Tenche Coxe's Opinion of the Second Amendment

[other]

Re: Tench Coxe's Opinion of the Second Amendment

So might be storage in a central depot, if the militia commander deemed it to be.

The fact that a militia could be called to a specific location at a specific time, with weapons, doesn't mean that militia commanders could take weaponry from militia men to do as they pleased.

You're begging the question. You assume that it is unlawful to store the weapons in a depot, but that is also the conclusion of your argument. This is a fallacy.

No. You are assuming it is lawful for militia commanders to strip men of their weapons for storage in a central depot, with no basis for this assumption.

The fact is, there is nothing in principle that is different between the government requiring the militiamen to bring their firearms to a specific location for training and the government requiring them to bring their firearms to a location for storage. Both constitute a deprivation of liberty and property rights in the weapon (not necessarily a complete confiscation, but both have an opportunity cost and deprive the militiamen of the liberty to act otherwise with their firearms). In principle, they are the same. If one is allowed under the original intent of the second amendment, both must logically be allowed.

No, because as I said before, one is required for a militia to exist (and mentioned in the law), the other is not and is actually antithetical to the concept of a militia (and not mentioned in the law).

Again, it's up to the commander to decide what is necessary.

Militia commanders still operated within the bounds of the law. The intent of the law was to provide a militia; it doesn't follow that people can be stripped of their weapons -- that makes no sense.

Or a tort, or a breach of contract, or a violation of any other civil obligation.

Yes, any conviction/violation, but this is irrelevant and not contrary to my argument. That's why the law specifically mentioned that due process still applied for infractions.

We aren't talking about confiscation, we're talking about the right to store a gun in your own home at all times and whether or not it can be violated under the original intent of the second amendment. It clearly can be, because this is precisely what the militia act of 1792 does, it requires the militiamen to bring their guns to a certain location under penalty of law. There is no difference in principle between this and the hypothetical storage depot.

No, not entirely. For instance, consider this: the act only requires that they bring what is required, not that they bring all their weapons. If someone has two rifles and a shotgun, they only needed to bring a single rifle and, again, this is because militias need men to bring at least a single weapon to be effective. The intent was not to give commanders control over all the men's weapons, but to make for an effective militia.

So, storage depot, not absolutely necessary. Weapons were intended to be kept and maintained at home.

 

[other]

Re: Tench Coxe's Opinion of the Second Amendment

wrong. The 6th Amendment was written because under the British system of law, we did not have the right to counsel, did not have the right to a trial by a jury of our peers, and did not have the right to a speedy trial.

Therefore, the 6th Amendment created these rights, which were previously not recognized by the govt.

Yes, the British "system of law." The british gov't had violated their right to counsel, etc, so that's why the amendment was added -- to prevent the new US gov't from doing the same thing.

Everyday citizens don't prevent you from taking counsel, gov't officials do. That amendment prohibits the federal government from denying that right.

<bold added by me>

oh, and it doesn't create any right, it enumerates existing rights. there's an important difference.

 

[Guy Incognito]

Re: Tench Coxe's Opinion of the Second Amendment

The fact that a militia could be called to a specific location at a specific time, with weapons, doesn't mean that militia commanders could take weaponry from militia men to do as they pleased.

No, it doesn't mean the commander could take the weaponry on a whim, but this is a strawman.

What it does mean is that the federal government could order the disposition of the firearms in a certain time and place connected with militia service without violating the original intent second amendment.

No. You are assuming it is lawful for militia commanders to strip men of their weapons for storage in a central depot, with no basis for this assumption.

Another straw man. The militiamen would obviously retain rightful title in the depot scenario, just as they do during mandatory training. The point is that the government has deprived them of their right to dispose of their weaponry at their liberty.

No, because as I said before, one is required for a militia to exist (and mentioned in the law), the other is not and is actually antithetical to the concept of a militia (and not mentioned in the law).

Incorrect. Nothing about a militia requires regular training, nor does it require that militiamen buy their own provisions. The militia act of 1792 is just one of many different approaches to a militia. That's the permissible range I was talking about earlier.

Militia commanders still operated within the bounds of the law. The intent of the law was to provide a militia; it doesn't follow that people can be stripped of their weapons -- that makes no sense.

Another straw man, that has been adequately dispensed with above.

Yes, any conviction/violation, but this is irrelevant and not contrary to my argument. That's why the law specifically mentioned that due process still applied for infractions.

You made it relevant when you launched into this strawman argument about confiscation.

No, not entirely. For instance, consider this: the act only requires that they bring what is required, not that they bring all their weapons. If someone has two rifles and a shotgun, they only needed to bring a single rifle and, again, this is because militias need men to bring at least a single weapon to be effective. The intent was not to give commanders control over all the men's weapons, but to make for an effective militia.

Ok, I'll see your hypothetical and raise you one. Imagine a militia where most of the members were too poor to afford their own weapons, but a few could afford a great many. Wouldn't it be required for the militia commander to collect and divvy up weapons from those who had many, and distribute them to the militiamen who could not afford them?

Of course it does. It follows that if the militia act is permissible under the original intent of the second amendment, any number of in kind deprivations are permissible.

So, storage depot, not absolutely necessary. Weapons were intended to be kept and maintained at home.

Again, "absolutely necessary" is a false standard.

 

[other]

Re: Tench Coxe's Opinion of the Second Amendment

No, it doesn't mean the commander could take the weaponry on a whim, but this is a strawman.

What it does mean is that the federal government could order the disposition of the firearms in a certain time and place connected with militia service without violating the original intent second amendment.

Another straw man. The militiamen would obviously retain rightful title in the depot scenario, just as their do during training. The point is that the government has deprived them of their right to dispose of their weaponry at their liberty.

Incorrect. Nothing about a militia requires regular training, nor does it require that militiamen buy their own provisions. The militia act of 1792 is just one of many different approaches to a militia. That's the permissible range I was talking about earlier.

Another straw man, that has be adequately dispensed with above.

You made it relevant when you launched into this strawman argument about confiscation.

They aren't strawmen. You are inserting intent based on a perceived principle that doesn't exist. The law mentions the necessities with regard to the militia man and his weapon, and it is obvious the intent was the creation of an effective militia, not the forceful control over peoples' firearms.

Ok, I'll see your hypothetical and raise you one. Imagine a militia where most of the members were too poor to afford their own weapons, but a few could afford a great many. Wouldn't it be required for the militia commander to collect and divvy up weapons from those who had many, and distribute them to the militiamen who could not afford them?

Read the law. It says the members were required to provision for themselves, not others.

Of course it does. It follows that if the militia act is permissible under the original intent of the second amendment, any number of in kind deprivations are permissible.

Nope, not at all. See above. This is just a good example of how the principle you are perceiving fails.

And what about the ownership of multiple guns... you're implying that the law requires that each man bring all his weapons if he has many, to be divvied out as the commander sees fit. That is not in the law, at all. That is your fabrication.

If your principle was carried to its logical extent, it would require that all personally owned weapons be subject, and they weren't. That kind of usurpation has nothing to do with the law, and was prohibited by the 2nd amendment. Multiple weapons per man were not required for an effective militia, and as such all "weapons" held by the people in general were beyond the scope of the law.

Again, "absolutely necessary" is a false standard.

There's no indication that the law intended for commanders to have the ability to deprive people of their weapons in any way. It was meant to ensure they brought a weapon so as to serve effectively in the militia. Your extrapolation is baseless.

To attribute the power over all weapons in general (which is the scope of the 2nd amendment) to this law is to drastically overextend its original intent.

 

[Guy Incognito]

Re: Tench Coxe's Opinion of the Second Amendment

They aren't strawmen. You are inserting intent based on a perceived principle that doesn't exist. The law mentions the necessities with regard to the militia man and his weapon, and it is obvious the intent was the creation of an effective militia, not the forceful control over peoples' firearms.

You're misunderstanding. The original intent of the second amendment embodies a single right, and there are a range of laws that can be implemented while abiding by the original intent of the second amendment. The militia act is such a law, and we can thus use it as a barometer. The principle behind the act demonstrates that government regulation of weapons storage is permissible.

Are the militiamen allowed to store their weapons at a place of their choosing during training and muster? Of course not, they are forcibly compelling to bring their weaponry with them. They couldn't store it at home even if they wanted to, they have to have it at the training location or suffer legal penalties. Therefore there is nothing about a right to individual choice of firearm storage location protected in the original intent of the second amendment.

The hypothetical storage depot is a logical extension of this principle.

 

[other]

Re: Tench Coxe's Opinion of the Second Amendment

You're misunderstanding. The original intent of the second amendment embodies a single right, and there are a range of laws that can be implemented while abiding by the original intent of the second amendment. The militia act is such a law, and we can thus use it as a barometer. The principle behind the act demonstrates that government regulation of weapons storage is permissible.

I disagree w/ your view of the 2nd, but as I said before I'll give you this for the sake of argument, because the principle of interference you are talking about is still overstepping...

Are the militiamen allowed to store their weapons at a place of their choosing during training and muster? Of course not, they are forcibly compelling to bring their weaponry with them. They couldn't store it at home even if they wanted to, they have to have it at the training location or suffer legal penalties. Therefore there is nothing about a right to individual choice of firearm storage location protected in the original intent of the second amendment.

The hypothetical storage depot is a logical extension of this principle.

Why are you ignoring the issue of multiple weapons? The fact that a single weapon must be provided by a militia man is merely a requirement of an effective militia; it is not required that all weapons be subject to this law. Your principle cannot be extended to encompass all weapons, as per the 2nd amendment. At most it would only apply to the single weapon brought to fufill the service -- and even then, there would be no reason to store them in a central depot. The only reason that single weapon was required is because it was for a militia.... that a man shows up with a gun is a minimum requirement, not a mandate that the all the peoples' weapons were subordinate to state interest.

Just because the law required that a man show up and provision himself with his own weapon did not mean anything other than the fact that he was a militia man, bringing his own personal weapon to fufill his duty. His duty wouldn't require that he give up his weapon, but that he bring it with him. That's it. It's still his gun, and he still has it -- the act from 1792 didn't change that. His right to keep and bear arms remained entirely unaffected. He just had to bear his weapon for the state for a limited term of service.

 

[Guy Incognito]

Re: Tench Coxe's Opinion of the Second Amendment

I disagree w/ your view of the 2nd, but as I said before I'll give you this for the sake of argument, because the principle of interference you are talking about is still overstepping...

Thanks! I have to say, you're the first opponent I've encountered in a second amendment debate who is willing to be so charitable as to grant a premise for the sake of argument. I'm truly impressed.

Why are you ignoring the issue of multiple weapons?

Sorry, I haven't had time yet to go through that entire post, I only got through the part I responded to. I'll answer that now:

Read the law. It says the members were required to provision for themselves, not others.

This is the range of laws again. The militia act didn't require that militiamen provide weaponry for others, but there is nothing in principle precluding such a law if it was required for militia efficacy. If there is something that precludes it, the burden is on you to show what that is, and where it can be found.

Nope, not at all. See above. This is just a good example of how the principle you are perceiving fails.

And what about the ownership of multiple guns... you're implying that the law requires that each man bring all his weapons if he has many, to be divvied out as the commander sees fit. That is not in the law, at all. That is your fabrication.

You're misunderstanding. The divvying up law is my fabrication, i don't dispute that. I'm saying that based on the principle of the militia act, such a law as the divvying up law is allowable under the second amendment. If the militia act is allowable, the hypothetical divvying-up law is allowable on the same principle.

If your principle was carried to its logical extent, it would require that all personally owned weapons be subject, and they weren't.

Not require. Allow. i think this is amply supported by the facts.

That kind of usurpation has nothing to do with the law, and was prohibited by the 2nd amendment.

You haven't shown that it was prohibited by the second amendment, and that is a burden you must meet. The militia act didn't provide for it, but I have shown that, in principle, it follows.

 

[other]

Re: Tench Coxe's Opinion of the Second Amendment

This is the range of laws again. The militia act didn't require that militiamen provide weaponry for others, but there is nothing in principle precluding such a law if it was required for militia efficacy. If there is something that precludes it, the burden is on you to show what that is, and where it can be found.

You're looking at the issue from a statist perspective... ie. holding the presumption that the law allows for broad action and it is up to the individual to conform. It works the other way. The act lays out the specific requirements and terms of service, necessary for the militia to be effective. Additional burdens require that additional laws or addendums be passed to have any effect. The law itself does not require or allow, anywhere, for commanders to require some men to bring additional weapons, for instance.

You're misunderstanding. The divvying up law is my fabrication, i don't dispute that. I'm saying that based on the principle of the militia act, such a law as the divvying up law is allowable under the second amendment. If the militia act is allowable, the hypothetical divvying-up law is allowable on the same principle.

No, I've got what you're saying. It doesn't hold water. The militia act did not allow for weapons to be redistributed or divvied up, it simply required that each man provide for himself. That is what is written.

You haven't shown that it was prohibited by the second amendment, and that is a burden you must meet. The militia act didn't provide for it, but I have shown that, in principle, it follows.

As I mentioned at the beginning of this post. I don't have to show that it is precluded, you have to show that it is allowed. And in the case of a militia, it isn't even sensible that anyone would be deprived of their personal weapon -- they would need it to fight. It would not be stored in a depot, it would be kept close and maintained to fufill the militia's mission, then they would go home.

 

[TurtleDude]

Re: Tench Coxe's Opinion of the Second Amendment

Guy is just making stuff up to engage in a contrarian bit of mental masturbation. He has never come close to demonstrating that Coxe believed that only active duty militiamen were protected by the Second. He cannot find any authority for an opinion he has concocted so he can engage in this intellectual self abuse. Not one expert, not one document, not one quote to support his claim.

 

[Thunder]

Re: Tench Coxe's Opinion of the Second Amendment

The british gov't had violated their right to counsel, etc, so that's why the amendment was added -- to prevent the new US gov't from doing the same thing.

wrong. very very wrong.

there is no natural right to have a trained attorney represent you in a court of law.

that right was created by the 6th Amendment.

 

[TurtleDude]

Re: Tench Coxe's Opinion of the Second Amendment

wrong. very very wrong.

there is no natural right to have a trained attorney represent you in a court of law.

that right was created by the 6th Amendment.

that right was created by the USSC in Gideon

 

[Thunder]

Re: Tench Coxe's Opinion of the Second Amendment

that right was created by the USSC in Gideon

no, wrong again.

this right was created by the 6th Amendment. as well as the right to a speedy trial.

 

[TurtleDude]

Re: Tench Coxe's Opinion of the Second Amendment

no, wrong again.

this right was created by the 6th Amendment. as well as the right to a speedy trial.

so the right to free counsel was available before gideon and the right to effective counsel existed before Strickland v Washington?

back to the second amendment

 

[Thunder]

Re: Tench Coxe's Opinion of the Second Amendment

so the right to free counsel was available before gideon and the right to effective counsel existed before Strickland v Washington?

no, the right to have an attorney present at a trial was created by the 6th Amendment. as was the right to a trial by your peers and a speedy one at that.

 

[Guy Incognito]

Re: Tench Coxe's Opinion of the Second Amendment

You're looking at the issue from a statist perspective... ie. holding the presumption that the law allows for broad action and it is up to the individual to conform.

This is a straw man. I'm looking at it from a historical perspective, not a statist persepctive.

I'm not a statist, I'm a right-wing libertarian. If I was applying my own values, it would be far from a statist interpretation. In fact, this is precisely why I advocate a Living Constitutional approach to jurisprudence, which allows me the freedom to apply my non-statist values to Constitutional interpretation.

But Living Constitution is not the issue at hand. We are discussing the opposite tack, the Original Intent.

Other, I think you are grossly distorting and/or misunderstanding my position. I advocate radical gun rights. I can safely say that I am far to the right of anybody else in this thread on the issue of gun rights.

I do this by way of the Living Constitution, which allows me to apply my ideology to the interpretation of law while retaining intellectual integrity. But I also am interested in getting at historical truth. If you want to play the Original Intent game, then I'm going to hold you to a historical standard, not an ideological one.

 

[other]

Re: Tench Coxe's Opinion of the Second Amendment

This is a straw man. I'm looking at it from a historical perspective, not a statist persepctive.

That's no strawman. You are extrapolating that a militia law that requires only that a man show up and provision himself with his own rifle also allows government officials the authority to take that man's weapon away from him, unless I can find a clause precluding such action.

That is not a perspective based on any historical interpretation. Look at what is written in the law.

I'm not a statist, I'm a right-wing libertarian. If I was applying my own values, it would be far from a statist interpretation. In fact, this is precisely why I advocate a Living Constitutional approach to jurisprudence, which allows me the freedom to apply my non-statist values to Constitutional interpretation.

First, I wasn't saying you were a statist, but that your interpretation of this act is.

Second, you don't need to take a living approach to interpreting the Constitution for such a view, it is a document that sets forth clear limited power for the federal government, and prevents it from anything else barring a specific amendment to the contrary.

If you are truly a "right-wing libertarian," you would advocate a more originalist approach, as the "living" approach only serves to further empower those who would increase the federal government's jurisdiction. You are holding a contrary view.

But Living Constitution is not the issue at hand. We are discussing the opposite tack, the Original Intent.

Yes, and you are coming up with intent out of thin air, not out of the actual law. At least you're willing to admit you aren't an originalist.

Other, I think you are grossly distorting and/or misunderstanding my position. I advocate radical gun rights. I can safely say that I am far to the right of anybody else in this thread on the issue of gun rights.

Your personal position on gun rights is irrelevant to this discussion, and I never brought the issue up at all. I am discussing your interpretation and use of Coxe and the 1792 Militia Act with regard to the 2nd Amendment, which is entirely speculative and not based in the actual sources we are discussing. You are divining powers for the government and poking loopholes in the 2nd amendment that do not exist in Coxe and cannot reasonably be inferred from the act.

by way of the Living Constitution. But I also am interested in getting at historical truth. If you want to play the Original Intent game, then I'm going to hold you to a historical standard, not an ideological one.

I don't care what standard you're using, I haven't altered my stance or chosen a different standard. I have been looking at the original intent since the beginning of this discussion. That's the whole point of discussing the original primary sources.


Getting back to what we were discussing, how do you address this:

[...] The militia act did not allow for weapons to be redistributed or divvied up, it simply required that each man provide for himself. That is what is written.

The 1792 act requires that a man show up at a specific place and time and bring his weapon.

from this, you cannot reasonably infer that the act also allows for any man to be deprived of his weapon by the state or any other authority, barring infractions (punishments for which, according to the law, still don't allow for confiscation, but a fine or court martial).

Requiring a man to show up with a gun for militia duty does not also necessitate that that man's superiors have authority to take that weapon away from him. Such action is not necessary, it is in fact contrary, for him to fufill his duty within the bounds of the law.

 

[other]

Re: Tench Coxe's Opinion of the Second Amendment

no, the right to have an attorney present at a trial was created by the 6th Amendment. as was the right to a trial by your peers and a speedy one at that.

If you believe the founding fathers were in the business of creating rights, you have no basis from which to understand the Bill of Rights. They were thinkers in the enlightenment tradition, who believed in the natural rights of man, not rights granted by a government or comittee.

If their rights were "created" by the bill of rights, as you say, then what was the basis for the offenses they perceived against George III in the Declaration of Independence -- If they subscribed to your view, then they would've had no grievance to air against George III, as they would have to accept that the only rights they had were that he granted them. Obviously, they did not accept that, their actual view is easily discerned by reading what they wrote regarding rights in the constitution and the federalist papers.

 

[Thunder]

Re: Tench Coxe's Opinion of the Second Amendment

If you believe the founding fathers were in the business of creating rights, you have no basis from which to understand the Bill of Rights.

the right to a trial by jury, is NOT a "natural right".

the right to a speedy trial, is NOT a "natural right".

the right to an attorney experienced and educated in the laws of the State, is NOT a "natural right".

and yet, these are all rights afforded to the people of the USA in the Bill of Rights. They are not "natural rights", that were simply recognized by Jefferson, Adams, Hamilton, Washington, Franklin, etc..

 

[American]

Re: Tench Coxe's Opinion of the Second Amendment

You're looking at the issue from a statist perspective... ie. holding the presumption that the law allows for broad action and it is up to the individual to conform. It works the other way. The act lays out the specific requirements and terms of service, necessary for the militia to be effective. Additional burdens require that additional laws or addendums be passed to have any effect. The law itself does not require or allow, anywhere, for commanders to require some men to bring additional weapons, for instance.



No, I've got what you're saying. It doesn't hold water. The militia act did not allow for weapons to be redistributed or divvied up, it simply required that each man provide for himself. That is what is written.




As I mentioned at the beginning of this post. I don't have to show that it is precluded, you have to show that it is allowed. And in the case of a militia, it isn't even sensible that anyone would be deprived of their personal weapon -- they would need it to fight. It would not be stored in a depot, it would be kept close and maintained to fufill the militia's mission, then they would go home.

I wish I knew where these people get their notions. Only a fool would have lived without a weapon in the colonial times. What man, what citizen would show up for militia duty without a weapon?

 

[Thunder]

Re: Tench Coxe's Opinion of the Second Amendment

Only a fool would have lived without a weapon in the colonial times.

or someone who chose to rely upon the local authorities and/or their armed neighbors, for protection.

does that make someone a fool? certainly not.

 

[other]

Re: Tench Coxe's Opinion of the Second Amendment

the right to a trial by jury, is NOT a "natural right".

the right to a speedy trial, is NOT a "natural right".

the right to an attorney experienced and educated in the laws of the State, is NOT a "natural right".

and yet, these are all rights afforded to the people of the USA in the Bill of Rights. They are not "natural rights", that were simply recognized by Jefferson, Adams, Hamilton, Washington, Franklin, etc..

they included such language in the Bill of Rights -- part of the constitution, the contract which spelled out the peoples' relationship to their government -- to preclude the federal government from taking away their right to all those things. Please look at the matter from the context of the entire document and its proper function, it will make much more sense to you.

 

[other]

Re: Tench Coxe's Opinion of the Second Amendment

I wish I knew where these people get their notions. Only a fool would have lived without a weapon in the colonial times. What man, what citizen would show up for militia duty without a weapon?

Its unbelievable.

I mean, Alexander Hamilton was killed in a duel with the Vice president of the United States ! After his son was killed on the same spot a year earlier... all within the bounds of the law at the time

I just don't get it either... What could they have said to spell it out any clearer than they did?

 

[TurtleDude]

Re: Tench Coxe's Opinion of the Second Amendment

This is a straw man. I'm looking at it from a historical perspective, not a statist persepctive.

I'm not a statist, I'm a right-wing libertarian. If I was applying my own values, it would be far from a statist interpretation. In fact, this is precisely why I advocate a Living Constitutional approach to jurisprudence, which allows me the freedom to apply my non-statist values to Constitutional interpretation.

But Living Constitution is not the issue at hand. We are discussing the opposite tack, the Original Intent.

Other, I think you are grossly distorting and/or misunderstanding my position. I advocate radical gun rights. I can safely say that I am far to the right of anybody else in this thread on the issue of gun rights.

I do this by way of the Living Constitution, which allows me to apply my ideology to the interpretation of law while retaining intellectual integrity. But I also am interested in getting at historical truth. If you want to play the Original Intent game, then I'm going to hold you to a historical standard, not an ideological one.

You aren't a right wing libertarian guy. You are a contrarian. If you truly were a right wing libertarian you would assume that most freedom possible in a choice of interpretations. Your evidence of a statist intention in the second is pathetic and there is a paucity of credible evidence. Its not like your proof is overwhelming-indeed it is almost non-existent. Thus your claims are without merit

secondly, your comments on the economic forum which float between welfare-socialism and populist envy are not consistent with a right wing libertarian perspective. You support government intervention and coercion to punish the wealthy which is anathema to the rightwing libertarian viewpoints.

 

[TurtleDude]

Re: Tench Coxe's Opinion of the Second Amendment

or someone who chose to rely upon the local authorities and/or their armed neighbors, for protection.

does that make someone a fool? certainly not.

Are you afraid to own a weapon?

 

[other]

Re: Tench Coxe's Opinion of the Second Amendment

or someone who chose to rely upon the local authorities and/or their armed neighbors, for protection.

does that make someone a fool? certainly not.

The act we've been discussing in this thread required that individuals called for militia duty provision themselves with their own firearms. Every adult male eligible for the militia duty was expected to own a firearm, if he didn't and was called to duty, he would be fined.

Btw, who do you think were the "local authorities" back then? They didn't have organized police forces for protection like today.