Correcting the Constitution Record - First in a Series

The Real Second Amendment
and Militia Related Information

From the ratification of the Constitution to two centuries of publications, proof of the manipulation of the as ratified Amendment to the Constitution,
with the intent to change what was ratified to what was, to the government, subject to various and questionable interpretations.

Gary Hunt                                                        [Note" pdf of this article at http://www.outpost-of-freedom.com/documents/Real_Second_Amendment-Hunt.pdf ]
Outpost of Freedom
October 21, 2018

 

Preface

While doing research on another subject, reviewing the Bill of Rights and other early amendments, a rather striking irregularity kept appearing.  That anomaly was the punctuation in the Second (Militia) Amendment.

This led to a change of priorities in the research, thinking that the significance between what kept occurring, then, versus what we see, now, might be worth a very thorough review of what was correct (ratified) and what the intention of the Framers was.

When such a project is laid before me, it is often years of research and hundreds of hours, as this is more a pastime than a vocation.  It is my contribution to my country and my posterity.

The research, performed partially by me and my team and from the records of a friend, Brian March, whose hobby and pastime has been the collection of historical works.  Together, we have reviewed documentation from 1787 to 2006, amounting to 490 books, records, and documents.  Some were not conclusive, though 490 are conclusive and are accounted for in this treatise and identified thoroughly in Part 2 of this article.  It is my fervent hope that this work will result in a correction of the record of what has been passed off as the Second Amendment for the past century.  And, that that record be replaced with the intention of the Framers and those who ratified that amendment.  That it be properly understood for what was provided for, "extending the ground of public confidence in the government"

Forward

“It is hard to be right when the Government is Wrong.” and “Question Every Thing.”

Hi, my name is Brian March.  Every since 1991 (off and on as my money, career and several disabilities would allow), my eyes were opened to the some truths.

In 1991, I read an Article, about David Dodge and Tom Dunn's (both have very sadly passed away) research, which was an amendment to the Constitution of the United States of America properly proposed by Congress and ratified by the requisite number of States.  Then it took the “Powers that be”, about seven decades to make it disappear.  I knew if what the Article professed (I did not agree with all the possibilities), and re-recognized and enforced this would be the key to unlock the actual Republic of the USA.

So I tracked David and Tom down and from 1991 – 1996, we did as much research as my above parameters would allow.  We went to many Universities and several reoccurring visits to State and Federal Archives as well as the Library of Congress, anywhere we could gather evidence to prove what was real in 1819, is real today.

Unfortunately, my money ran out and my other issues stopped me from researching.  But way before all was gone, I had discovered another Amendment that was unlawfully changed.  As David, Tom, and I stopped researching their discovery, other people picked up and ran with it.  My research was turned into a hobby (beginning of 1997).  I would, every once in a while, call the people that were then researching David and Tom’s Amendment.  After several years I realized that I would not be able to do much more so I gave up most of the documented copies and Books, from what David, Tom and I had found, to a person I believed I could trust with same.  Unfortunately those are now lost.

The 2nd Amendment items that I had found I kept.  I have continued to collect old records, as a hobby and pastime.  A little here and a little there I would keep on finding items on this Amendment, which was confirming my theory.  At the same time, I had found other people's work on other Amendments.

In 1995, Gary Hunt and I collaborated on an early article on the Titles of Nobility Amendment to the Constitution.  So, I talked to Gary, about three years ago on exposing some facts about the ratification of the 2nd Amendment.  Gary said yes and for his organizational, computer, and writing skills, and Gary having the Patience of Job, with me and my disabilities.  This and exposing facts about the ratification of other Amendments are going to come.  However, without Gary Hunt they would have no chance of this being accomplished.  

 

Acknowledgement

The Library of Congress, the NARA (National Archives and Records Administration), University of Indiana, various sources within South Carolina, North Carolina, Alabama, Archives of Delaware, Legislative Archives of Kentucky, Archives of Maryland, Archives of Pennsylvania, Archives of New Hampshire, Archives of New Jersey, Archives of Massachusetts, Archives of Connecticut, Archives of Vermont, Archives of Ohio, Archives of Virginia, Archives and Library of Georgia.  Also, various on line resources, especially Google Books, from which hundreds of historical publications can be found.

Special thanks to the members of the Team (names withheld) that has been a source of many hours of input, review, proofreading, and other assistance, in the preparation of this article, and many before it.


 

 

A basic historical and grammatical analysis of the Second Amendment

This is the full, erroneous, text of the Second Amendment

second-amendment

Complete Second Amendment text, as ratified. 
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.
 Pay particular attention to punctuation and capitalization.

It’s short and sweet–done so, ironically, to avoid confusion.  However, it could be argued that the confusion is only an emotional one.

The Second Amendment is a compound sentence with an independent clause preceded by two modifying dependent clauses.

The Supreme Court interprets “A well-regulated militia.” as implying the imposition of proper discipline and training.”  IMPOSED proper discipline and training.  People that argue the second amendment protects gun ownership usually ignore this fundamental point.

Paraphrased, the second amendment modifies the keeping of arms with regulation through compelled discipline and training.

The second clause, “being necessary to the security of a free state,” modifies the first and main parts.  Why do we need a well-regulated militia?  It is needed "To protect the security and freedom of the state."

It is this simple.  Well regulated gun ownership the security of the free states is the only function for which well-regulated gun is guaranteed.

To paraphrase, the first two, modifying clauses establish that a well-regulated and trained militia that is necessary for the security and freedom of the states.

The final part, the right of the people to keep and bear arms shall not be infringed”, is equally clear, but maybe not at first glance.  It establishes the right of “the people.”  This is tied to something called the “body politic.”  It’s a phrase you might have heard from some bloviated gas-bag posting in a highfalutin’ journal… ahem… and have a decent sense of what it means, yet never really checked.  I used to think it meant the body of politics.

It actually means, “the people of a nation, state, or society considered collectively as a group of citizens,” and “a group of persons politically organized.”  A body politic is also “a metaphor in which a nation is considered to be a corporate entity.”  (Under the old use of the word corporate, also known as a municipal corporation...)

The intent of ratification is that it is ratified, as is (without change).  It is to approve and sanction, not to modify.  If it is modified, it is no longer the same as it was when ratified.

The House of Representatives presented to the Senate seventeen proposed amendments.  Between both houses of Congress, they then reduced that to twelve and settled upon the final wording.  If ratification changes that wording, then they are not ratifying that which was presented.  This could result in an unending task of resolving, until the ratifications were in agreement, to determine what the final result would be.  However, Congress did the final resolving.  The states' only duty was to ratify, or not.

We can surmise that the acceptance of a sufficient number of states ratification of the Second Amendment was based upon that which was proposed, as well as what the greater number of states agreed upon in their ratification returns.  This would mean that wording and punctuation of the Resolution of Congress of September 25, 1789, is the Second Amendment, as ratified in accordance with Article V of the Constitution.  To wit:

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.

[Note that there is only one comma in the Amendment.]

We can understand better the intent of the amendment by reviewing Fifth Article in the initial proposal of seventeen amendments:

A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

It is clear that it was understood that the "militia" is "composed of the body of the people".  That was so readily understood that what the militia was, the body of the people, and that it was not necessary to repeat it in the final proposed amendment.

In its final form, it follows a grammatical structure that is found in most resolutions of the day.  A resolution would generally begin with a "Whereas", providing the foundation for a perceived necessity.  This is followed by a "Therefore", this providing the solution or resolution of the necessity.

Applying this logic to the Second Amendment, we can easily understand:

Whereas, A well regulated militia being necessary to the security of a free state;
Therefore, The right of the people to keep and bear arms shall not be infringed.

Before we consider the publications that have, over the last few centuries, published the Second amendment, we need to understand a bit about punctuation in the Eighteenth Century.

In researching punctuation of that era, I found an article, "When Did People Start Using Punctuation?"  (http://www.todayifoundout.com/index.php/2016/05/origins-punctuation-marks/).  It gives us an understanding of the change in use of commas and the fact that the practice of light punctuation that we use today was slowly adopted over a period of centuries.

The article explains that the use of a comma:

[B]egan to change after the publication of Ben Jonson’s English Grammar (1640) in which he illustrated how punctuation could help preserve an author’s original intention, rather than just giving a guide to how to read a text out-loud.  Well received, by the time of the Restoration (1660), using punctuation for syntactical purposes was finally common, and in fact, by the 18th century, excessive punctuation (such as placing a comma between every possible phrase) had become a major problem. . .  Overuse of punctuation continued to some extent through the late 19th century.

Now, that overuse went well into the late 1800s, and this is to be considered, as we continue.

During the course of researching the historical record, we have located 490 publications that include the Bill of Rights as proposed, the object being the "Article the Fourth"; or including the Bill of Rights, as ratified, being the "Second Amendment".

The publications include: Federal authorized publications, State authorized publications, general works for public consumption; Published Newspapers; a state authorized broadside; and, publications for educational purposes.

Constitution RE People and Militia

People

Preamble to the Constitution of the United States

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, 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.

In this instance, the "People" included only those who had a right to vote (being male freeholders - owning land or having an estate of a certain value).  Those voters then elected delegates to a Convention.  The Conventions then ratified the Constitution.  In this usage of "People", it refers to a limited number, based solely upon their qualifications to vote within their respective state.

From the 1856 Supreme Court decision in Dred Scott v. Sandford, 60 U.S. 393 we can get a glimpse of the then perception of "People".  From that decision, we find:

"The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing.  They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives.  They are what we familiarly call the 'sovereign people,' and every citizen is one of this [these] people, and a constituent member of this sovereignty."

Our Constitution created the first government in the history of the world that was put into place by a process that began in the community; sent delegates to state conventions; then, in convention, to determine to ratify, or not, that Constitution.

It is also the first time in the history of the world that a government was created, and within its founding document, the Constitution, had a provision for amendments, based on experience or necessity, could be ratified and become a part of the Constitution.

Two states, North Carolina and Rhode Island, would not ratify the Constitution until certain amendments were proposed for the protection of certain rights.  These proposed amendments were to assure that the rights of the people and of the States would be further protected against encroachment by the newly created federal government.  This was a serious concern to the people of that period, as they had thought that their charters and autonomy were protected until Britain decided that once given, the rights of the people and the authority granted by the colonial charters could be modified or extinguished.

The Ratification of the Constitution and the Bill of Rights

We can look back to a letter from George Washington, written on September 17, 1787, and addressed to "His Excellency the PRESIDENT OF CONGRESS".  That Congress, of course, was the Continental Congress, operating under the Articles of Confederation.  Attached to the letter was a copy of the Constitution, which had been signed by the delegates, unanimously.

Sir,

We have now the honor to submit to the consideration of the United States in Congress assembled, that Constitution which has appeared to us the most adviseable.

The friends of our country have long seen and desired, that the power of making war, peace, and treaties, that of levying money and regulating commerce, and the correspondent executive and judicial authorities should be fully and effectually vested in the general government of the Union: But the impropriety of delegating such extensive trust to one body of men is evident—Hence results the necessity of a different organization.

It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all: Individuals entering into society must give up a share of liberty to preserve the rest.  The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained.  It is at all times difficult to draw

In all our deliberations on this subject we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence.  This important consideration, seriously and deeply impressed on our minds, led each state in the Convention to be less rigid on points of inferior magnitude, than might have been otherwise expected; and thus the Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensible.

That it will meet the full and entire approbation of every state is not perhaps to be expected ; but each will doubtless consider, that had her interest been alone consulted, the consequences might have been particularly disagreeable or injurious to others ; that it is liable to as few exceptions as could reasonably have been expected, we hope and believe; that it may promote the lasting welfare of that country so dear to us all, and secure her freedom and happiness, is our most ardent wish.

With great respect, We have the honor to be, Sir, Your Excellency's
      most obedient and humble servants,
GEORGE WASHINGTON, President. 
      by unanimous Order of the Convention.

However, the Constitution would not create a new government, displacing the Continental Congress, until ratified, without changes, by nine of the 13 independent countries.  The duty fell on the Continental Congress to accept and forward or simply ignore and let die, the outcome of the Philadelphia Convention.

Preface to Ratification

After the Philadelphia Convention, September 1787, wherein the Constitution was drafted and finalized, the requirement for ratification by the people began.  During the course of the ratification effort, amendments were proposed, as had been requested by a number of states.

In order to put a proper perspective on these events, they will be presented in chronological order, to the final ratification of the Bill of Rights.

On June 21, 1788, the newly ratified Constitution became the law of the land.  It created a government for those who joined the new Union.  That government was fixed in the words of the Constitution, granting powers and authorities to the new government; placing limitations on that government, and placing certain restrictions on the State governments. 

Article VI states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

In a very concise statement, this new venture into self-government sets forth a statement that the Constitution shall be the supreme Law of the Land.  The lesser elements of Laws made in Pursuance of and Treaties made under its Authority shall also be the supreme Law of the Land.  This, then, is the rock upon which the nation was founded.

They also had the foresight to provide for changes, through the Amendment Process; and only through that process, could any part of the Constitution be revised or repealed.

One of the earliest United States Supreme Court decisions puts a perspective on the authority of government, the laws, and the Constitution.  Chief Justice John Marshall wrote the Court's decision in 1803, the case being Marbury v. Madison (5 U.S. 137), when speaking of the Constitution.

The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written.  To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrainedThe distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.  It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

We also have the corollary, which predates this decision.

About the time the Philadelphia Convention was meeting, during which the Constitution was drafted, a North Carolina Supreme Court case was being heard.  That case, Bayard v Singleton (1 N.C. 42 1787) provides insight into the authority of their Constitution as a document that creates a government, grants it certain powers and authorities, and they are, in that sense, homogeneous.

But that it was clear that no act they could pass could by any means repeal or alter the constitution, because if they could do this, they would at the same instant of time destroy their own existence as a legislature and dissolve the government thereby established [by that constitution].  Consequently, the constitution (which the judicial was bound to take notice of as much as of any other law whatever) standing in full force as the fundamental law of the land, notwithstanding the act on which the present motion was grounded, the same act must of course, in that instance, stand as abrogated and without any effect.

Ratification with Request for Amendments

"further declaratory and restrictive clauses"

On Friday, Sept 28, 1787, the Continental Congress sent the following to the member- states of the Confederation:

Sir

In obedience to an unanimous resolution of the United States in Congress Assembled, a copy of which is annexed, I have the honor to transmit to Your Excellency, the Report of the Convention lately Assembled in Philadelphia, together with the resolutions and letter accompanying the same; And have to request that Your Excellency will be pleased to lay the same before the Legislature, in order that it may be submitted to a Convention of Delegates chosen in Your State by the people of the State in conformity to the resolves of the Convention, made & provided in that case.—

with the greatest respect
     I have the honor &c—

                  C: T—

Attached thereto was the proposed Constitution for the United States of America and other documentation, including Washington's letter.  The die was cast.  The Constitution would live or die, based upon whether the states wanted to retain full autonomy or join together in a Union for certain purposes.

Each state was required to hold a convention, a condition not required in subsequent amendments to the Constitution.  Surely, there was anxiety on the part of both the Federalists and the Anti-Federalist, as they waited for the returns from the various states.

Less than three months later, on December 7, 1787, Delaware sent their ratification of the Constitution to the Continental Congress.  A section of their return indicated that they ratified the Constitution, without reservation.

We the Deputies of the People of the Delaware State, in Convention met, having taken into our serious consideration the Federal Constitution proposed and agreed upon by the Deputies of the United States in a General Convention held at the City of Philadelphia on the seventeenth day of September in the year of our Lord one thousand seven hundred and eighty seven, Have approved, assented to, ratified, and confirmed, and by these Presents, Do, in virtue of the Power and Authority to us given for that purpose, for and in behalf of ourselves and our Constituents, fully, freely, and entirely approve of, assent to, ratify, and confirm the said Constitution.

Just a few days later, on December 12, 1787, Pennsylvania ratified the Constitution, though they also proposed 15 amendments.

In the Name of the People of Pennsylvania.  Be it Known unto all Men that We the Delegates of the People of the Commonwealth of Pennsylvania in general Convention assembled Have assented to, and ratified, and by these presents Do in the Name and by the authority of the same People, and for ourselves, assent to, and ratify the foregoing Constitution for the United States of America.  Done in Convention.

Next came New Jersey, on December 18, 1787, who ratified without reservation:

Now be it known that we the Delegates of the State of New-Jersey chosen by the People thereof for the purposes aforesaid having maturely deliberated on, and considered the aforesaid proposed Constitution, do hereby for and on the behalf of the People of the said State of New-Jersey agree to, ratify and confirm the same and every part thereof.

Georgia, on January 2, 1788, ratified the Constitution, expressing a hope for the success of the coming Union:

We have the honor to transmit to the United States in Congress Assembled the ratification of the Federal Constitution by the State of Georgia.  We hope that the ready compliance of this State with the recommendations of Congress and of the late National Convention, will tend not only to consolidate the Union, but promote the happiness of our common Country.

Then, Connecticut, on January 9, 1788, ratified by a 3 to 1 majority.

The foregoing Ratification was agreed to, and signed as above, by one hundred and twenty eight, and dissented to by forty Delegates in Convention, which is a Majority of eighty eight.

Massachusetts, on February 6, 1788, ratified the Constitution.  However, they were the first to suggest amendments, as they stated:

And as it is the opinion of this Convention that certain amendments & alterations in the said Constitution would remove the fears & quiet the apprehensions of many of the good people of this Commonwealth & more effectually guard against an undue administration of the Federal Government, The Convention do therefore recommend that the following alterations & provisions be introduced into the said Constitution.

This was followed by a list of nine proposals for amendment or clarification of the Constitution, as ratified.

On April 28, 1788, Maryland ratified the Constitution, suggesting 28 amendments.

... by a Resolution of the General Assembly of Maryland in November Session Seventeen hundred and eighty seven do for ourselves and in the Name and on the behalf of the People of this State assent to and ratify the said Constitution.

South Carolina, on May 28, 1788, ratified, though with 4 recommended amendments.

DO in the name and behalf of the people of this State hereby assent to and ratify the said Constitution."

On June 21, 1788, New Hampshire ratified the Constitution, though with 12 recommendations for amendments or clarification.  The Twelfth reads:

Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.

Perhaps in anticipation of what was to come some 73 years later.

With New Hampshire's ratification, the requisite nine states, as set forth on Article VII of the Constitution, meant that The United States of America, a Union of States, dissolved the "perpetual" Articles of Confederation, leaving four states (Virginia, New York, North Carolina, and Rhode Island) as independent countries.  Within the next two years, all four also ratified the Constitution.

The Continental Congress then began a process, which was completed on July 8, 1788, as explained in the following resolution:

The State of Newhampshire having ratified the constitution transmitted to them by the Act [" of the Act" stricken out] of the 28 of Sept last & transmitted to Congress their ratification & the same being read, the president reminded Congress that this was the ninth ratification transmitted & laid before them.
Whereupon
Ordered That the ratifications of the constitution of the United States transmitted to Congress be referred to a committee to examine the same and report an Act to Congress for putting the said constitution into operation in pursuance of the resolutions of the late federal Convention.

Virginia, recognizing that the Constitution had already been ratified, moved forward with their ratification on June 25, 1788.  However, they were quite clearly dissatisfied with the Constitution, as the Notice of Ratification stated:

We the Delegates of the People of Virginia duly elected in pursuance of a recommendation from the General Assembly and now met in Convention having fully and freely investigated and discussed the proceedings of the Federal Convention and being prepared as well as the most mature deliberation hath enabled us to decide thereon Do in the name and in behalf of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination can be cancelled abridged restrained or modified by the Congress by the Senate or House of Representatives acting in any Capacity by the President or any Department or Officer of the United States except in those instances in which power is given by the Constitution for those purposes: & that among other essential rights the liberty of Conscience and of the Press cannot be cancelled abridged restrained or modified by any authority of the United States. With these impressions with a solemn appeal to the Searcher of hearts for the purity of our intentions and under the conviction that whatsoever imperfections may exist in the Constitution ought rather to be examined in the mode prescribed therein than to bring the Union into danger by a delay with a hope of obtaining Amendments previous to the Ratification, We the said Delegates in the name and in behalf of the People of Virginia do by these presents assent to and ratify the Constitution recommended on the seventeenth day of September one thousand seven hundred and eighty seven by the Federal Convention for the Government of the United States hereby announcing to all those whom it may concern that the said Constitution is binding upon the said People according to an authentic Copy hereto annexed in the Words following; [followed by the text of the Constitution].

New York followed, shortly thereafter, on July 26, 1788.  Outshining all of the other states in an effort to retain in the states and the people their inherent rights, recommended 32 amendments and clarifications.

Proposed

Initially, hundreds of suggestions were sent to the Representatives for consideration, by committee, these were consolidated into 17 suggestions that were then sent to the Senate on August 24, 1789.  On September 9, 1789, the Senate returned to the House of Representatives their amended version on September 25, 1789, a Joint Resolution of the Congress of the United States submitted to the States the following resolution, these 17 were as follows:

"In the House of Representatives,

"Monday, the 24th of August, 1789.

"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, two thirds of both Houses deeming it necessary; That the following articles be proposed to the legislatures-of the several states, as amendments to the constitution of the United States; all or any of which articles, when ratified by three-fourths of the said legislatures, to be valid, to all intents and purposes, as part of the said constitution: to wit.

"Articles in addition to, and amendment of, the constitution of the United States of America, proposed by Congress, and ratified by the legislatures of the several states, pursuant to the fifth article of the original constitution.

"ART. I. After the first enumeration, required by the first article of the constitution, there shall be one representative for every thirty-thousand, until the number shall amount to one hundred; after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred representatives, nor less than one representative for every fifty thousand persons.

"ART. II. No law, varying the compensation to the members of Congress, shall take effect, until an election of representatives shall have intervened.

"ART. III. Congress shall make no law establishing religion, or prohibiting the free exercise thereof; nor shall the rights of conscience be infringed.

"ART. IV. The freedom of speech, and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.

"ART. V. A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

"ART. VI. No soldier shall, in time of peace, be quartered in any house, without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.

"ART. VII. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

"ART. VIII. No person shall be subject, except in case of impeachment, to more than one trial, or one punishment, for the same offence, nor shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property, be taken for public use without just compensation.

"ART. IX. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.

"ART. X. The trial for all crimes (except in cases of impeachment, and in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger) shall be by an impartial jury of the vicinage, with the requisite of unanimity for conviction, the right of challenge, and other accustomed requisites; and no person shall be held to answer for a capital, or otherways infamous, crime, unless on a presentment or indictment by a grand jury; but, if a crime be committed in a place in the possession of an enemy, or in which an insurrection may prevail, the indictment and trial may, by law, be authorised in some other place within the same state.

"ART. XI No appeal to the Supreme Court of the United States, shall be allowed, where the value in controversy shall not amount to one thousand dollars; nor shall any fact, triable by a jury according to the course of the common law, be otherwise reexaminable, than according to the rules of common law.

"ART. XII. In suits at common law, the right of trial by jury shall be preserved.

"ART. XIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

"ART. XIV. No state shall infringe the right of trial by jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.

"ART. XV. The enumeration in the constitution of certain rights, shall not be construed to deny or disparage others, retained by the people.

"ART. XVI. The powers delegated by the constitution to the government of the United States, shall be exercised as therein appropriated, so that the legislative shall never exercise the powers vested in the executive or judicial; nor the executive the powers vested in the legislative or judicial; nor the judicial the powers vested in the legislative or executive.

"ART. XVII. The powers not delegated by the constitution, nor prohibited by it to the states, are reserved to the states respectively."

[From: 1985 Senate Report "Amendments to the Constitution: A Brief Legislative History"]

Refined by the Senate

After consideration and discussion between the two houses of Congress, the final resolution had removed Articles XIV (limiting state intrusion into juries, speech, and press), and XVI (mandating separation of powers), and consolidating others, reducing the number of proposed amendments to twelve.  These were then sent to the states, on October 2, 1789, for ratification.

Congress of the United States, begun and held at the city of New-York,
on Wednesday the fourth of March,
one thousand seven hundred and eighty-nine.

The conventions of a number of the states having, at the time of their adopting the constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added; And as extending the ground of public confidence in the government will best insure the beneficent ends of its institution-

Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled, two thirds of both Houses concurring, That the following articles be proposed to the legislatures of the several states, as amendments to the constitution of the United States, all or any of which articles, when ratified by three fourths of the said legislatures, to be valid, to all intents and purposes as part of the said constitution, viz:

Articles in addition to, and amendment of, the Constitution of the United States of America, proposed by Congress, and ratified by the legislatures of the several states, pursuant to the fifth article of the original constitution.

Article the First.

After the first enumeration required by the first article of the constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred; after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred; after which, the proportion shall be so regulated by Congress, that there shall not be less than two hundred representatives, nor more than one representative for every fifty thousand persons.

Article the Second.

No law varying the compensation for the services of the Senators and Representatives, shall effect, until an election of representatives shall have intervened.

Article the Third.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Article the Fourth.

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.

Article the Fifth.

No soldier shall in time of peace be quartered in-any house, without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.

Article the Sixth.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article the Seventh.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject, for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

Article the Eighth.

In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.

Article the Ninth.

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by Jury, shall be preserved; and no fact, tried by a Jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

Article the Tenth.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual imprisonment inflicted.

Article the Eleventh.

The enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Article the Twelfth.

The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

FREDERICK AUGUSTUS MUHLENBERG,
 
Speaker of the House of Representatives.

JOHN ADAMS,
Vice President of the United States, and President of the Senate.

Attest,              JOHN BECKLEY, Clerk of the House of Representatives.

                               SAMUEL A. OTIS, Secretary of the Senate.

[From: "Acts Passed at a Congress of the United States of America", 1789 by Childs and Swaine, Printers to the United States, George Washington's copy, available in an authentic reprint published in 2013 by the Mount Vernon Ladies' Association]

 

Ratification of 10 Amendments

The ratification of the Bill of Rights included a preamble:

"The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."

Note that the significant "extending the ground of public confidence in the Government" was a condition of the ratification of the first 10 amendments to the Constitution.

This would suggest that if the government were to attempt to remove or refuse to abide by any of those 10 amendments that had been ratified, the public confidence in the Government would cease to exist.

It is for that very purpose, the lack of authority of the federal government, to INFRINGE upon that right, reserved to the States, for both militia and the right to keep and bear arms.  Hence the federal limitation in Infringing.

This was the concern of the Framers of the Constitution, preserving certain rights to the States, for fear that the government would, otherwise, remove those important protections of the rights of both the People and the States (9th and 10th Amendments).

Two states, North Carolina and Rhode Island, had yet to ratify the Constitution.  Therefore, Congress made a point of assuring that North Carolina and Rhode Island were apprised of the ratification and after calling for a day of "general thanksgiving directed that they be included in the process, as indicated in the Senate Journal of September 28, 1789:

A message from the Senate informed the House that they had agreed to the resolution desiring the President of the United States to recommend a day of general thanksgiving: also, to the resolution desiring him to transmit to the Executives of the several States of the Union, and also to the Executives of the States of Rhode Island and North Carolina, copies of the amendments agreed to by Congress to the Constitution of the United States.

The final Senate entry for that date indicates that the final Bill was signed, then to be presented to the President.

A number of engrossed bills, and the proposed amendments to the Constitution, were brought in, passed, and signed: after which the House adjourned.

On November 20, 1789, New Jersey became the first state to ratify the eleven of the twelve proposed amendments, not ratifying the Second (Later ratified as the 27th Amendment on May 7, 1992).

New Jersey listed all of the articles that they were ratifying (11), and the Fourth was listed with no commas,

Article the fourth.  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.

[Source: Documentary History of the Constitution of the United States of America, 1797-1870, United States Department of State, 1894]

Then, on November 21, 1789, North Carolina ratified the Constitution, making 12 states as members of the new government.  North Carolina had been holding out, concerned that there would not be a "Declaration of Rights amended to the Constitution.  Having received word that the proposed amendments had been submitted to the states, they went ahead with ratification of the Constitution.  They also included in their documentation a listing of the twenty rights protected by their Constitution and 26 items as recommendations for the federal Constitution.

Maryland was the first state to ratify all 12 proposed amendments, on December 18, 1789.

Maryland published all twelve proposed amendments to the Constitution, with one comma after "State", and a second comma after "Arms", in the Fourth Article:

Article the fourth.  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.

[Source: Documentary History of the Constitution of the United States of America, 1797-1870, United States Department of State, 1894]

North Carolina followed, just a few days later, on December 22, 1789, also ratifying all 12 proposed amendments.

North Carolina listed all twelve amendments, the Fourth, with two commas, reading:

Article IV 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

[Source: Documentary History of the Constitution of the United States of America, 1797-1870, United States Department of State, 1894]

South Carolina did likewise on January 19, 1790.

South Carolina listed all twelve amendments, with only one comma in the Fourth:

Article 4th 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

[Source: Documentary History of the Constitution of the United States of America, 1797-1870, United States Department of State, 1894]

New Hampshire, like New Jersey, rejected the Second proposed amendment, on January 25, 1790.  New Hampshire did not list the amendments.

On January 28, 1790, Delaware rejected the First proposed amendment, ratifying the remainder, with the Fourth including three commas:

Article the Fourth, 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.

[Source: Documentary History of the Constitution of the United States of America, 1797-1870, United States Department of State, 1894]

New York joined New Jersey and New Hampshire, on February 24, 1790, in rejecting the Second, ratifying the remainder.

New York listed all twelve proposed amendments, the Fourth having only one comma.

Article the FourthA 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.

[Source: Documentary History of the Constitution of the United States of America, 1797-1870, United States Department of State, 1894]

Pennsylvania did not ratify either the First or the Second proposed amendments on March 10, 1790.  However, on September 21, 1791, they reconsidered the First, ratifying it on that date.  They included the Fourth

Pennsylvania listed all twelve proposed amendments, however identified the first and second as "sections" and the remainder as "articles.  In the Fourth, they have only one comma.

Article 4th 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.

[Source: Documentary History of the Constitution of the United States of America, 1797-1870, United States Department of State, 1894]

Rhode Island had previously refused to ratify the Constitution unless there was a Bill of Rights.  Recognizing that eight states had already ratified ten of the proposed amendments to the Constitution, and realized that their ratification of the proposed amendments would result in the adoption of the amendments.  On May 29, 1790, they ratified the Constitution, thereby becoming the thirteenth state of the Union, and the last of the original states to ratify the Constitution.

Just over a week later, on June 7, 1790, Rhode Island ratified all but the Second proposed amendment, the government having fulfilled Rhode Island's requirement of a Bill of Rights.

Rhode Island listed the eleven amendments they had ratified, the Fourth having only one comma.

4   A well regulated Militia being necessary to the Security of a free State, the Right of the people to keep & bear Arms shall not be infringed.

[Source: Documentary History of the Constitution of the United States of America, 1797-1870, United States Department of State, 1894 and 9/22/2017 certified True Copy from Rhode Island Secretary of State]

On January 10, 1791, Vermont, having resolved the land boundary dispute with New York, ratified the Constitution.

Ten months later, on November 3, 1791, Vermont ratified all 12 of the proposed amendments.  Vermont did not list any of the proposed amendments.

Finally, on December 15, 1791, Virginia ratified all 12 proposed amendments, being the last such ratification for the next 150 years.

Virginia did not quote the amendments, though they did offer verbiage as to what they would like to see as amendments.  That being the closest to the Second Amendment being their number,

Seventeenth, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State

[Source: Documentary History of the Constitution of the United States of America, 1797-1870, United States Department of State, 1894]

On the sesquicentennial (150 years) anniversary of the submittal of the 12 proposed amendments to the Constitution, by the Congress and the President, three states which had remained silent of ratification, chose to ratify the ten amendments (Bill of Rights) already adopted, on the dates shown.

Massachusetts, March 2, 1939

Georgia, March 18, 1939

Connecticut, April 19, 1939

Kentucky ratified the Bill of Rights, though we can find no record that they submitted their ratification to the federal government.

Of those who ratified the Second Amendment in the Eighteenth Century, Three, New Hampshire, Vermont, and Virginia, did not provide the wording that they had ratified.  New Jersey used no comma.  Delaware opted for three commas.  Maryland and North Carolina used 2 commas.  And 4 states, South Carolina, New York, Pennsylvania, and Rhode Island included only one comma, being consistent with the Resolution submitted to the states by the President.

Our Constitution created the first government in the history of the world that was put into place by a process that began in the community; sent delegates to state conventions; then, in convention, determined to ratify, or not, that Constitution.

It is also the first time in the history of the world that a government was created, and within its founding document, the Constitution, had a provision for amendments, based on experience or necessity, could be ratified and become a part of the Constitution.

Two states, North Carolina and Rhode Island, would not ratify the Constitution until certain amendments were proposed for amendment.  These proposed amendments were to assure that the rights of the people and of the states would be further protected against encroachment by the newly created federal government.  This was a serious concern to the people of that period, as they had thought that their charters and autonomy were protected, until Britain decided that once given, the rights of the people and the authority granted by the colonial charters could be modified or extinguished.

When the proposed amendments were finally approved by the Congress and sent to the states for ratification, they chose to affix a preamble to the proposed amendments, setting out the purpose for which they are submitted to the states.

Compromise

Now, we must consider what a compromise is.  Merriam-Webster provides the following:

1 a: settlement of differences by arbitration or by consent reached by mutual concessions

   b: something intermediate between or blending qualities of two different things

2:  concession to something derogatory or prejudicial

From a legal standpoint, we can look at what Black's Law Dictionary Free 2nd Ed. says:

An arrangement arrived at, either in court or out of court, for settling a dispute upon what appears to the parties to be equitable terms, having regard to the uncertainty they are in regarding the facts, or the law and the facts together.

Finally, we can look to Webster's 1828 Dictionary to understand the word, as the Founders understood it:

1. A mutual promise or contract of two parties in controversy, to refer their differences to the decision of arbitrators.

2. An amicable agreement between parties in controversy, to settle their differences by mutual concessions.

3. Mutual agreement; adjustment.

Now, the problem is that a compromise is between two parties.  If unresolved, a third party may act as arbiter, as in the Black's Law, legal definition.  Unfortunately, most often, the disagreement is not even recognized, such as when an administrative agency promulgates a rule, using the delegated authority granted by Congress, in an Act.

However, when any rule, order, or law, is challenged, the decision will be made without the participation of the people.  The compromise may be made between Congress and an administrative agency.  It may be made by an agency of government and a court, and it may also rise to the level of a final determination by the Supreme Court.

However, the Supreme Court has, admittedly, adopted rules by which the Constitution will be considered in a decision, only "in the last resort" (Brandeis concurring, Rule #1).  And, if they do rule on constitutionality, they will limit their ruling to be "[no] broader than is required by the precise facts to which it is to be applied."

They have avoided questions of a constitutional nature, alleging that the matter requires a political decision, not a judicial one, while often ruling on the same subject, making it judicial and not political.

How can this comport with what Justice Marshall and the North Carolina Supreme Court have told us?  Has something changed?  Has the Constitution been amended to diminish its importance or significance?  Or, is that just one example of the compromises that have taken place over the past two centuries that have compromised the rights of the people, thereby increasing the authority of the government?

However, in any instance, the decisions made are a compromise between a body or agency of the government and another body, or agency; or, between a body or agency and the Court.

So, when it comes to a test between a statute, a rule, or even a policy, the compromise is made by either Congress, an agency, or even the courts, between the statute, rule, or policy, and the Constitution.

Therein lies the problem.  The Constitution was never intended to be compromised.  If anything is not "in pursuance thereof", then that "anything" is nothing.  It has no place, even for the mildest of consideration.  It is only the Constitution, and those laws consistent with both the document and the intent.  There is no debate.

This article will discuss, from ratification to present, how the right protected under the Second Amendment, has been compromised.  Note that I said "right", in the singular.  There are not two rights in the Second Amendment, there is only one, as you shall see, as we continue.

A Century of Publications

A Century of Publications of the Second Amendment

Now, that overuse went well into the late 1800s, and this is to be considered, as we continue.

During the search of the historical record, there have been 490 publications found that include the Bill of Rights as proposed, the object being the "Article the Fourth"; or including the Bill of Rights, as ratified, being the "Second Amendment".

The publications include: Federal authorized publications, State authorized publications, general works for public consumption; Published Newspapers; a broadside, and publications for educational purposes.

Bill of Rights

When the Bill of Rights or the Constitution is addressing an individual’s rights, it does so explicitly.

§  In the Fifth Amendment, it speaks of the individual: “No PERSON (individual) shall be held to answer for a capital, or otherwise infamous crime… nor shall any PERSON be subject for the same offence twice…”

§  In the Sixth Amendment, it speaks again of an individual: “The ACCUSED shall enjoy the right to a speedy and public trial.”

§  The Fourth Amendment drives this argument home by parsing between the collective and the individual: “The right of the people to be secure in their PERSONS, houses, papers and effects…”  They first speak of the governed body, but quickly make clear people are to be secure in their persons against unreasonable search and seizure.

When the Bill of Rights or the Constitution is addressing the body politic, the people, the plurality, they do so explicitly.

§  “We the people of these united states.”

§  The first amendment, “…the right of the PEOPLE to peaceably ASSEMBLE.”  This is why loitering can be illegal and protest cannot be made illegal.”  (Don’t hear too many people throwing a fit over THAT one.)

§  “In the second amendment, “the right of the PEOPLE to keep and bear arms shall not be infringed.”

The Second Amendment never avows that individuals must be allowed to buy and collect guns in any capacity they choose, free of regulation.  It guarantees nothing outside of a trained body serving a governing body for the body politic.

At the time of the drafting of the Constitution and the Bill of Rights, gun ownership wasn’t something considered controversial.  Most guns were owned by rich, or at least land-owning white men, the gentry, traders, and pioneers.  While Indians did own guns, they were usually an inferior quality of trade gun.  Also, an Indian on a horse could shoot thirty arrows in the time it took a man to reload and fire a gun.

They had no cause for concern of heavily armed crowds of the poor, or blacks, or women.  The power and money and almost all the land was in the hands of rich, white men who feared the power of a centralized tyrannical body.  Remember that they had recently fought to free themselves from the British crown.  As the states navigated their way through the ultimate structure of the federal government, the one thing that slowed the process down was near universal distrust of a federal body that could potentially have overwhelming financial and military control over the states.

There is nothing in the constitution or any of the amendments that try to curtail gun ownership, but there is also nothing that guarantees individual gun ownership.  Even if you ignore my statements of facts or following assertions, you can read the words themselves; there is definitely nothing that promises uncontrolled, unregulated or untrained gun ownership.  It instead attaches those each as stipulations to keeping guns.  In almost all previous drafts of the second amendment, the modifying stipulations are present in some way.

Virginia Declaration of Rights, June 12, 1776
“XIII.  That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power."

A Declaration of the Rights of the Inhabitants of the Commonwealth or State of Pennsylvania, 1776
“XIII.  That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.”

A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts, 1780
“Art. XVII. 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 power shall always be held in an exact subordination to the civil authority and be governed by it.”

Proposed by James Madison June 8, 1789 to the House of Representatives:
“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.”

Common misunderstanding of the Second Amendment prevails in most segments of the population mainly because of the perpetuation of incomplete or purposefully inaccurate interpretations of the Second Amendment.  People seem to love quoting the second half of the amendment or cutting and selectively pasting the words of the founding fathers speaking about the issue at the time.

second_amendment

Ignoring part of a thing ignores all of a thing.

An example of this quote splicing.  Notice how in context the message changes:

Partial: “The great object is, that every man be armed…Every one who is able may have a gun.

Whole: “May we not discipline and arm them [the states], as well as Congress, if the power be concurrent?  so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed.  The great object is, that every man be armed.  But can the people afford to pay for double sets of arms, &c.?  Every one who is able may have a gun.  But we have learned, by experience, that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for may years, endeavored to have the militia completely armed, it is still far from being the case.”

— Patrick Henry speaking at the 1788 Virginia debate to ratify the Constitution.  The partial quote was used by Stephen Halbrook in The Right to Keep and Bear Arms.

Arguments against the Second Amendment

Paul Stevens, JD, in his dissenting opinion for District of Columbia et al. v. Heller, wrote, "the Framer's single-minded focus in crafting the constitutional guarantee 'to keep and bear arms' was on military use of firearms, which they viewed in the context of service in state militias," hence the inclusion of the phrase "well regulated militia."  [3] "Michael Waldman, JD, President of the Brennan Center for Justice at the New York University School of Law, stated there is nothing about an individual right to bear arms in the notes about the Second Amendment when it was being drafted, discussed, or ratified; the US Supreme Court declined to rule in favor of the individual right four times between 1876 and 1939; and all law articles on the Second Amendment from 1888 to 1959 stated that an individual right was not guaranteed."

From: http://www.inkst.ink/2015/09/second-amendment-argument-is-bullshit/

Electors

Indians, Negroes, whether slaves or free, and nearly all non-white immigrants, were denied the privilege of citizenship, until 1868, with the ratification of the Fourteenth Amendment.

Next, in Article I, § 2, we find, once again, a limitation to those qualified to vote:

"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."

Further on in the Decision, the question is posed, and answered, as to just who qualifies as a citizen:

"It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted.  And in order to do this, we must recur to the Governments and institutions of the thirteen colonies, when they separated from Great Britain and formed new sovereignties, and took their places in the family of independent nations.  We must inquire who, at that time, were recognised as the people or citizens of a State, whose rights and liberties had been outraged by the English Government; and who declared their independence, and assumed the powers of Government to defend their rights by force of arms.

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument."

At the time of the ratification of the Constitution, each state had determined just who could vote:

·         New Hampshire, 'every male inhabitant of twenty-one years of age and upwards, excepting paupers

·         Massachusetts 'every male inhabitant of twenty-one years of age and upwards, having a freehold estate within the commonwealth of the annual income of three pounds, or any estate of the value of sixty pounds,

·         Rhode Island 'such as are admitted free of the company and society' of the colony,

·         Connecticut 'maturity in years, quiet and peaceable behavior, and forty shillings freehold or forty pounds personal estate,

·         New York male inhabitant of full age who shall have personally resided... six months immediately preceding the day of election . . . shall have been a freeholder, possessing a freehold of the value of twenty pounds within the county, or have rented a tenement therein of the yearly value of forty shillings, and been rated and actually paid taxes to the State,

·         New Jersey 'all inhabitants . . . of full age who are worth fifty pounds,

·         Pennsylvania 'every freeman of the age of twenty-one years

·         Maryland 'all freemen above twenty-one years of age having a freehold of fifty acres of land [or] having property in the State above the value of thirty pounds

·         North Carolina, 'all freemen of the age of twenty-one years

·         South Carolina 'every free white man of the age of twenty-one years... who hath a freehold of fifty acres of land, or a town lot of which he hath been legally seized and possessed

There is no other reference to "People" in the body of the Constitution though the Amendments, adopted as the Bill of Rights, use the term.  Though in these instances, there is no reference to a voting requirement, so the usage would apply only to those who were "citizens".  For example, in the First Amendment, we find:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Obviously, the right would extend to all citizens to practice the religion of their choice or speak their minds.  It is implied that this applies to "people", as the right also extends to "peaceably assemble."  Surely, there would be no intention of denying citizens any of these rights.

When we get to the Second Amendment, we find:

"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 militia would exclude women, though the militia is separate and distinct from the second phrase providing for the right of the "people" to "keep and bear Arms."  Though a slave could not "keep and bear Arms", presumably, the women citizens were not precluded from such.  After all, though some disguised themselves as men, though some did not, a number of women served in combat during the Revolutionary War.

Again, we have a right not limited by voting qualification, however extending only to the citizens, with the Fourth Amendment.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

And, once again, it refers only to citizens, including women, as the protection afforded would apply to the home of a citizen, whether a man was a part of the household, or not.

The Ninth Amendment, based upon the previous application of the word "people", is properly applied, again, only and specifically to citizens, as it is applicable to the "certain rights", mentioned, as well as those commonly accepted, though not identified within the Bill of Rights.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Tenth Amendment goes one step further in its recognition that some of the "powers not delegated" are retained by the state.  However, if the state is not granted certain powers by the people, their respective constitutions, those that are not delegated to the state do remain with the people.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

To understand who the "people" are, and who they were not, in 1856, we can look at the Supreme Court decision in Dred Scott v. Sandford (60 U.S. 393).  You will see that it is quite apparent that those who were not citizens of the United States, or one of the States, that they were not included within the definition of "people".  From that decision:

"The brief preamble sets forth by whom it was formed, for what purposes, and for whose benefit and protection.  It declares that it is formed by the people of the United States; that is to say, by those who were members of the different political communities in the several States; and its great object is declared to be to secure the blessings of liberty to themselves and their posterity.  It speaks in general terms of the people of the United States, and of citizens of the several States, when it is providing for the exercise of the powers granted or the privileges secured to the citizen.  It does not define what description of persons are intended to be included under these terms, or who shall be regarded as a citizen and one of the people.  It uses them as terms so well understood, that no further description or definition was necessary. 

But there are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed.

One of these clauses reserves to each of the thirteen States the right to import slaves until the year 1808, if it thinks proper...  And by the second, they pledge themselves to maintain and uphold the right of the master in the manner specified, as long as the Government they then formed should endure.  And these two provisions show, conclusively, that neither the description of persons therein referred to, nor their descendants, were embraced in any of the other provisions of the Constitution; for certainly these two clauses were not intended to confer on them or their posterity the blessings of liberty, or any of the personal rights so carefully provided for the citizen.

For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances...  Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any-one to be a witness against himself in a criminal proceeding.

But in considering the question before us, it must be borne in mind that there is no law of nations standing between the people of the United States and their Government, and interfering with their relation to each other.  The powers of the Government, and the rights of the citizen under it, are positive and practical regulations plainly written down.  The people of the United States have delegated to it certain enumerated powers, and forbidden it to exercise others.  It has no power over the person or property of a citizen but what the citizens of the United States have granted."

It is clear that the "people" is inclusive of all citizens, and exclusive of all others.  A foreigner, or visitor to this country, is not among those protected by the Constitution, unless and until such time as citizenship is obtained.

Table of Publications

Table of comma variations in published editions of the Second Amendment.

This study was for published editions of the Second Amendment, in chronological order of (historically representative) publications, with a few more recent publications for perspective.  There was no selective removal of any documents, all that were found, at the time of this writing, were included.  This study was based upon Internet searches, library/law library searches and publications held by participating team members, and state and federal archives.  A subsequent Part 2 will be provided with all publications, with images, of title pages and Second Amendment as published in that document.  It will include additional items, as the team continues to acquire more records.

 

Decade

Total Pubs.

1 comma

2 commas

3 commas

1789

23

1

2

1790 - 1799

33

2

0

1800 - 1809

21

2

0

1810 - 1819

21

0

0

1820 - 1829

49

6

0

1830 - 1839

65

3

0

1840 - 1849

61

2

2

1850 - 1859

59

2

5

1860 - 1869

43

0

0

1870 - 1879

29

0

2

1880 - 1889