Re: The 2ed Amendment as a Gun Nuts Wet Dream

Bert Hyman wrote:
> 
> [EMAIL PROTECTED] (Steve Krulick) wrote in
> news:[EMAIL PROTECTED]:
> 
> > "THE PEOPLE" was a term of art that ONLY meant the enfranchised
> > body politic in its collective and political capacity; it did
> > NOT mean each and every person as an individual.
> 
> So, when the 1st Amendment says " ... or the right of the people
> peaceably to assemble, and to petition the Government for a redress
> of grievances", or the 4th says "The right of the people to be secure
> in their persons, houses, papers, and effects, against unreasonable
> searches and seizures, shall not be violated..." they're not talking
> about real people, but some imaginary hive-being that you've
> invented?

No, strawslinger. There is no "imaginary hive-being" I've
"invented"! THE PEOPLE was defined precisely as it was used in
the Const by the Bouvier Law Dictionary, THE authoritative
sourcebook for how the terms were used IN the Const. YOU have
not refuted it, nor offered a comparable alternative, only made
silly straw hand waves.

And it's NOT "real people" but "real persons" you mean to say.
But as you are illiterate, I'm not surprised, nor why you make
the same silly comments over and over.

I've answered this one many dozens of times, but you were
probably sleeping. I explained how the term ONLY related to
individual FREEMEN IF the right described WAS distributive in
nature. The rights in the 1st and 4th Amen ARE of that nature,
and so the members of the PEOPLE CLASS, or FREEMEN who comprise
the class, may invoke those distributive rights.

So I'll just repeat the same answer I've given over and over,
and maybe, just maybe, you'll actually READ it this time.

The LEGAL concept of THE PEOPLE is not numerical or even
geographical, but conceptual and political, and THAT definition
is: "the body of enfranchised citizens of the state." IT is a
SINGULAR, collective entity.

Citizens, or "individuals," included women, children and other
non-enfranchised persons; THE PEOPLE was ALWAYS the enfranchised
body-politic in its corporate, collective sense!

(BTW, it seems, according to the Bouvier Law Dictionary,
"citizen" only originally and primarily referred to the
enfranchised white male of age, which is ONLY the same class
that is called... THE PEOPLE, and from which the militia is
drawn as "the BODY of the PEOPLE"! Only in a wider and secondary
use did "citizen" include the non-enfranchised WHITES; blacks
before the War of the Rebellion did NOT have the title
"citizen"!)

The PEOPLE is not numerical, it is conceptual; IT is a singular
entity, like a corporation, which also is made up of
individuals, yet it has perpetual existence and powers
independent and beyond the individuals comprising it.

Some rights are of individuals, and some are of the THE WHOLE
PEOPLE, just as Gallatin said:

"The whole of the Bill [of Rights] is a declaration of the right
of the people at large or considered as individuals... It
establishes some rights of the individual as unalienable and
which consequently, no majority has a right to deprive them of."
- Albert Gallatin of the New York Historical Society, October 7,
1789

"The whole of the Bill [of Rights] is a declaration of the right
of the people at large OR considered as individuals...

And the 2nd Amen is a perfect example of a right of the people
at large!

"The people," as the "people at large," the "whole body of the
people," the collective "body politic," have the populus armatus
jus militiae right to be involved in the state's (or nation's)
military function, by establishing, arming, controlling,
maintaining the upkeep and readiness of the militia ("keep arms"
as Adams meant it), and serving ("bear arms" as Madison meant
it, if qualified) as citizen-soldiers (as opposed to "regular"
professional soldiers in a standing army), drawn from the "body
of the people," and "trained to arms" and "enrolled" into an
organized, "well regulated" state militia.

"It establishes some rights of the individual as unalienable and
which consequently, no majority has a right to deprive them of."

But the "right" to "own and carry guns" was never one of them.
(See Pennsylvania Test Acts) 

THE PEOPLE is NOT each and every PERSON "considered as
individuals"! It is the collective enfranchised body politic as
its own corporate identity.

Some rights are individual and apply to ALL individuals or to
particular classes of individuals when applicable. Other rights
are OF the collective entity itself, INDIVISIBLE, and not based
on numbers:

Rights are collective AND individual; collective in their
formulation, individual OR collective in their exercise and
application. It's a floor wax AND a dessert topping!

But unless your name is engraved in the Const, you have the
rights that accrue to you as a member of the class that IS
engraved therein. Does the 6th Amen say "Joe Doe shall enjoy the
right to a speedy and public trial &c"? Of course not! But if
you are arrested, as one who qualifies as a member of the class
of persons called "accused," you have the rights. Can you
appreciate the subtle difference? Your 3rd Amen rights likewise
depend on your being a homeowner. Not ALL homeowners, not a
collective group of homeowners, but ONE OF A CLASS defined as
"persons who own a home." GET IT?

The 3rd Amen talks about the consent of "the owner" (singular),
not "the people" (plural). The 5th Amen says "no person"
(singular), not "no people" (plural). The 1st Amen talks of the
right of "the people" to assemble (obviously plural; how can a
single individual "assemble"?). The 6th Amen refers to "the
accused," "him," and "his" (singular). The 8th Amen avoids the
problem altogether. If they wanted to, the authors COULD have
written "the right of persons to..." to clearly refer to
individuals, or else written "the right to keep and bear arms,
shall not be infringed" to be as vague as the 8th. Well, they
didn't write "persons" when they could have, so there's no
reason to see an individual right. As the courts have affirmed.

In 1792, when the Militia Act was passed, WHO had the specific
right to "bear arms" ("to render military service in person" as
Madison defined it)? Did blacks have the right? Women?
15-year-olds? Non-property owners? Cripples? Feeble-minded?
Prisoners? "Injuns"? "Furreners"? Indeed, the MAJORITY of people
in the country did NOT have the right to "bear arms" in the
militia, hence they had no militia "right" to "bear arms."
Indeed, laws were passed PREVENTING some, such as blacks, from
even possessing guns, "carrying guns" being a separate action
from "bearing arms."

BUT the PEOPLE AT LARGE, the enfranchised body politic (who
WERE, for the most part, the SAME free, white, property-owning
males who could vote, serve on juries AND made up the militia)
ALWAYS had the collective right to "keep and bear arms," a term
of art first used in the 1780 Mass Const by John Adams, that
referred to the democratic organization, control, arming, and
preservation of the well-regulated state militias by the PEOPLE
AT LARGE, the WHOLE PEOPLE as the populus armatus, exercising
their jus militiae right to participate in the state's and
nation's military function, and, if qualified, to serve in
person as a citizen-soldier, as conscript duty if required, to
forestall the need to rely on a standing army, the "bane of
liberty"! The PEOPLE "keep" (keep permanently ready and maintain
in public stores, as Adams and the Articles of Confederation
meant it) and "bear" ("bear arms" meant to Madison in the 2nd
Amen draft "to render military service") in their collective
capacity. For example, a 70-year-old crippled white male could
VOTE for state reps who organized and controlled the militia;
though unable to "bear arms" in the militia personally, he COULD
participate IN the collective function, exercising HIS PART of
that collective right! A 30-year-old white women in 1792 could
do NEITHER!

The 1st Amen freedom of religion applies to EVERYONE, the 3rd
Amen to homeowners (it isn't relevant to anyone else), the 6th
Amen to those accused of a crime... NOT the same classes of
persons, with decreasing levels of inclusion. The "People" of
the 2nd Amen are ONLY those who qualified to vote or (for the
most part) serve in the militia, which WAS NOT everyone by a
long shot. Did blacks, women, 15-year-olds, non-property owners,
have 1st Amen rights? Did those same persons have the right to
serve in the militia, and thereby "bear arms," or vote
democratically (the Const also says "the People" choose the
Congress every two years; did everyone vote? NO? That's why the
People is ONLY the enfranchised body politic!) to participate in
the organization and control of the militia ("keep and bear
arms")?

Were THOSE PERSONS not individuals? Weren't many even citizens?
But they WERE NOT a part of THE PEOPLE!

Laws are written in the collective and general class sense, but
applied in specific individual and class instances IF you are in
the applicable class. IF you are in the class known as
"homeowner" you have individual 3rd Amen rights; IF you are in
the class known as "accused" you have individual 6th Amen
rights. 

IF you are a member of the CLASS known as the PEOPLE, i.e., the
enfranchised body politic, YOUR 4th Amen right to be secure in
YOUR person and property is protected. THAT'S why it says THE
PEOPLE. 

Which is composed of Freemen, as they belong to the class known
as the People; as Madison's ORIGINAL phrasing of this Amen
indicated "The rights of the people to be secured in THEIR
[emph. added] persons, THEIR homes, THEIR papers, and THEIR
other property from all unreasonable searches and seizures..."
protects the CLASS, so when a member of that class is abused of
these rights, as formulated FOR the CLASS, he, as a member OF
the CLASS, can invoke the rights under the Const for INDIVIDUAL
APPLICATION.

Is that so hard to understand? Hell, even Rehnquist, in
Verdugo, suggested that foreigners, as NON-members of the CLASS
known as The People, did NOT have 4th Amen rights that belonged
TO the CLASS known as The People!

The rights are different rights in each Amen. The People is the
same The People. But some of the RIGHTS apply ONLY to the People
in their collective capacity as the enfranchised body politic
(the whole People), others to certain members of that class
taken collectively (e.g. the militia drawn from "the body of the
People), others to a specific sub-class of The People (The
People of the State), others to the Freemen who comprise The
People, taken collectively or as an individual Freeman. I drew
the distinctions for the different "the People" amendments in
the previous posts.



Second Thoughts: What the right to bear arms really means. 
by Akhil Reed Amar 
http://www.constitution.org/2ll/2ndschol/103wha.htm

"The amendment speaks of a right of "the people" collectively
rather than a right of "persons" individually. 

And it uses a distinctly military phrase: "bear arms." A deer
hunter or target shooter carries a gun but does not, strictly
speaking, bear arms. The military connotation was even more
obvious in an earlier draft of the amendment, which contained
additional language that "no one religiously scrupulous of
bearing arms shall be compelled to render military service in
person." Even in the final version, note how the military phrase
"bear arms" is sandwiched between a clause that talks about the
"militia" and a clause (the Third Amendment) that regulates the
quartering of "soldiers" in times of "war" and "peace."
Likewise, state constitutions in place in 1789 consistently used
the phrase "bear arms" in military contexts and no other. 

... anachronistically, libertarians read "the people" to mean
atomized private persons, each hunting in his own private Idaho,
rather than the citizenry acting collectively. 

But, when the Constitution speaks of "the people" rather than
"persons," the collective connotation is primary. 

"We the People" in the preamble do ordain and establish the
Constitution as public citizens meeting together in conventions
and acting in concert, not as private individuals pursuing our
respective hobbies. The only other reference to "the people" in
the Philadelphia Constitution of 1787 appears a sentence away
from the preamble, and here, too, the meaning is public and
political, not private and individualistic. Every two years,
"the people" -- that is, the voters -- elect the House. 

To see the key distinction another way, recall that women in
1787 had the rights of "persons" (such as freedom to worship and
protections of privacy in their homes) but did not directly
participate in the acts of "the people" -- they did not vote in
constitutional conventions or for Congress, nor were they part
of the militia/people at the heart of the Second Amendment. 

The rest of the Bill of Rights confirms this communitarian
reading. The core of the First Amendment's assembly clause,
which textually abuts the Second Amendment, is the right of "the
people" -- in essence, voters -- to "assemble" in constitutional
conventions and other political conclaves. So, too, the core
rights retained and reserved to "the people" in the Ninth and
Tenth Amendments were rights of the people collectively to
govern themselves democratically.

"The Fourth Amendment is trickier: "The right of the people to
be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures, shall not be violated."

Here, the collective "people" wording is paired with more
individualistic language of "persons." And these words obviously
focus on the private domain, protecting individuals in their
private homes more than in the public square. Why, then, did the
Fourth use the words "the people" at all? Probably to highlight
the role that jurors -- acting collectively and representing the
electorate -- would play in deciding which searches were
reasonable and how much to punish government officials who
searched or seized improperly. An early draft of James Madison's
amendment protecting jury rights helps make this linkage obvious
and also resonates with the language of the Second Amendment:
"[T]he trial by jury, as one of the best securities to the
rights of the people, ought to remain inviolate." Note the
obvious echoes here -- "security" (Second Amendment), "secure"
(Fourth Amendment), and "securities" (draft amendment); "shall
not be infringed," "shall not be violated," and "ought to remain
inviolate"; and, of course, "the right of the people" in all
three places. 

If we want an image of the people's militia at the Founding, we
should think first of the militia's cousin, the jury. Like the
militia, the jury was a local body countering imperial
power -- summoned by the government but standing outside it,
representing the people, collectively. Like jury service,
militia participation was both a right and a duty of qualified
voters who were regularly summoned to discharge their public
obligations. Like the jury, the militia was composed of amateurs
arrayed against, and designed to check, permanent and
professional government officials (judges and prosecutors, in
the case of the jury; a standing army in the case of the
militia). Like the jury, the militia embodied collective
political action rather than private pursuits. 

Founding history confirms this. The Framers envisioned Minutemen
bearing guns, not Daniel Boone gunning bears. When we turn to
state constitutions, we consistently find arms-bearing and
militia clauses intertwined with rules governing standing
armies, troop-quartering, martial law, and civilian supremacy.
Libertarians cannot explain this clear pattern that has
everything to do with the military and nothing to do with
hunting."



Amar's overall 4th Amen explanation makes tentative sense, but
I'm not totally convinced by it, as I've said, and my latest
hypothesis would suggest a more limited right than is normally
thought, but, hey, that is the same situation with the 1st and
2nd Amens too, isn't it? 

Here's something based on what I posted in 2001, before I read
Amar's piece:

"It would be awkward to have said 'right of persons to be secure
in their persons, etc.'

Look at Madison's ORIGINAL phrasing of this:

"The rights of the people to be secured in THEIR [emph. added]
persons, THEIR homes, THEIR papers, and THEIR other property
from all unreasonable searches and seizures..." 

Why in the plural, even collective, sense at all?

This could have been rewritten to emphasize the individual
nature of the right, for example, the NY proposal (and likewise
the VA proposal) said:

"That every Freeman has a right to be secure from all
unreasonable searches and seizures of his person his papers or
his property..."

but it was merely shortened and tightened by Congress. There was
almost no House debate over this amendment other than a few
minor insertions, as it was late August and they were trying to
wrap up. Perhaps they were not as fastidious as Adams was in
the Mass Const for maintaining consistency of usage.

No question, this, at first, seems to us to be an INDIVIDUAL
right, but the phrasing should have been more consistent to
reflect that if it were.

Of all the amendments, THIS one varies MOST from the
recommendations of the state proposals in this regard, and
strays most from otherwise consistent usage of plural "the
people" and individual "person" or cognates (including the 1st
AND 2nd Amens, to be addressed separately). 

Unless there is collective sense I'm missing."


Since then, I've read Amar's piece, and I find it less than
wholly satisfying re the 4th, but I see his point; in any case,
there is more reason to accept ONE amen, the 4th, as being able
to be seen as involving the collective people, in some
philosophical and abstract way that isn't readily apparent, and
as *I* have now further suggested, than to see at least THREE
amens, plus OTHER uses in the Const, as involving individuals
when it is so clear that the collective sense IS meant, based on
ALL the other clues and contexts.

Even the 1st Amen reference to THE People, which some harp on,
WAS originally written to refer ONLY to THE People in their
collective role! In one of the longest and most divided ongoing
House debates in 1789, the original phrase in what was to become
the 1st Amen was the flashpoint for what divided those who
sought more democratic input from those who wanted the
representatives to be more independent. The original words read:

"The people shall not be restrained from peaceably assembling
and consulting for their common good; nor from applying to the
legislature by petitions, or remonstrances for redress of their
grievances." (Madison, June 1789)

Rep. Tucker wanted to add after "consulting for their common
good," "to instruct their representative." THIS was the nature
of the PEOPLE assembling that the Congress had in mind.

When the Mass Const is referenced against this, which Madison
surely had access to, there is less doubt that the intention was
for collective consistency; however, unlike in Mass, the US
Const was picked apart and reassembled by many authors, and the
end result may have lacked the unifying hand of one single
author or editor, as Mass did with Adams.

So, the enfranchised persons who made up THE PEOPLE, and who
COULD serve in juries/militias/legislatures/conventions, rather
than EACH "person" per se (which included women, children, and
other "second class citizens") were those Madison was primarily
concerned with protecting, since THEY were the only persons
whose right and expectation to be free from govt snooping
affected their ability to act freely and independently in the
public arena (juries/legislatures/conventions) free from fear or
intimidation. And this even comports with the NY and VA
proposals that said:

"That every FREEMAN has a right to be secure from all
unreasonable searches and seizures of his person his papers or
his property..."

Why did this say FREEMAN (sometimes FREEHOLDER) rather than just
person/citizen/individual? FREEMAN is the ONLY singular term
that leaves out ALL the citizens/persons/individuals who are NOT
those included in the enfranchised (AND propertied!) class known
as THE PEOPLE, and so referred to in every other instance!

Perhaps Madison and the Congress WERE JUST AS consistent as
Adams was in the MA Const of 1780 in using that term, even if we
didn't notice it at first!

IF this is so, than Amar, himself, is wrong to focus on the
right of privacy as being for ANY person who was not otherwise
part of the ENFRANCHISED PEOPLE! (This NOW includes blacks and
women, of course, but not, for example, kids, which would allow
school locker searches as clearly NOT being a 4th Amen
violation.) 

Doesn't it make more sense that the same guys who OK'd slavery
and that women couldn't vote were not so concerned about those
same "second-class citizens" not having various "security"
rights as well? What rights and powers did blacks, kids, and
women have that were to be "retained" by them in Amens 9 and 10?
Which of these persons were going to "consult" or "petition the
legislature" when they couldn't vote or serve? Which of these
persons were going to serve on juries or in the militia, or vote
on the maintenance of the militia, and who needed to be "secure
in their persons... papers... property" to prevent intimidation
when serving in office, on juries, or as voters? Which of these
persons voted each two years on the House races? NONE, and so,
THEY weren't PART OF THE PEOPLE the Const speaks of in EACH
case!

"Individuals" included women, children, and other
non-enfranchised persons; THE PEOPLE was ALWAYS the enfranchised
body-politic in its corporate, collective sense! The PEOPLE is
not numerical, it is conceptual; IT is a singular entity, like a
corporation, which also is made up of individuals, yet it has
perpetual existence and powers independent and beyond the
individuals comprising it. As a single stockholder in AOL, could
*I* buy up the whole Time-Warner Company? NO, only the corporate
entity can do that, whether *I* agree or not.

Checks to the Boys Scouts of America can be tax-deductible, but
NOT checks made out to an individual boy scout; Congress can
declare war, but not an individual congresscritter; a jury has
the right to send someone to prison, but not an individual jury
member; THE PEOPLE can democratically decide how to organize and
control the militia's upkeep and readiness ("keep arms" as Adams
meant it), and who gets to serve in it ("bear arms" as Madison
meant it), but there are NO one-man militias and each or any
single militiaman doesn't get to unilaterally set policy or
order himself into battle. 

THE PEOPLE have the right to alter or abolish their govt... but
ONLY when they are acting as THE WHOLE PEOPLE, THE PEOPLE AT
LARGE, THE BODY POLITIC; individuals don't have that right, and
are correctly treated as rebels and insurrectionists when they
do.

Mr. Madison: "The honorable gentleman from Massachusetts
(Gerry), asks if the sovereignty is not with the people at
large; does he infer that the people can, in detached bodies,
contravene an act established by the whole people? My idea of
the sovereignty of the people is, that the people can change the
constitution if they please, but while the constitution exists,
they must conform themselves to its dictates. But I do not
believe that the inhabitants of any district can speak the voice
of the people, so far from it, their ideas may contradict the
sense of the whole people..."

Notice that Madison is using PEOPLE to refer to several levels
of collective "wholeness," from the "whole people," also the
"people at large," to "people... in detached bodies," to the
"inhabitants of any district." And note too, that "the
inhabitants of any district" which is a certain number of
individuals fewer than "the whole people" are not considered to
be able to "speak the voice of the people," and that even a
goodly number of individuals DO NOT equal or make up "the whole
people." Clearly, "the whole people," "the people at large,"
"the voice of the people," is NOT the same thing as EVEN plural
individuals, much less ANY particular individual!

Does "people" always mean the same thing, as some contend?
HERE, in ONE paragraph, ONE MAN, the MAN WHO WROTE THE BOR, uses
people in multiple senses: "people... in detached bodies" is
NOT "THE whole people." Can "people" (persons) as a bunch of
individuals "change the constitution"? NO, only "The whole
people" in their collective political capacity can do that.
There are things that ONLY THE PEOPLE as a whole can do, such as
"bear arms" against another nation, that each and every
individual can't do on his own.

That is why THE PEOPLE, collectively, can, and have the "right"
to, "keep and bear arms" since there ARE no one-man militias or
one-man declarations of war!

When it says THE PEOPLE, it MEANS THE PEOPLE, the enfranchised
body politic, taken collectively, just as Heyman says Adams
meant in the Mass Const:

http://www.saf.org/LawReviews/HeymanChicago.htm

How was the right to arms understood in post-Revolutionary
America? We can attain great insight on this point by exploring
the Massachusetts Constitution of 1780.[145] This document,
which was drafted by John Adams, contains the most carefully
written of all the state declarations of rights and constitutes
one of the best statements "of the fundamental rights of
Americans at the end of the Revolutionary period." [146] [Page
261]

In its preamble, the Massachusetts Constitution sets forth the
relationship between society and its members. The "people" or
"the body-politic" are "formed by a voluntary association of
individuals," who come together through "a social compact." What
is most remarkable is that, having distinguished between the
"people" and "the individuals who compose it," the document then
uses these terms in a consistent way throughout. This makes it
possible to discern with great clarity how the various rights
were understood, and whether they were viewed in individual or
collective terms...

In this way, the Massachusetts declaration draws a clear and
uniform distinction between the rights that belong to
individuals and those that belong to the people as a whole. This
distinction is followed so carefully that it is observed even
when both sorts of rights are implicated. Thus, Article XXIX
declares that the independence of the judiciary is essential
"for the security of the rights of the people, and of every
citizen."

Article XVII of the Massachusetts declaration reads as follows:

The people have a right to keep and to bear arms for the common
defence. And as, in time of peace, armies are dangerous to
liberty, they ought not to be maintained without the consent of
the legislature; and the military shall always be held in an
exact subordination to the civil authority and shall be governed
by it.

In view of the declaration's careful usage, there can be no
question that the "right to keep and bear arms" that it
recognizes is one that belongs not to private individuals but to
the people in their collective capacity. This is made even more
clear by the fact that the right is to bear arms "for the common
defence," as well as by the overall concern of the provision: to
control the military force of the community and guard against
the danger of military tyranny. [148]

I have chosen to focus on the Massachusetts Constitution because
of the precision of its language, which strongly illuminates the
nature of the rights that it contains. Yet the same distinction
[Page 263] between "individuals" (or cognate terms) and "the
people" is also generally, although not invariably, observed in
the other post-Revolutionary state declarations of rights. When
these documents recognize a right to bear arms, they always
describe it as a right of "the people," rather than of every
"individual" or "man." [149] This is strong evidence that the
right was understood in collective terms."



The "People" with the Jus Militiae right to "keep and bear arms"
(which means BOTH to maintain the upkeep OF, AND to serve IN,
the militia) was the enfranchised body politic, essentially the
same free white males who could vote, and serve in office,
juries, and the militia, the able-bodied of those who qualified
for the militia being OBLIGATED to do so as a DUTY; Congress
could not infringe on that right by making it moot by FAILING to
fulfill their constitutional duty to ARM, ORGANIZE, and
DISCIPLINE the Militia, which is what Mason and the anti-feds
were concerned about, and WHY the 2nd Amen was written and
passed.

Those individuals who qualified for "bearing arms" (serving)
within a well-regulated militia could not be deprived of owning
and storing at home THOSE weapons in service to the militia,
such weapons being inspected and "enrolled" (registered) each
year during the call up for drilling and taking a "return of
militia" to maintain a record of the inventory of men and
weapons the state had at its disposal (Militia Act of 1792).

Some rights, as that of "THE People" to keep and bear arms, are
of "the people at large," the collective jus militiae right of
"the people at large" as the "populus armatus" to be involved in
the state's (or nation's) military function, by establishing,
arming, controlling, maintaining the upkeep and readiness of the
militia, ("keeping arms" as John Adams meant it) and serving (if
qualified) as citizen-soldiers (as opposed to "regular"
professional soldiers in a standing army) drawn from "the body
of the people," and "trained to arms"  and "enrolled" into an
organized, "well-regulated" state militia ("bearing arms" as
Madison meant it). (The INDIVIDUAL right Madison wanted was the
conscientious objector right that the House OK'd but the Senate
removed.)

The right "to keep and bear arms" was in the context of the
citizen soldier of the conscript militia. In the 18th century 
private arms were never strictly private. The public had
a claim for public purposes. Which is why the Militia Act of
1792 directed each qualified man to enroll (i.e. register)
himself AND his MILITIA WEAPONS and ACCESSORIES each year at
muster, or be fined for failure to, and such inventory of ALL
the men and arms was reported to the state's gov and the US
prez, so that THEY would know on what resources they could call
on in case of need, including private arms!

OF COURSE "THE People" have the right "to keep and bear arms"
since THAT is what the 2nd Amen SAYS. It's just that "THE
People" doesn't mean EVERYONE, taken as discreet individuals,
but rather the enfranchised body politic,  collectively as the
"populus armatus," and "keep and bear arms" doesn't mean "own
and carry guns"!

And the RIGHT is the "JUS MILITIAE right" of THE PEOPLE,
collectively, as the enfranchised body politic, as the "populus
armatus," as "THE WHOLE PEOPLE," to participate in their state's
or nation's military function, by establishing, arming,
controlling, and maintaining the "upkeep and readiness" of the
militia, and serving (if qualified) as citizen-soldiers (as
opposed to "regular" professional soldiers in a standing army)
drawn from "the body of the people," and "trained to arms" and
"enrolled" into an organized, "well-regulated" state militia, as
opposed to leaving it only to professional soldiers to serve as
hired retainers of the sovereign in a military run solely BY
that sovereign. 

Of course, historically and legally, this "right" preceded the
Constitution, since state militias pre-dated the Revolutionary
War! What Mason and Henry wanted was to make sure that the
pre-existing right of the states to keep and maintain their
militias was not infringed by the new federal government, and
thus the right of those qualified to serve in the militia was
not made moot by their failure to be properly and sufficiently
armed by Congress.


"Gun advocates claim that the "right of the people" to keep and
bear arms is distributive, the right of every individual taken
singly.  But the militia as "the people" was always the populus
armatus, in the corporate sense (one cannot be a one-person
militia; one must be formed into groups). Thus Trenchard calls
the militia "the people" even though as we have seen, the groups
he thought of were far from universal. The militia literature
often refers to "the great body of the people" as forming the
militia, and body (corpus) is a necessarily corporate term. The
great body means "the larger portion or sector of" (OED,
"great," 8:c). This usage came from concepts like "sovereignty
is in the people." This does not mean that every individual is
his or her own sovereign. When the American people revolted
against England, there were loyalists, hold-outs, pacifists who
did not join the revolution. Yet Americans claimed that the
"whole people" rose, as Madison wrote in the Federalist, since
the connection with body makes "whole" retain its original, its
etymological sense— wholesome, hale, sound (sanus). The whole
people is the corpus sanum, what Madison calls "the people at
large." Thus "the people" form militias though not every
individual is included in them." (Historian Garry Wills)


"The WHOLE People" was the entire enfranchised body politic,
same as "the People at large" or just "THE People"; "the BODY of
the People" was that same basic class, minus those over 45 years
old, not able-bodied, or otherwise exempt from personal militia
service.

THE PEOPLE have the right to keep and bear arms. This refers to
SEVERAL rights.

THE COLLECTIVE or COMMUNITARIAN right is that the EBP can
democratically organize, control, arm and maintain the readiness
and upkeep of the state's militia or military function; this
right is NOT fully distributive (does any one individual "keep"
all the inventory of the WHOLE militia, or can any one
militiaman decide unilaterally to "bear arms" against the
neighboring state?).

THE INDIVIDUAL RIGHT (other than the conscientious objector
right Madison sought) is that EACH qualified MEMBER of the
PEOPLE CLASS who is drawn from the "body of the PEOPLE" and thus
is IN the militia, may serve in the militia and may keep HIS
personal militia weapons at home, if desired. Also, an
individual member of the PEOPLE class, whether in the militia or
not, may participate in the COLLECTIVE right to the extent that
he may VOTE on his civilian state reps who control the militia,
and some of his officers who run the militia, or otherwise get
more directly involved in the operation of the militia on an
administrative level. 

There's also the RIGHT of the militias to survive and be
preserved, and the right of the states to maintain those state
militias, and use them for state purposes, and appoint the
officers and administer the discipline.

THAT'S IT!
 
> --
> Bert Hyman | St. Paul, MN | [EMAIL PROTECTED]

Why don't you come back when you have something new,
interesting, or valuable to contribute?

-- 
Steven Krulick / [EMAIL PROTECTED]
Ellenville NY 12428-130727