are taught case law, and then to apply “precedent” as set by our Supreme Court. But the fact is, our Constitution is the ultimate “precedent” and not supreme court rulings designed to circumvent the very intentions and beliefs under which our Constitution was adopted.

Also note that under the rules of constitutional construction 16 Am Jur 2d Constitutional lawMeaning of LanguageOrdinary meaning, generally

***”Words or terms used in a constitution, being dependent on ratification by the people voting upon it, must be understood in the sense most obvious to the common understanding at the time of its adoption…***”__ (my emphasis) The Court is not free to make the words or phrases in our Constitution mean whatever they so desire, but are confined to their original understanding as understood by our founding fathers. This fundamental rule was not followed in the Kelo decision in which Justice Stevens in delivering the opinion in Kelo effectively expanded the meaning of “public use” to allow the taking of private property for purposes other than what our Constitution declares.

But let us now look at a few other authoritative sources:

***The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it.***_____HOME BLDG. & LOAN ASS’N v. BLAISDELL, 290 U.S. 398 (1934)

***“A constitutional provision is to be construed, as statutes are, to the end that the intent of those drafting and voting for it be realized."***(Mack v Heuck (App) 14 Ohio L Abs 237)

***“No part of the constitution should be so construed as to defeat its purpose or the intent of the people in adopting it.”***Pfingst v State (3d Dept) 57 App Div 2d 163 .

"Where language used in a constitution is capable of two constructions, it must be so construed as to carry into effect the purpose of the constitutional convention.” Ratliff v Beal, 74 Miss.247,20 So 865 .

***"In construing federal constitutional provisions, the United States Supreme Court has regularly looked for the purpose the framers sought to accomplish.”***Everson v Board of Education, 330 US 1, 91 L Ed 711,67 S Ct 504, 168 ALR 1392.

"The primary principle underlying an interpretation of constitutions is that the intent is the vital part and the essence of the law." Rasmussen v Baker, 7 Wyo 117, 50 P 819.

I could provide countless other quotes to establish the fact that enforcing the documented intentions and beliefs under which our Constitution was adopted is one of the courts primary functions, but heck, our very own Congress is aware it is required to be obedient to the intentions and beliefs under which our Constitution was adopted although they ignore it today:

***“In construing the Constitution we are compelled to give it such interpretation as will secure the result intended to be accomplished by those who framed it and the people who adopted it…A construction which would give the phrase…a meaning differing from the sense in which it was understood and employed by the people when they adopted the Constitution, would be as unconstitutional as a departure from the plain and express language of the Constitution.”***_____ Senate Report No. 21, 42nd Cong. 2d Session 2 (1872), reprinted in Alfred Avins, The Reconstruction Amendments’ Debates 571 (1967),

JWK

***Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean. ***


#6

That’s some massive copy and pasting you do around the web. But anyway, I was more commenting on how, if I were a founding father writing a Constitution, I’d probably want to make it a wee bit more clear than that.


#7

I’d say that it was rather more than a bit “wee clear” to both authors and citzenry when and as written. That it is unclear to current readers, while written within a document almost wholly devoted to limiting the scope and reach of a federal government, and one that actively asserts the primacy of the people and the states respectively, says more about current readers than it does the authors.

Two things are obvious to the most cursory of readers:

  1. The Amendment had nothing to do with the nation’s armed forces, present or future.
  2. It had nothing to do with protecting the people’s right to hunt, for sport or subsistence.

One is left with few other real options in interpreting it, even after only a cursory examination.


#8

Uh huh. Some examples, off the top of my head.

  1. Why include the militia part? Was the intention to make for armed militias, or an armed populace?
  2. What is the limit of infringement? Should everyone get a bazooka, or if everyone can get handguns and rifles with ease, but not machine guns or bombs, does that count as not infringing?
  3. What does firearm mean? Surely the meaning in 1785 was different than today, mainly because they were using muskets. Did the founding fathers intend for everyone to have an automatic rifle?
  4. Is not allowing guns in certain places infringement? How about only private property, or a few public places as well? Should people be allowed to have guns in a doctor’s office, or in a school?
  5. Are restrictions based on age infringing?
  6. What about restrictions based on criminal behavior in the past? Does someone’s past dangerous activities, such as being a previous felon, warrant them to lose the right to own certain weapons?
  7. Should I be allowed to fire my gun wherever and whenever I want? Does restricting my activities with firearms count as infringement of “bearing arms”?
  8. If I cause damage to someone’s property, can my gun be taken away for acting irresponsibly, the same way I can lose driving privileges?

A couple of these may be obvious, but certainly not all of them are. I think it should be obvious that complete free range with weapons and how we use them was not what the founding fathers had in mind. There are times when firing a weapon is simply too dangerous and cannot be permitted. On the other hand, over-restriction is also off the table. So the exact definition of what it means to bear arms, and what an infringement on that right is, is left unclear in the wording of the second amendment. Does bearing arms mean using guns? Does it mean owning guns? Does it just mean the ability to get a gun, but not all guns? etc, etc.


#9

So, if you read “bearing arms” as meaning using weapons, then bans on certain types of guns is not infringing on the right “to bear arms” but restrictions placed on where you can use a gun would be. On the other hand, if you read “bearing arms” as meaning owning weapons, then bans on guns is out of the question, but maybe restrictions on where and when you can use them is not. Or maybe it’s a combination of the two, or neither of them.

It’s hardly as clear cut as you make it out to be.


#10

Ignoring the various court rulings that have held otherwise, I don’t think there’s the slightest doubt that the Founders intended for the individual to be able to possess any form of armament, in particular those of what we now consider a military nature, and that they meant it for all men, in all places, at all times.


#11

Uh, no:

District of Columbia v. Heller:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

There is a long standing notion that not all weapons are protected, which the Court cites in their decision, and is why they made the decision that the second amendment, like most rights, is not unlimited.


#12

There is a long-standing notion on the part of the Court, itself subject to change. Heller v is hardly the last word on the matter and notable only for beating back what were clearly new traditions which had gone so far as to make the 2nd Amendment meaningless. The Founders had absolutely no problem with individuals possessing the most sophisticated of the military hardware of the day. In fact, they hired them and licensed them for employment of the very services before, during, and after the creation of the US Navy, when they used privateers against our enemies. They didn’t lend them cannon and cannonade, nor require its licensing and return afterwards, for they presumed upon private citizens to acquire it and outfit their ships with it, all on their own.


#13

Well, you weren’t one of the founders, and I gave sufficient documentation of their intentions in POST NO. 3 If that documentation doesn’t clarify for you the intentions of the founders regarding why the 2nd Amendment was adopted, it is only because you choose to be an intentional nuisance, which I see you are by the various questions you posted off the top of your “head“ which are irrelevant as to why the 2nd Amendment was adopted. The fact is, the intentions for adopting the 2nd Amendment, along with the other Nine, is clarified in the Resolution of the First Congress Submitting Twelve Amendments to the Constitution; March 4, 1789

“THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added .

The simple truth is, after creating our federal Constitution which became effective in 1789, ten amendments were quickly adopted [1791] which were intentionally designed ***“to prevent misconstruction or abuse of “ the new government’s “powers“***. Got it?

JWK


#14
  1. While “militia” was given as a reason for the “right of the people to keep and bear arms,” it can be argued that it’s far from the only one. If you trace the origins of the U.S. Bill of Rights, it goes back (via the Virginia Bill of Rights) to the original English Bill of Rights, which specified the right of the Englishman to bear arms in his own defense. Furthermore, every article in the English Bill of Rights came about as a result of specific incidents of abuse by the government.
  2. According to 2nd Amendment, I’m allowed to have nukes. I don’t like the idea of nukes or even RPGs in the hands of Joe Average (nor am I thrilled with them being in the hands of governments), but the solution to that isn’t to determine that the 2nd Amendment doesn’t mean what it says (like the left has been doing ad nauseum).
  3. I missed the word “firearm” in the 2nd Amendment; it says “arms” period. That’s any and all arms.
  4. I don’t imagine that the Founding Fathers intended for arms to be allowed in prisons or on private property where the owner doesn’t wish for them to be, or for minors (who, in common with incarcerated criminals and released convicted felons, would not be considered fully “people” in the eyes of the Constitution; otherwise, they’d be able to vote). But otherwise, yeah, it’s an infringement.
  5. See above about age.
  6. See above about criminals; they have neither the right to liberty nor (in the case of felons) to vote.
  7. The right is to “keep and bear arms,” not to fire them indiscriminately.
  8. Driving is a privilege; gun ownership is a right. You have to be proven unworthy of the right in criminal court for it to be denied you. And it can and would be.

There’s no way in the English language to interpret the right to “keep and bear arms” in any way that any a ban on ownership of any type of arm to law-abiding adults is not an infringement.


#15

It’s only unclear to people who want to find a way around it’s meaning.


#16

“the right of the people to keep and bear arms, SHALL NOT BE INFRINGED.” What could be more clear than that?


#17

Bingo!


#18

And why isn’t the first amendment treated with the same blind acceptance? If all people should be allowed to own nukes, surely we must allow slander and threats as free speech?


#19

Uhhhh…why not write the WHOLE sentence when you try to make that “simple language” point. It is anything BUT simple…even though I agree entirely with the notion of every person having the right to keep and bear arms (exceptions…felons/mentally unfit/illegals).
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.

If they had only listened to you and dropped the first part…things would be a lot simpler.


#20

Note the difference between “shall not be infringed” period in the 2nd Amendment, and “Congress shall make no law” in the 1st.