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The Supreme Court and the Right To Keep and Bear Arms


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Title: The Founding Father Who Told Americans We Have A Right To Military Weapons
Source: Daily Caller
URL Source: https://dailycaller.com/2019/04/15/natelson-military-weapons
Published: Oct 20, 2019
Author: Robert Natelson
Post Date: 2019-10-20 15:26:27 by Hondo68
Ping List: *Bang List*     Subscribe to *Bang List*
Keywords: Neighborhood Nuclear Superioty, NOW!, Tench Coxe
Views: 120
Comments: 11

NATELSON: The Founding Father Who Told Americans We Have A Right To Military Weapons

(KAREN BLEIER/AFP/Getty Images)

Does the Constitution’s right to keep and bear arms apply to everyone? Or only to law enforcement and the National Guard? Does the right include so-called “assault weapons?”

A newly published document from America’s founding offers a clue.

When interpreting the Constitution, judges and scholars consider what people said about the document around the time it was adopted. Writings by the Constitution’s advocates explaining its meaning to the general public are particularly helpful, because Americans relied on those explanations in deciding to ratify the document.

The most famous writings of this kind were penned by Alexander Hamilton, James Madison, and John Jay and collected as “The Federalist.” But there were many others. Among the most important were newspaper op-eds produced by Tench Coxe.

Few people know of Coxe today, but during the founding era he was famous. He served in the Confederation Congress. After the Constitution was ratified he became our first assistant secretary of the treasury, working directly under Alexander Hamilton.

Public release of the proposed Constitution on Sept. 17, 1787 ignited a massive public debate. Opponents argued that if the instrument were ratified it would create an all-powerful central government. Coxe supported the Constitution — and like Hamilton, Madison, and Jay, he was frustrated by opponents’ misrepresentations.

Coxe wrote a series of op-eds to accurately explain the Constitution’s legal effect. His informal style was much easier to understand than the scholarly tone of The Federalist, and his articles became extremely popular.

Many of Coxe’s op-eds were republished long ago, but new ones sometimes surface. The editors of the Documentary History of the Ratification of the Constitution recently issued new volumes that include four productions by Coxe previously known to only a few dedicated scholars.

In a Pennsylvania Gazette article published February 20, 1788, Coxe addressed the right to keep and bear arms: “The power of the sword, [opponents] say … is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY … Who are the militia? are they not ourselves[?].”

Coxe added, “The unlimited power of the sword is not in the hands of either the federal or state governments, but where I trust in God it will ever remain, in the hands of the people.”

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In other words, all able-bodied adult men have the right to keep and bear arms — not just law enforcement and the military. (Since ratification of the 14th Amendment, women also possess the right.)

Coxe also addressed the kinds of arms included: “Their swords, and every other terrible implement of the soldier, are the birth-right of an American.” In other words, the right to keep and bear includes military arms, not just hunting pieces. Rifles such as the AR-15 (misleadingly branded “assault weapons”) are protected — not despite the fact that they are military weapons, but precisely because they are military weapons!

Coxe’s view is hardly surprising to those of us who study the founders: The Revolutionary War had ended only five years before. If American citizens had not possessed military-style weapons, we would have lost.

Coxe wrote further, “Congress have no power to disarm the militia. What clause in the state or federal constitution hath given away that important right[?]”

This passage was composed well before the Second Amendment was proposed. Even then, Congress had no power to disarm the people. This was part of Coxe’s wider argument that federal powers were strictly limited. In other op-eds, Coxe listed many other matters outside the federal sphere and reserved exclusively to the states: education, social services, agriculture, most business regulation, and others.

Despite the fact that Americans relied on such representations when ratifying the Constitution, the federal government now asserts almost unlimited authority. Since politicians always seek to expand their power, that is understandable. Unfortunately, writers on the Constitution often pervert history and constitutional meaning to provide “cover” to the politicians. An example is the ludicrous claim — promoted by some leading law professors — that the Constitution’s Commerce Clause granted Congress vast power over our national life.

Tench Coxe’s writings provide a useful corrective. They are valuable reading for anyone who wants to understand what the Constitution actually says.


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#1. To: Hondo68 (#0)

Seems obscure, not really a Founder.

He was 11 years old in 1776. He had apparent Royalist sympathies as a youth. He did finally join a state militia when he was 25 and there was no danger of having to actually fight Redcoats.

I'm not sure how influential he was in the era. He wasn't a leader or fighter during the Revolutionary War and he didn't sign the Declaration or participate in the earliest legislative bodies, the First Continental Congress (1774) and the Second Continental Congress (1775-1781).

Tooconservative  posted on  2019-10-21   0:19:58 ET  Reply   Trace   Private Reply  


#2. To: All (#0)

When interpreting the Constitution, judges and scholars consider what people said about the document around the time it was adopted. Writings by the Constitution’s advocates explaining its meaning to the general public are particularly helpful, because Americans relied on those explanations in deciding to ratify the document.

District of Columbia v. Heller, 554 US 570, 576-77 (2008)

II

We turn first to the meaning of the Second Amendment.

A

The Second Amendment provides: “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.” In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.

- - - - - - - - - - - - - - - - - - - -

Aldridge v. Williams, 44 U.S. 9, 24 (1845)

In expounding this law, the judgment of the Court cannot in any degree be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself, and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject and looking, if necessary, to the public history of the times in which it was passed.

- - - - - - - - - - - - - - - - - - - -

United States v Union Pacific Railroad Company, 91 U.S. 72 (1875)

In construing an act of Congress, we are not at liberty to recur to the views of individual members in debate nor to consider the motives which influenced them to vote for or against its passage. The act itself speaks the will of Congress, and this is to be ascertained from the language used. But courts, in construing a statute, may with propriety recur to the history of the times when it was passed, and this is frequently necessary in order to ascertain the reason as well as the meaning of particular provisions in it. Aldridge v. Williams, 3 How. 24; Preston v. Browder, 1 Wheat. 115, 120 [argument of counsel -- omitted].

- - - - - - - - - - - - - - - - - - - -

Downes v. Bidwell, 182 U.S. 244, 254 (1901)

In expounding this law, the judgment of the Court cannot in any degree be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself, and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject and looking, if necessary, to the public history of the times in which it was passed.

- - - - - - - - - - - - - - - - - - - -

Ex Parte Grossman, 267 U.S. 86, 108-09 (1925)

The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of. the thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.

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nolu chan  posted on  2019-10-21   12:32:32 ET  Reply   Trace   Private Reply  


#3. To: nolu chan (#2)

The Founding Father Who Told Americans We Have A Right To Military Weapons

Tench Coxe was not a Founding Father.

misterwhite  posted on  2019-10-21   12:52:15 ET  Reply   Trace   Private Reply  


#4. To: Hondo68 (#0)

The Revolutionary War had ended only five years before. If American citizens had not possessed military-style weapons, we would have lost.

The American citizens who could afford arms owned rifles for self-defense and hunting. Rifles were well-made, accurate and expensive, and their proud owners displayed them above the fireplace.

The militia used smooth-bore muskets -- cheap and fast loading, but inaccurate. When used in volley fire, however, they were very effective.

Today's citizen would have, say, a Model 70 for hunting (and self-defense). Well-made, accurate and expensive. Not really a weapon used by today's military.

misterwhite  posted on  2019-10-21   13:13:08 ET  Reply   Trace   Private Reply  


#5. To: misterwhite (#3)

The Founding Father Who Told Americans We Have A Right To Military Weapons

That's the title of the article. I did not post the article.

Tench Coxe was not a Founding Father.

I did not say anything about Tench Coxe. However, you are correct, Tench Coxe was not a Founding Father. He was a contemporary of the Framers.

He was Secretary of the Annapolis Convention (1786) and a delegate to the Continental Congress (1787-88).

I did post excerpts from five U.S. Supreme Court opinions showing that the Constitution and statutes are interpreted by the ordinary meaning of the plain text at the time written.

nolu chan  posted on  2019-10-21   14:10:43 ET  Reply   Trace   Private Reply  


#6. To: misterwhite, WMDs common (#4)

Many WMD's were privately owned, for instance canons to fend off the Barbary Pirates and such.



Ron Paul - Lake Jackson Texas Values

Hondo68  posted on  2019-10-21   14:41:12 ET  Reply   Trace   Private Reply  


#7. To: Hondo68 (#6)

Many WMD's were privately owned, for instance canons to fend off the Barbary Pirates and such.

True. But if Congress wrote a law back then banning the private ownership of cannons, I'm not sure the second amendment would have protected them.

misterwhite  posted on  2019-10-21   15:00:55 ET  Reply   Trace   Private Reply  


#8. To: nolu chan (#5)

Sorry. That post was meant for Hondo68.

misterwhite  posted on  2019-10-21   15:02:15 ET  Reply   Trace   Private Reply  


#9. To: misterwhite (#7)

if Congress wrote a law back then banning the private ownership of cannons, I'm not sure the second amendment would have protected them.

That's what the canons & nukes are for, scofflaw .gov tyrants.



Ron Paul - Lake Jackson Texas Values

Hondo68  posted on  2019-10-21   23:46:02 ET  Reply   Trace   Private Reply  


#10. To: Hondo68 (#9)

That's what the canons & nukes are for,

Those weapons were to be controlled by the militia of each State, not individual militia members.

misterwhite  posted on  2019-10-22   9:37:06 ET  Reply   Trace   Private Reply  


#11. To: misterwhite, shuck 'n jive (#10)

Those weapons were to be controlled by the militia of each State, not individual militia members.

BS, you just made that crap up.



Ron Paul - Lake Jackson Texas Values

Hondo68  posted on  2019-10-22   12:59:45 ET  Reply   Trace   Private Reply  


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