James Madison (Photo: Wikipedia).
Actor Ed Asner and comedian Ed Weinberger have a problem with gun owners. According to these two constitutional luminaries, the NRA and their ilk (this includes the Supreme Court) have been misinterpreting the Second Amendment for years.
The right to keep and bear arms doesn’t apply to individual citizens, as the Supreme Court ruled in 2008, but only to state militias. James Madison and the rest of the Founding Fathers actually supported strict gun control, as evidenced by Madison’s original draft of the Second Amendment as well as state constitutions.
If you’ve been a member of the firearms community for any length of time, you’ve likely heard the “state militia argument” before. Asner and Weinberger’s recent Salon article is yet another iteration of this tired line of thinking. A&W (as the authors will be called through the remainder of this piece) take the “Founding Fathers” as a monolithic entity, dress them up in a smattering of primary source research, and put everything together to sell their new book “The Grouchy Historian.”
Sounds like an early Christmas present to me. Let’s start with their most egregious characterization.
In A&W’s second paragraph they argue that the NRA, “their hired hands in Congress,” and the Supreme Court support “the unfettered right of everyone to own, carry, trade and eventually shoot someone with a gun.” In the conclusion they double down on this idea, claiming that pro-gun advocates believe the Second Amendment “can neither be limited nor regulated.”
This is a classic straw-man argument. Of course the firearms community doesn’t believe that people should have the right to “eventually shoot someone with a gun.” But they also (generally speaking) don’t believe in total, unregulated access to firearms, either.
In Scalia’s majority opinion in D.C. vs. Heller, he pointed out that Second Amendment rights are not unlimited. Like every other constitutional right, gun rights can be regulated to a certain extent. Some in the pro-gun community disagree with Scalia’s interpretation, and those arguments can be made persuasively. But A&W’s characterization of gun owners in general and of Justice Scalia in particular totally ignores their openness to specific, limited regulation of firearm ownership.
Now that we have that piece of sophistry out of the way, let’s turn to A&W’s primary argument. They hold that the Founders intended for gun rights to apply exclusively to state militias. They use as their evidence James Madison’s first draft of the Second Amendment, which reads:
The right of the people to keep and bear arms shall not be infringed, a well-armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
Obviously, this first iteration of the Second Amendment could still guarantee individual gun rights (“the right of the people”), but for the sake of argument let’s assume that A&W are right on this one. Let’s pretend that in its first iteration of the Second Amendment, James Madison, George Washington, et al., meant to guarantee the right to keep and bear arms exclusively to militias.
SEE ALSO: How the Democrats Have Flip-Flopped on the Second Amendment
But since when do we take first drafts as evidence for intent? If we’re going to determine what the “Founders believed,” doesn’t it make more sense to consider the final language they all voted to adopt? As Scalia notes in his decision, “It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process.” Even if Madison’s first version didn’t guarantee individual gun rights, the final version did, as Scalia argued persuasively. And it’s this final version that comprises the law of the land.
I wouldn’t want my editor to publish the first draft of this article. I wouldn’t want readers trying to determine my “intent” from the first draft, either. Intent should be determined from the final published version and from outside documents, not from first drafts.
The United States wasn’t founded on gun control. The Founders knew that individual citizens must maintain the right to bear arms in order to form state militias, fight back against tyranny, and preserve the freedoms they fought (with guns) to protect. Five Supreme Court Justices understood this in 2008. If a comedian and an actor don’t get it, I’m not too concerned.
Unfortunately, I have witnessed first hand the changing of the teachings of this. I have three sons. All grown and out of the house now.
My oldest son learned the 2A, as I did (in the 1960s) in its classical wording as direct from the US Constitution.
My youngest son learned it as “the militia/military has the right to bear arms”. My middle son saw the beginning of the wording changed and his 2A learning left out the part of “the right of the people” was dropped.
They all went to the same public school system. If I was sending a kid to school these days, I’d have to seriously consider a private school which still taught you not only history as it was originally recorded but to be an independent thinker and how to defend yourself from forced groupthink.
First of all , the founders believed a standing Army was the greatest threat to freedom . @nd of all the American Revolution was started when the british went to seize the collective powder reserves at Conco0rd april 19 1775 where the first patriot ,a black man was shot . Washington believed that owning a firearm was a duty not a right . As far as the 2nd amendment applies to a collective while all the other amendments apply to individuals is nonsense on its face Why would the writers of the “BTLL OF RIGHTS ” put a STATE’S power along with citizens rights ? They would not . Individuals have rights , states , Governments ,Body politic have powers not rights . Organized milita’s came about at the end of the 19th century .Before that we had private militas like TR’s ROUGH RIDERS .If you want to learn something about this country you have to read history books written before WW2 . That’s when progressive writers started to dominate the field and change our history .
Only three Constitutional Rights contain the phrase “the Right of the People” yet only two are considered INDIVIDUAL rights? Only one of these Rights contains the phrase “shall not be infringed”, yet it is frequently infringed upon. What is wrong with our judiciary that they cannot (or will not) properly define the Second Amendment?
In the 240 years since the Constitution was written, American English has evolved. For example, where the Framers used “well-regulated”, then, we use “self-disciplined,” today. They also placed two or more independent clauses, sometimes not related, in the same sentence. So, the Second Amendment, today, might read, “A self-disciplined militia is necessary to the security of a free state. The right of the people to keep and bear arms shall not be violated.”
From Wikipedia, “In colonial era Anglo-American usage, militia service was distinguished from military service in that the latter was normally a commitment for a fixed period of time of at least a year, for a salary, whereas militia was only to meet a threat, or prepare to meet a threat, for periods of time expected to be short. Militia persons were normally expected to provide their own weapons, equipment, or supplies…” Note, in order to be an effective fighting force in today’s world, one must have assault weapons (yes, with an “A” setting of the safety lever) with plenty of ammunition in high-capacity magazines.
The NRA DOES NOT advocate the unconditional access to firearms. In fact, they support application of the laws already in existence to prevent prohibited persons from acquiring firearms, a policy not, or weakly, applied by the previous administration.
As pointed out in JLA’s post, several of the Founding Fathers wrote, outside of the Constitution, that ordinary citizens should keep and bear arms specifically to keep a potentially runaway government in check.
militia’s signed for a length of time which caused Washington and Bennidict Arnold (who was at one time the patriots greatest generals and a good friend of Washington) a lot of grief . When Arnold went up the Kennebeck river to attack Quebec on New Years half his force was going home which forced him to attack during a blizzard , with terrible results.
So let me see if I have this right – the Bill of Rights is protection of the individual against the power of the state except for the 2d Amendment, which is a collective right. Or are these constitutional scholars trying to tell us that the entire Bill of Rights is collective? That the government has freedom of the press, religion, freedom from unreasonable search and seizure…that must be it. The founding fathers were protecting the state against the power of the individual citizen…
Nothing Asner says about the intent of the founding fathers is relevant to the discussion. A lot of it is contradictory in that he used versions of the 2nd amendment that were NOT adopted. Everybody knows he is not unbiased and therefore, what he says about it is suspect. What CAN be said, and which would be true, is that the American Revolution began as a result of the British attempting to impose gun control on the American colonials-among other issues, but gun control was the spark that ignited full scale war.
This quote from the article: “The Founders knew that individual citizens must maintain the right to bear arms in order to form state militias”, is the same incorrect foundation that created incorrect opinions like those held by “A&W” in the first place. Those literate enough to read understand that “The Right of the People to keep and bear Arms” is not in order to FORM state militias but to insure that once these government militias are formed that stayed “WELL REGULATE” by superior Arms held by the People. If this is not the correct meaning of the Second Amendment then the words “well regulated” become “superfluous” and as such can’t be considered as correctly included in any legal writing.
In spite of the distracters, the Supreme Court in D.C. v Heller, 2008 got it right:
“There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.”
Obviously millions of otherwise patriotic Americans need to become better readers than is required to read commonly printed 6th grade level newspapers, books and internet postings. For those so inclined, free government lessons are available being distributed as Supreme Court cases. The reading and study of 50 Supreme Court cases is a great beginning. It really “ain’t” that hard:
Start here: https://www.law.cornell.edu/supct/html/07-290.ZO.html
Useful idiots!
I wish you wouldnt have even given them this publicity.
This country was founded by White warriors and farmers. The two “actors” can read well. They just don’t want White people to have guns.
Its incredible how ignorant these folks who, apparently, cant read plain English, are.
Actually the US was founded on gun control, because of King George’s desire to disarm the ordinary citizen. I believe the British soldiers murdered eight Americans on Boston Commons in an effort to disarm John Hancock. The effort to forcibly disarm Hancock failed.
No, the (((Royals))) just got mad we quit paying them free money, so they attacked us. God Shave the Queen!
Getting paid huge sums of money for doing nothing of any real value, the two Eds, above, and their fellow “celebrities”, which includes sports celebrities, struggle to find something to do or say to feel relevant. But as I said in the Sheryl Crow article last week, expertise or notoriety in one area (entertainment, for Pete’s sake) DOES NOT, somehow, instantly, completely and automatically translate into skill in another (psychology, sociology, political science or anything else). Having no specialist knowledge on anything other than acting, their opinions on ANYTHING have no more value than anyone else’s opinion.
Besides the arguments “As Written”, how about “As Applied”. Did the founders act upon their so called belief that guns are only a right of the state militias and not the people? Were firearms required to be serialized, registered, owners required to submit to background checks, safe storage requirements, etc?
Is the argument that the founders really wanted all of this, but wrote the law so that in the far future, all of their intentions would come to pass, as technology and the emotion and mental evolution of man improved through the ages.
I run into these folks all the time, that think that the Constitution is a “Living & Breathing” Document and means whatever we need it to mean. Of course they are 100% wrong and the United States Constitution is a binding Contract between the Government, who derives all of their power from the consent of the Governed.
Exactly… Now you the basis of how Lincoln started the Civil War. At the time the Republicans were the radicals claiming the US Constitution was not to be strictly interpreted. From this rose a multitude of of Constitutional issues, among them, taxes and slavery.
Lincoln even told the 1st meeting of Congress in July 1861 that he had no choice but to interpret the Constitution for himself, and that hhe might have donee wrong.
He did and his precedents stuck. He also admitted shortly before his death that he had committed treason. Why aren’t we taught these things as they are history?
We see the results today in the Democrat far worse.
Michael- Deo Vindicabamur
Classical Historian Western Civilization (What’s left of it.)
To be strictly accurate, the statement needs to be slightly reworded as follows: The United States was founded DUE TO gun control…
1774: The Royal Governor of Massachusetts dissolved the colony’s elected assembly, and began to rule by decree. American colonists started to stock up on muskets, powder, cannons, and other implements of war.
April 1775: he sent troops to seize these weapons, Americans resisted, and the American Revolution resulted.
Never forget that the Revolution was started with privately held weapons of all sorts. The Right to keep and Bear ARMS is an absolute right, not limited merely to firearms. The 2nd Amendment did NOT create this RIGHT, it merely extrapolated on what is a natural, God given RIGHT. However, the reason they WON is organization. No, you are not required to be part of a militia, but we all should be (as a social norm) with the sole purpose of defending liberty from domestic tyranny and as a final defense against invasion. It should be an impeachable felony to attempt to disarm the American people, or to restrict that absolute, uninfringeable RIGHT. The Militia should be the enforcement arm that deals with internal traitors. We have fallen far from these ideals, but we could pull ourselves up by our bootstraps and make it happen. One of my ancestors with my father’s full name died from British musketballs on Lexington Green, another was a Militia Captain, who led the 2nd charge on the bridge at Concord that broke the Redcoat ranks and sent them into that famous 60 mile retreat under fire. So, they were both members of Militias. It is estimated that by the end of the day 25,000 militiamen had gathered in the general area, these men would go on to give a bloody nose to British troops at Bunker Hill, only retreating when they ran out of powder and ball
You sir, are right on and thanks for stating the real case for and of America. You sir are a fine American.
“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.”
There are TWO (2) Entities in the 2nd Amendment, the State, which was considered a Nation at that time, hence each state has its own Constitution and the People, which is the individual person of each state.
That is the reason for the “comma’s” in the sentence to force a pause, showing what the different entities are and that both cannot be infringed upon!
The statement that most gun owners don’t want full unregulated access to firearm is refuted day after day, week after week in this forum as well as many others. The 2A is pretty clear, we the people are the militia and should have free access. Of course there are exceptions, but the 10s of thousands of regulations on firearms is ridiculous pandering done by politicians to gain favor and possibly a vote.
Even if we accept the 1st draft as being the writer’s true intent, A&W’s argument is still completely wrong! Who made up the state militias? Everyday citizens who were required to provide their own arms and that those arms be “of the type in use of the day”, that’s who. The state militias were composed of every able bodied male in the state. If you really wanted to enforce the ‘Militia Clause’ I’d be fine with that. Every able bodied, law abiding citizen would be required to own an M16 assault rifle, an M4 carbine and/or an M249 squad automatic weapon and a modern 9x19mm semiautomatic handgun, and you can add a Mossberg 590 and/or a Benelli M4 to go with them if you like.
If you want to see what the Founders really thought about guns, take a look:
“A free people ought to be armed.”
– George Washington
“A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government.”
– George Washington
“The thing that separates the American Christian from every other person on earth is the fact that he would rather die on his feet, than live on his knees!”
– George Washington
“Firearms are second only to the Constitution in importance; they are the peoples’ liberty’s teeth.”
– George Washington
“Guns in the hands of citizens may be used at individual discretion… in private self-defense.”
– John Adams
“No free man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, at last resort, to protect themselves against tyranny in government”
– Thomas Jefferson
“The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed.”
– Thomas Jefferson
“The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes…. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”
– Thomas Jefferson (quoting Cesare Beccaria)
“Americans have the right and advantage of being armed, unlike the people of other countries, whose leaders are afraid to trust them with arms.”
– James Madison
“The right of the people to keep and bear arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country.”
– James Madison
“Any man who would trade essential liberties for a little temporary security deserves neither liberty nor security.”
– Benjamin Franklin
“Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? … If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?”
– Patrick Henry
“Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined…. The great object is that every man be armed. Everyone who is able might have a gun.”
– Patrick Henry
“The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government.”
– Patrick Henry
“To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike, especially when young, how to use them…”
– Richard Henry Lee
“A militia, when properly formed, are in fact the people themselves … and include all men capable of bearing arms.”
– Richard Henry Lee
“Necessity is the plea for every infringement of human freedom. It is argument of tyrants. It is the creed of slaves.”
– William Pitt
“To disarm the people is the most effectual way to enslave them.”
– George Mason, Father of the Bill of Rights
“I ask sir, what is the militia? It is the whole people except for a few politicians.”
– George Mason, Father of the Bill of Rights
“… arms … discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property…. Horrid mischief would ensue were (the law-abiding) deprived the use of them.”
– Thomas Paine
“The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”
– Joseph Story, U.S. Supreme Court Justice 1811-1845
“The ruling class doesn’t care about public safety. Having made it very difficult for States and localities to police themselves, having left ordinary citizens with no choice but to protect themselves as best they can, they now try to take our guns away. In fact they blame us and our guns for crime. This is so wrong that it cannot be an honest mistake.”
– Senator Malcolm Wallop
“Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American… The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”
– Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.
“A system of licensing and registration is the perfect device to deny gun ownership to the bourgeoisie.”
– Vladimir Ilyich Lenin
“Among the many misdeeds of the British rule in India, history will look upon the act of depriving a whole nation of arms, as the blackest.”
– Mahatma Ghandi
“Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”
– William Pitt, British Prime Minister 1783-1801, 1804-1806
“This may be considered as the true palladium of liberty…. The right of self defense is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”
– Saint George Tucker
“If someone has a gun and is trying to kill you … it would be reasonable to shoot back with your own gun.”
– Dalai Lama
(To the best of my knowledge all of the above quotes are accurate.)
Bravo.
Well put
Great job.
Exactly. I was just saying the same thing.
I will never understand this, even this article from a so called pro 2nd Amendment author argues that “Of course the firearms community doesn’t believe that people should have the right to “eventually shoot someone with a gun.” But they also (generally speaking) don’t believe in total, unregulated access to firearms, either.” WHERE IS THAT PART IN THE 2ND AMENDMENT? Why do we continue to hear and see this from so called pro gun people? It seems to me they are giving the anti-2nd Amendment crowd a window to taking more and more 2nd Amendment rights away when the say that. TRUTH BE KNOWN, It used to be after you served your time in prison, and paid your debt to society, you were to get ALL your rights back. Even the right to bear arms. So why isn’t “total and unregulated” access to firearms on Law Abiding citizens okay with “some” to “most” in the pro gun crowds, that clearly our founders intended to fight a UNREGULATED AND TYRANNICAL GOVERNMENT?? I think they have even lost the real intent to what the 2nd Amendment was and is for! How do we fight tyranny when “we the people” are some what “regulated”, but the government which, most to all tyranny comes from, is not? Please explain that too me Mr. Jordan Michaels ?
Although a somewhat radical belief, I believe once your debt to society is paid, you should be “made whole” and have your rights restored. I also believe if you abuse your rights a second time you should never regain them or regain your freedom..
I may have missed it, but one of my favorites is “when the people fear the government, it is tyranny. When the government fears the people, it is liberty” Thank you Thomas Jefferson.
Well done, gentlemen. I too believe we must rebuild the real militia. It would be a real asset for defending our borders and ports from the current invasion, for one thing, and a strong deterrent to the plans of Soros and his ilk for a new world order of disarmed plantation slaves. This is why their media has so viciously attacked any Militia that tries to form. Now that we know their fake media is nothing but totalitarian propaganda, let’s roll
Well covered. This are just a glimpse of the support for private ownership of firearms (individual not crew served). It would appear that the author has not read, nor studied the subject in depth. I have. The words of the authors, James Madison and George Mason remain for us to read even today. Both men appeared before the individual state legislatures to explain the words and intent of the 2nd Amendment. Thereafter, the 2nd was adopted along with the rest of the Constitution, and the states then incorporated the words and intent into their own constitutions (even CA, MA, NY, etc.). It wasn’t about self defense or hunting, for both were considered natural rights and normal activities. It was about tyranny which the Founders had experienced first hand.
On the night of 18 April ’75, the British Commander dispatched troops across Massachusetts with orders to confiscate the firearms and powder held by colonists and to arrest two particular colonists. Warning the colonists on that night were Paul Revere and a couple of others. The following morning the British troops were met at the Old Bridge and shots rang out, resulting in the shot heard ’round the world.
What part of “Shall not be infringed” do we not understand?
I disagree with the author on many points in his article but especially his assertion that the firearms community “don’t believe in total, unregulated access to firearms, either.” In the comments section of this very blog, week in and week out, members of the firearm community oppose the most basic and enduring of firearm regulations like the NFA and GCA. Many are in fact arguing for total, unregulated access to firearms. They argue for open access to machine guns and silencers, the trading of firearms without background checks, modifications like bump stocks and against firearm registration. A&W’s characterization of the firearms community in this respect is very accurate.
I think he meant keeping guns out of the hands of violent criminals.
I agree. If the second amendment was to guarantee for us a means to resist tyranny, how can we be regulated by the ones we should be resisting.
If more citizens were armed there would be fewer tempted to criminal acts, simply because citizens are usually more accurate in their shot placement than law enforcement.
I have a few friends that are in law enforcement I have had come to my range at home! My kids could shoot more accurately than they can, pistol or rifle! Worst shots I’ve ever saw! Kinda scary when you think these folks are supposed to protect you!
Frank, I am glad you are so flippin good on the range. Next time a target is assaulting you or yours you got it made! How do yer friends feel about you belittling them in public? Bet ya don’t have many friends. How about you go through the academy put on a badge and work your way up to weapons training officer so you train shooters. My son did just that, and I would bet he would take ya to school at the range. By the way, can you put three inside a 3 inch bull at 500 yards after running a half mile, stopping every 100 yards to do push ups while in full gear and carrying a rifle. He did. He also builds the sniper rifles and trains shooters in the art for his sheriffs department. And he does this for crap pay as a Sergeant. Show a little respect or shut up. Because a few guys don’t impress you doesn’t mean a thing. There are poor performers in any professional field. I was in the army and I can tell ya for sure we had the same problems with our troops. And believe me, we had some real scum there just like in law enforcement. I find it interesting that when it comes to law enforcement it is fine to chastise a whole part of society and that is not considered discrimination.
Again, seriously you never get it right. That you use the comment section of a Gun newsletter as proof of your point is preposterous.
As is your argument in general.
lol !!! ‘Gun Control’ as number two listed in our Unalienable Bill of Rights… derp, okay democrats, get off the recreational drugs and think straight. lol !!!
This is nonsense. These two are attempting to rewrite history with misinformation and made-up facts. Their “research” has been refuted by Constitutional scholars more adept then me.
Liberals will say or do anything to further their agenda because they believe Americans are stupid and believe what they are told. Say enough times, it becomes truth.
***attempting to rewrite history with misinformation and made-up facts***
This is a typical strategy of socialists.