Where debating everything under the sun is only the beginning

Quote from: US constitution preamble

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Why did I highlight domestic tranquility? Precisely because of rebellions and slave uprisings (i.e., rebellions by another name).

As @jax said, "I assume you don't believe this, but make an argument for the sound of it."

¹ In other words, long before any enemy has had a chance to set foot on US soil (not counting some small colonized islands in the middle of the Pacific).

[Pennsylvanians] passed a militia-bill, by which those, who bear arms, might be forced into regular bodies, subject to discipline, and rendred more able to serve their country, and more terrible to their enemies. Which being the first militia-act ever passed in Pensylvania, and containing some very remarkable passages, in regard to the scrupulosity of those, who refuse to bear arms for the defence of their country and of their own liberty, property and religion; the reader will find it at the bottom of the page.

[Apparently the said bottom of the page:] An Act for the better ordering and regulating such as are willing and desirous to be united for military purposes within the province of Pensylvania, passed Nov. 5, 1755.

Does this mean that all American may own guns, or only those who serve in a militia? Since the 1930s, nine federal appeals courts have supported the latter ‘collectivist’ position and rejected the former. Some states, on the other hand, have allowed individual gun ownership.

The Supreme Court had never definitively interpreted the Second Amendment. However, in 2007[…] (District of Columbia v. Heller). […]

On June 26, 2008 the US Supreme Court ruled by a majority of 5–4 that a ban on the private possession of handguns in Washinton DC was unconstitutional. It ruled that the constitution ‘protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home’. The ruling enshrines for the first time the individual right to own guns and arguably limits efforts to reduce their role in American life. […] ‘It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for wahtever purpose.’ It was felt that the Constitution gives authorities the tools to combat gun abuse, including measures regulating handguns. The central issue therefore is how far the right to possess guns can be regulated.

From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.” [Footnote 8] It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit.

The term “bear arms” is a familiar idiom; when used unadorned by any additional words, its meaning is “to serve as a soldier, do military service, fight.” 1 Oxford English Dictionary 634 (2d ed. 1989). It is derived from the Latin arma ferre, which, translated literally, means “to bear [ferre] war equipment [arma].” Brief for Professors of Linguistics and English as Amici Curiae 19. One 18th-century dictionary defined “arms” as “weapons of offence, or armour of defence,” 1 S. Johnson, A Dictionary of the English Language (1755), and another contemporaneous source explained that “[\b]y arms, we understand those instruments of offence generally made use of in war; such as firearms, swords, & c. By weapons, we more particularly mean instruments of other kinds (exclusive of fire-arms), made use of as offensive, on special occasions.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 37 (1794).[Footnote 8] Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves,” as was done in the Pennsylvania and Vermont Declarations of Rights. The unmodified use of “bear arms,” by contrast, refers most naturally to a military purpose, as evidenced by its use in literally dozens of contemporary texts.[Footnote 9] The absence of any reference to civilian uses of weapons tailors the text of the Amendment to the purpose identified in its preamble.[Footnote 10] But when discussing these words, the Court simply ignores the preamble.

Justice Stevens contends, post, at 15, that since we assert that adding “against” to “bear arms” gives it a military meaning we must concede that adding a purposive qualifying phrase to “bear arms” can alter its meaning. But the difference is that we do not maintain that “against” alters the meaning of “bear arms” but merely that it clarifies which of various meanings (one of which is military) is intended. Justice Stevens, however, argues that “[t]he term ‘bear arms’ is a familiar idiom; when used unadorned by any additional words, its meaning is ‘to serve as a soldier, do military service, fight.’ ” Post, at 11. He therefore must establish that adding a contradictory purposive phrase can alter a word’s meaning.

I have to side with Scalia on this one. American law is a direct descendant of English common law, where the right to bear arms seems to refer to an individual's right.

The brief referred to in the opinion seems more colored by political opinion than serious analysis. They sweep contradicting examples under the rug as "unidiomatic" (p.26) as well as "awkward and idiosyncratic" (p. 27). That's begging the question. The phrase "bear arms" can only refer to serving in an armymilitia, therefore when you use it to refer to individuals it's unidiomatic? Spare me. That's what you're trying to prove, so you can't use it as an argument.

In the course of the debates in the House and Senate, Madi­son’s original provision [of BoR a.k.a. the first constitutional amendments] was edited and rearranged. A clause dealing with those religiously scrupulous of bearing arms was dropped when an Anti-Federalist congressman expressed alarm that the new federal government might use this clause as pretext for declaring who was scrupulous and use this power to disarm the state militias. Congress also dropped references to the militia as composed of the body of the people and efforts to limit the role of the mili­tia to common defense.

Legally, "seems to" doesn't cut it, because a bunch of other meanings may seem to be found in the same words in different contexts. What matters is to get as indisputably close to the primary current meaning as possible. So, it either *primarily* refers to an individual's right or *alternatively*. The difference between the two is crucial, as is also the context by which it can be determined whether the primary or the alternative meaning is the current one.

Indeed, “[t]he language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted.” Ex parte Grossman, 267 U.S. 87, 108-09 (1925).

The English right to arms emerged in 1689, and in the century thereafter courts, Blackstone, and other
authorities recognized it. They recognized a personal, individual right.

An armed mob would be worse, and so an armed group posed a particular risk of causing terror. The commission of justices of the peace, from 1590, charged them based on Northampton to inquire into persons who went or rode “in companies, with armed force against the peace.” Butt v. Conant, 129 Eng. Rep. 834, 849 (C.P. 1820).

After 1689, the law wrestled with reconciling this concern and the arms right. Hawkins concluded that “persons of quality” not only could wear common weapons but also could “hav[e] their usual number of attendants with them, for their ornament or defence, in such places, and upon such occasions, in which it is the common fashion to make use of them.” Hawkins, ch. 63, § 9. Yet “persons riding together on the road with unusual weapons, or otherwise assembling together in such a manner as is apt to raise a terror in the people,” were guilty of unlawful assembly. Id., ch. 65, § 4.

The historical narrative that petitioners must endorse would thus treat the Federal Second Amendment as an odd outlier, protecting a right unknown in state constitutions or at English common law, based on little more than an overreading of the prefatory clause.

Quote from: p. 4

The English right to arms emerged in 1689, and in the century thereafter courts, Blackstone, and other
authorities recognized it. They recognized a personal, individual right.

The English Declaration of Rights also asserted: “That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.” The right was lim­ited to Protestants and the type of arma­ment further restricted by social class. Finally, the right was limited in scope: Parliament retained the power to regu­late or restrict the right as it saw fit to promote public safety and the general welfare of the nation.

it restricts to a specific group and the little words "as allowed by law" makes it subject to further regulation […] In no way does it look like an inalienable (individual) human right.

And note that it says "have arms", not "bear arms" which could be a idiomatic expression.

The right of his majesty’s Protestant subjects, to have arms for their own defence, and to use them for lawful purposes, is most clear and undeniable. It seems, indeed, to be considered, by the ancient laws of this kingdom, not only as a right , but as a duty ; for all the subjects of the realm, who are able to bear arms, are bound to be ready, at all times, to assist the sheriff, and other civil magistrates, in the execution of the laws and the preservation of the public peace. And that this right, which every Protestant most unquestionably possesses individually , may , and in many cases must , be exercised collectively , is likewise a point I conceive to be most clearly established .

Quote from: ersi on 2017-10-17, 16:43:10

it restricts to a specific group and the little words "as allowed by law" makes it subject to further regulation […] In no way does it look like an inalienable (individual) human right.

Right, that is the key American innovation, at least compared to English common law.

Although [The Dissent of the Pennsyl­vania Minority] did not garner much interest at the time it was written, modern commenta­tors, particularly those associated with gun rights, have made this text central to their interpretation of the Second Amendment. Indeed, this Anti-Feder­alist text played a key role in the 2008 Supreme Court decision on the meaning of the Second Amendment, District of Columbia v. Heller. In his opinion, Jus­tice Scalia echoed the gun rights view that this Pennsylvania text was the key to unlocking the meaning of the Sec­ond Amendment. Justice Stevens, by contrast, questioned the constitutional value of using a text that was a minority voice of a single state as the lodestar for reinterpreting the Second Amendment.

In the low countries, where power rested mainly in the hands of cities and citizens rather than those of lords and bishops, well-regulated city militias were seen as crucial to ensuring safety and security. Including from their own supposed lords.

So DC banned basically the right to ownership of guns, to have them at home. This tells me two things. First, since somebody was able to came up with such a law, gun rights are apparently not so thoroughly ingrained and enshrined in the American legal system after all. Second, the case has a connection to the 2nd amendment only in terms of keep arms, not bear arms, i.e. carry them around

On June 26, 2008, the Supreme Court affirmed the Court of Appeals for the D.C. Circuit in Heller v. District of Columbia.[3][4] The Supreme Court struck down provisions of the Firearms Control Regulations Act of 1975 as unconstitutional, determined that handguns are "arms" for the purposes of the Second Amendment, found that the Regulations Act was an unconstitutional ban, and struck down the portion of the Regulations Act that requires all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock". Prior to this decision the Firearms Control Regulation Act of 1975 also restricted residents from owning handguns except for those registered prior to 1975.

The majority opinion, written by Justice Antonin Scalia, and the primary dissenting opinion, written by Justice John Paul Stevens, are considered[citation needed] examples of the application of originalism in practice.........continued

Justice Stevens, by contrast, questioned the constitutional value of using a text that was a minority voice of a single state as the lodestar for reinterpreting the Second Amendment.

The supposed lords being bishops and kings? This confrontation was common everywhere in medieval Europe, AFAIK, certainly in Hanseatic cities that had plenty of autonomy.

And the autonomy normally originated with an emperor's or a prince's grant, so in this sense the so-called free cities were never free in the libertarian sense.

.......the US constitution, which should be seen as a direct continuation of the English legal tradition.

The so-called Founding Fathers were essentially the corporate money me of the day and Freemasons (even see their placer on the banknotes by the way) and the wonderfully "principled" heroes included slave owners and rights only if white. Big deal.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

I was a bit too restrictive in the way I phrased it, but the phenomenon was certainly strongest in the low countries, the Hanseatic League in general, and northern Italy. The difference is easily illustrated by the relative prominence (or lack thereof) of civilian symbols like city halls and belfries compared to authoritarian symbols like churches and cathedrals.

I think the Dutch democratic tradition relates mainly to the collective fight against water for the betterment of all. It's a physical necessity for relative democracy that is just not shared by countries without a sea problem. Perhaps the more collective culture in Japan and East Asia in general can be similarly explained.

Besides practical aspects like cities getting a say in the fiefdom's budget (make infrastructure, not war), it established the legal precedent that every new lord had to visit all the cities he was now a lord of in order to explain his intentions and planned policies before he was accepted.

By contrast, I do understand its relevance to the US constitution, which should be seen as a direct continuation of the English legal tradition.

That same year, 1640, "the first definite indication of outright enslavement appears in Virginia."[9] John Punch, a Negro indentured servant, escaped from his master, Hugh Gwyn, along with two white servants. Hugh Gwyn petitioned the courts, and the three servants were captured, convicted, and sentenced. The white servants had their indentured contracts extended by four years, but the courts gave John Punch a much harsher sentence. The courts decided that "the third being a negro named John Punch shall serve his said master or his assigns for the time of his natural life here or else where." This is considered the earliest legal documentation of slavery in Virginia. It marked racial disparity in the treatment of black servants and their white counterparts, but also the beginning of Virginian courts reducing Negros from a condition of indentured servitude to slavery.

Again, there's something odd in the way you formulate it. The precedent could not have been in that the new lord had to go around to make himself known. That it's a common-sense thing to do was well established by Charlemagne, not to mention Roman emperors. They knew that their visits create a sense of presence, so that the people know who the ruler is and how the ruling goes. All rulers who neglected this are consequently either forgotten or are known as bad or lazy rulers.

The precedent could have been in that it was a *legal* precedent and perhaps there were laws regulating the meeting, so it was prescribed what the lord could assert and what he could not. When he went over the line, the city magistrates would refer to the law as the reason for not taking him seriously. Was it like that perhaps?

More specifically, it's a continuation of what had become of the English legal tradition in the colonies.

I do however believe that understanding America is impossible without integrating a concept of New Amsterdam's influence. And to properly understand New Amsterdam, you need to understand the Dutch Republic.

But of course I must respect your national pride as you try to smuggle Dutch influences into the foundering principles of USA.

Many American geographical names (Harlem, Flushing, Brooklyn), landmarks (Wall Street), families (Roosevelt, Van Buren) and words (dollar, cookie, boss, coleslaw) originate from the 17th-century Dutch colony New Netherland on Manhattan. Some five million Americans are of Dutch descent. The Dutch conceptions of religious tolerance and multiculturalism had a tremendous impact on the construction of the independent American Republic. The American Declaration of Independence (1776) is so similar to the Dutch Act of Abjuration (1581) that John Adams went as far as to say that “the origins of the two Republics are so much alike that the history of one seems but a transcript from that of the other.” According to American author Russell Shorto, it is not the early English settlements or the Pilgrim’s colony that represents a model of what America was to become, but rather the Dutch settlement on the island of Manhattan, “the first tolerant, multiethnic, upwardly mobile society on America’s shores.”

It shows most of the places I saw when I visited it. Hopefully nicely familiar to you too 

My basic argument is that, unlike the Puritanical English colonies, certain liberties that Americans call central to their core first existed in New York -- and tend to date back to New Amsterdam.

Only four of the original state constitutions singled out the right to bear arms for explicit protection: Pennsylvania, North Carolina, Vermont, and Massachusetts.

Never been there. The place holds no particular appeal to me.

Sure, sure, but it's a hopeless case of overanalysis, particularly because you have apparently forgotten the topic by now. Are you saying that there's Dutch influence in the 2nd Amendment or in the way Americans conceive of gun rights? Are you desperately hoping some such influence would be found?

Quote from: ersi on 2017-10-18, 14:17:59

Sure, sure, but it's a hopeless case of overanalysis, particularly because you have apparently forgotten the topic by now. Are you saying that there's Dutch influence in the 2nd Amendment or in the way Americans conceive of gun rights? Are you desperately hoping some such influence would be found?

No, like I said the meaning of 18th century English coupled with (American-)English common law is required to properly interpret that one.

This pretty much exhausts the need for analysis.

We now know that some claim that "bear arms" can be idiomatic, implying an organised militia, but we don't have to take their word for it because it says "well regulated militia" right there in the same sentence.

The meaning comes from the need of the people to raise a militia...

...and the fact that the weapons were restricted by the British.

Given you don't hand someone a gun and suddenly they are a soldier, owning a gun for other means is the best way to provide innate proficiency.

Compared to England, America was a well-armed society, but the guns owned by citizens tended to be those of greatest utility in a rural agricultural society. Pistols were generally a luxury good and only a small percentage of the population opted to acquire them. Heavy, large-bore military style mus­kets with bayonets, the type of weapons most essential to a well-regulated mili­tia, were not what most citizens wanted for private use. One of the main goals of government firearms policy in the Founding era was to encourage owner­ship of these military-style weapons.

f anything it confirms the right to have guns and form civil defense forces.

That's the idea you're fighting with the second amendment crowd, not he wording of the document...