A dialogue that I believe is pertinent to today is that of the Second Amendment. The purpose of this post is not to voice my opinion; instead, it is to create a meaningful discussion on where the founders would stand in a modern world filled with technological advances and new weaponry. In order to incorporate their position on how the Second Amendment should be applied today, it is essential to understand the historical background of the Second Amendment in the late 1700’s. Firstly, after the fight against tyranny in the revolution, the United States found itself adopting the Articles of Confederation as stated in the class notes. It can be argued that the Articles of Confederation was the result of colonists fearing another monarchy combined with a mixture of inexperience and misinterpreted history, as I will later explain.
In order to understand what the founders would have believed it is necessary to look at the different ways to interpret the constitution. There are two methods: the first is originalism and the second is judicial activism or [non originalist] (law2.umkc.edu). Originalism is a strict interpretation of the constitution and one that takes perspectives into context from the era of the framers; whereas, a non-originalist view is one that the judiciary can use to fill in gaps (law2.umkc.edu). There are arguments that judges should use both. Firstly, nonoriginalists argue that the framers did not intend to have every phrase interpreted strictly; however, originalists argue that there is a certain line of interpretation that puts it into the frame of mind (law2.umkc.edu).
To bring forth the issue of the purpose of the second amendment it is important to look at a current case that so importantly highlights the issues at stake. According to Fish, DC vs. Heller illustrates a perfect example of these two interpretations in play. In this case, Scalia, a strong advocate for orignalism, argues that the framers pushed for guns to be allowed for self defense and that there was no intention of the framers to “limit the use of weaponry for the citizenry (Fish) .”
In connecting this dialogue to the Federalist papers, one needs to look at Federalist Paper specifically at 29; moreover, in line with the assigned reading I did I want to propose a new theory. It is clearly evident that throughout reading the federalist paper that the “federalists” realized that mistakes have been made in history. Likewise, they claim that even experts on certain documents and readings are not always right. Would it then be unwise to claim that the federalist papers are thus the end all know all along with the Constitution. To illustrate, the federalists in Federalist 9 bring up Montesquieu and when they say “When Montesquieu recommends a small extent for republics, the standards he had in view were of dimensions far short of the limits of almost every one of these States”; it is highlighting a disagreement of understanding in history (Federalist 9). Additionally another quote
“The opponents of the plan proposed have, with great assiduity, cited and circulated the observations of Montesquieu on the necessity of a contracted territory for a republican government. But they seem not to have been apprised of the sentiments of that great man expressed in another part of his work, nor to have adverted to the consequences of the principle to which they subscribe with such ready acquiescence.” – This quote from Federalist 9 also highlights the arguments that history brings up.
To conclude, the federalist’s opinion on the second amendment can be taken straight from Federalist 29 and 28. The wording of these two papers can arguably be used to argue for either side. One might say that self-defense and the proponents of not being an active militia highlight the need for the allowance of bearing arms (guncite). On the contrary, one can say that instead this is not what the framers intended and that the sole purpose is for the case of a tyrannical government (dailykos). In either event there are numerous examples which support both. However, this can only be solved in the courts where readings using both originaliist and non originailist techniques will come in to determine how the modern world would take in the second amendment. We also neeed to see other issues such as gun power back then compared to now. Let me know what you guys think.
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.html
http://opinionator.blogs.nytimes.com/2008/07/06/what-did-the-framers-have-in-mind/?_r=1
http://www.guncite.com/gc2ndpur.html
http://www.let.rug.nl/usa/documents/1786-1800/the-federalist-papers/the-federalist-29.php
http://www.dailykos.com/story/2012/01/07/1052523/-The-Second-Amendment-Myth#
What Would the Founders Do? 
Second Amendment & the Federalist Papers
The second amendment protecting citizens “right to bear arms,” was not directly discussed in the Federalists chapters we were assigned to read for this week. However, while not directly addressed, the right to bear arms must have become a culturally understood necessity by the time the Articles of Confederation came under review.
Colonial history consisted of armed conflicts with tribal peoples (King Phillips War) as well as other European countries, such as France, Spain, Holland, etc. British control expanded in North America as a result of conflicts between her subjects and foreign subjects (Queen Anne’s War). Another factor taking place in American colonies was means for acquiring food. While agriculture was predominant, and colonists had access to domestic meat sources (cattle, pigs), other sources of meat were also included in colonists diets (turkey, deer). Nonetheless, what seems consistent throughout the readings was the understood notion that America would not remain restricted to the original thirteen colonies. Expansion of American territories was expressed not only in the Federalist Papers , but also in the Declaration of Independence; “He has endeavored to prevent the population of these States; …raising the conditions of new Appropriations of Lands.”
But the question to raise is why was the right to bear arms contained in the Bill of rights when the Bill of Rights is a safe guard against government intrusion of a citizens’ right to “life, liberty, and the pursuit of happiness” (right to own property). Therefore, this leads me to believe that the “right to bear arms,” was viewed by the founders as a right embedded within the description of “life, liberty, and pursuit of happiness” (property).
Madison addresses concerns regarding the adoption of the Constitution “because it is not a confederation of States, but a government over individuals.” Embedded in this argument of the power of a national government (Republic or Federalism), Madison points out that individual’s, though some may feel a bill of rights should be included into the Constitution, they disagree on its application. For instance, Madison indicates that while
“[a] third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it out to be declaratory, not of the personal rights of indiviudals, but of the rights reserved to the States in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable but for the fatal power of regulating the times and places of elections.”
Much of the readings addressed the concern surrounding the right of States to retain a level of sovereignty at the expense of giving some of its sovereign authority to a national government. In order to do this, as I have come to understand the intension behind the second amendment, it was believed that the citizens of the states would need to retain their authority (rights) to bear arms should the States find the national government exceeding its authority. In Checks and Balances, Madison conveys his thoughts “essential to the preservation of liberty”, stating, “Justice is the end of government.” For ordinary citizens to protect themselves from the human characteristics attached to power, citizens would need to retain the ability to protect themselves from an abusive government. After all, governments are manmade and men are susceptible to the ills of power. The right to bear arms was not, I believe, designed to give citizens the right to kill one another, but instead was an adopted belief that the right to bear arms was a sovereign right afforded to a nation’s citizens, ensured citizens would be able to protect themselves from the abuses of government – our right to revolution as well as a nation’s citizens would provide a front-line protection to an invasion by a foreign government and a recognition of State sovereignty.
John Jay, Alexander Hamilton, and James Madison. Federalist Papers, Philadelphia; PA: Pavilion Press. (2003): p. 58: Madison’s second observation – “immediate object of the federal Constitution is to secure the union of the thirteen primitive States, which we know to be practicable’ and to add to them such other States as may arise in their bosoms, or in their neighborhoods, which we cannot doubt to be equally practicable. The arrangements that meay be necessary for those angles and fractions of our territory which lie on our northwestern frontier, must be left in those whom further discoveries and experience will render more equal to the task.”
The Declaration of Independence: A Transcript, The U.S. National Achieves & Records Administration. (2010): http://www.archieves.gov/. p. 1.
Jay, Hamilton, Madison. Federalist Paper,. Philadelphia; PA: Pavilion Press. (2003): p. 147.
Ibid: p. 202.
Ibid: p. 205.
The Second Amendment states: “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.”
The citizens of this new nation were confident in their status as independent men. The tyranny of their former existence was at an end, the taxation and unfair rulings decreed by a monarchy were at an end and these pioneers were not ready to relinquish their liberties or their defenses. The concept of a centralized government metering out demands was not going to be accepted. If this government was to frame a document of purpose; it would need to assure citizens their hard-won freedom from monarchy would not be endangered. The document would need to assure the citizens their fight was not in vain, and their freedoms would be protected.
The founders writing the Constitution recognized the need to assure the citizens they would retain the necessary methods to defend themselves. If the language implied personal arms be relinquished by the citizenship and dispensed to militia exclusively, the impression would be as if a recreation of the plight of their former existence had been struck. The Constitution would never be ratified if the language was not clear that citizens were going to be able to maintain their independence and their defense.
This attitude of the time is summed in the following quote: “Firearms stand next in importance to the Constitution itself. They are the American people’s liberty teeth and keystone under independence … From the hour the Pilgrims landed, to the present day, events, occurrences, and tendencies prove that to insure peace, security and happiness, the rifle and pistol are equally indispensable . . . The very atmosphere of firearms everywhere restrains evil interference – they deserve a place of honor with all that is good” (George Washington).
The need for a centralized militia was debatable. States were now in charge of their own defense and a centralized government in control of a militia seemed to counter this new found liberty. The pioneers were in control of their land and their state and were not ready to relinquish this attitude of independence. They had fought savages and dictatorships and were ready to enjoy their freedom; not relinquish it to a centralized government’s decree.
As the founders fashioned the Constitution, they were aware of this attitude and supported the previous effort necessary to obtain freedom in several statements found in the Federalist Papers. James Madison states in “Federalist No. 46” passages of support for possession of arms:
“Americans have the right and advantage of being armed – unlike the citizens of other countries whose governments are afraid to trust the people with arms…..It is not certain that with this aid alone [possession of arms], they would not be able to shake off their yokes. But were the people to posses the additional advantages of local governments chosen by themselves, who could collect the national will, and direct the national force; and of officers appointed out of the militia, by these governments and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned, in spite of the legions which surround it”.
Noah Webster’s famous quote regarding this topic states “Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.” The fear of tyranny and the need for states to demonstrate their independence was very strong at this time.
Another example of the spirit of the founders is a quote often heard during the current debates upon gun control; “…to disarm the people – that was the best and most effectual way to enslave them.” (George Mason, 3 Elliot, Debates at 380). The concept is then put forth that the only ones in possession of guns would be the force under control of the central government. And the concern for a dictatorship once again arises.
To address the pro and con statement “To conclude, the federalist’s opinion on the second amendment can be taken straight from Federalist 29 and 28. The wording of these two papers can arguably be used to argue for either side. One might say that self-defense and the proponents of not being an active militia highlight the need for the allowance of bearing arms (guncite). On the contrary, one can say that instead this is not what the framers intended and that the sole purpose is for the case of a tyrannical government (dailykos)” we would like to utilize the statements made by
Stanford Progressive, Stanford University noted in their article “Mason, Madison, and Militias: A Progressive for a Right to Bear Arms” by Ross Raffin, published May, 2010 “The drafters were well aware of how governments have always used game laws (gun control laws) as a means to disarm the public. Allowing the government to pass gun control laws is the same as giving the keys to the henhouse to the fox. It is why the Second Amendment has “Shall not be infringed”. I’m afraid to tell you, but every type of weapon that is issued to a soldier in our military today is the birth right of an American, including bazooka’s.”
The current discussion of the meaning of the Second Amendment has centered upon its “need to survive” perception, that the need for guns in 1788 was to provide for the family table. “I, like most Americans, believe that the Second Amendment guarantees an individual the right to bear arms. And we recognize the traditions of gun ownership that passed on from generation to generation -– that hunting and shooting are part of a cherished national heritage.” – Obama 7/25/12.
In the quotes and passages I have reviewed I do not find this use or concept pursued. The meaning of the second amendment has been demonstrated as a means of fighting tyranny or an “overbearing” government. Vice President Hubert H. Humphrey states “The right of the citizens to bear arms is just one more guarantee against arbitrary government, one more safeguard against the tyranny which now appears remote in America, but which historically has proved to be always possible.” This has been the substance and general meaning demonstrated throughout my examination of the topic.
The debate and discussion surrounding gun control continues to both enrage and frighten the public. It is the spirit in which a gun is handled that is at question. If guns are owned, a responsibility to preserve and protect is implied. If a gun is not used properly and laws are broken, the offender should be held accountable. Not the entire gun-owning citizenry. If a gun control law were to be passed, there is strong concern that it would be enforced on the law-abiding and not the faction deserving of the law’s effects. And this would then become a flagrant infringement of freedom and the beginning of a serious unrest within our citizenry.