Why don’t we have a “terrible implement of the soldier” test? That would actually be in line with the intention of the Second Amendment.
September 19, 2017
Comment to Article on Heller’s “firearms in common use” test
[Hoxw is making reference to:
“The power of the sword, say the minority…, 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. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress has no power to disarm the militia. Their swords and every terrible implement of the soldier are the birthright of Americans.”
Pennsylvania Gazette, Feb. 20, 1788.
It’s a good question and a good point.—Joe]
That test has already been applied in earlier precedent; the Miller decision states it explicitly. The Miller decision had the wrong outcome, but that’s the fault of the malpracticing attorneys involved more than of the court.
I’m still waiting for letters of marque to be revived, and here you are, apparently complaining that you can’t fire your (perfectly legal) howitzer from your own backyard.
what, you think that letters of marque and reprisal cannot be legally issued? nor, declaration of war not declared? nor execution be authorized upon appropriate legal process? nor entry into your home and papers by force declared? nor seizure of your person and property by force, exercised, upon color of law?
all of those things are done in this world, or have been done.
what do you think prevents their occurrence in this country? who stands between you and the over-weaning magistrate? think about it, if you are capable.
much the same is said, repeatedly, in “the federalist papers,” a collection of pamphlets authored by jay, hamilton and madison in support of the adoption of the constitution.
the federalist papers are considered, by law, as part of the organic documents, to include the declaration of independence and the constitution, which are the foundation of the political system which governs this country.
if you have not read them, thoroughly, you are remiss.
p.s. a wonderful post.
Interesting. I knew people like to reference the Federalist Papers, but I didn’t realize they had any status in law. That seems very odd, given that they are partisan propaganda pieces. And especially given their loose relation to reality. I like to mention Federalist #41, the section that argues that the power of taxation is limited by Article 1 Section 8, as a perfect example of this lack of reality.
I read the Federalist Papers several times; the first was when I was preparing for my naturalization (much to the amusement of the Immigration Service interviewer who saw me with the book in the waiting area). I’ve also read Madison’s notes on the Convention, which is much longer and quite dull much of the time, but there are a bunch of valuable bits in it. One that’s extremely revealing is Hamilton’s proposal to the Convention, which was quietly ignored by the others — but in fact is pretty much what we ended up with, de facto though not de jure.
They don’t. But they are sometimes referenced as justification for judicial decisions. Whether and how much to use them in interpreting constitutional questions is, of course, debated.
That certainly makes sense. After all, as Prof. Barnett explained, the correct way to interpret any law or contract is according to the plain meaning of the words to the people who approved it. To know that, reading what was written about it at the time of ratification is the right thing to do. That doesn’t mean merely the Federalist Papers, of course; it also means reading what others wrote, in particular those who opposed the proposed Constitution. And it means reading the minutes of the various state ratifying conventions as well.
Pauline Maier (in “Ratification”) describes all this in great detail, it’s a wonderful book.