Electronic Bookshelf/Electronic Bookshelf.iso/govern/bear_arm/rtkba.txt

Text File | 1992-04-23 | 32KB | 666 lines

Jun 15 10:15 EDT 1991

With a discussion with Don Kates added 2/22/92 by John Grossbohlin

There are two things going on here: the history of the 2nd
Amendment shows that the explicit wording  concerning "militia" in
the first part is an "add-on" that merely compliments the RKBA
portion. The 2nd Amendment actually codifies common law practice of
keeping and bearing arms for the purpose of BOTH common defense and
self-defense.

Indeed, some Court decisions DO recognize that handguns are
implicitly arms that are protected:

(1) State v. Kessler, 289 Or. 359, 614 P.2nd 94, at 95, at 98
(1980).

"We are not unmindful that there is current controversy over the
wisdom of a right to bear arms, and that the original motivations
for such a provision might not seem compelling if debated as a new
issue. Our task, however, in construing a constitutional provision
is to respect the principles given the status of constitutional
guarantees and limitations by the drafters; it is not to abandon
these principles when this fits the needs of the moment."

"Therefore, the term 'arms' as used by the drafters of the
constitution probably was intended to include those weapons used by
settlers for both personal and military defense. The term 'arms'
was not limited to firearms, but included several handcarried
weapons used for defense."

(2) State v. Kerner, 181 N.C. 574, 107 S.E. 222, at 224 (1921).

"We are of the opinion, however, that 'pistol' ex vi termini is
properly included within the word 'arms,' and that the right to
bear such arms cannot be infringed. The historical use of pistols
as 'arms' of offense and defense is beyond controversy."

"The maintenance of the right to bear arms is a most essential one
to every free people and should not be whittled down by technical
construction."

(3) State v. Rosenthal, 75 VT. 295, 55 A. 610, at 611 (1903).

"The people of the state have a right to bear arms for the defense
of themselves and the state. *** The result is that Ordinance No.
10, so far as it relates to the carrying of a pistol, is
inconsistent with and repugnant to the Constitution and the law of
the state, and it is therefore to that extent, void."

Indeed, the "War Department" distributed a manual during WWII that
recommended to citizens that they keep "weapons which a guerilla in
civilian clothes can carry without attracting attention. They must
be easily portable and easily concealed. First among these is the
pistol." (Bert Levy, Guerilla Warfare (New York: Penguin Books,
1942)), p. 55. Also, the US government supplied the single-shot .45
Liberator pistol to anti-Nazi partisans (cost: $1.75) for the
explicit purpose of killing soldiers to obtain their gear.

-------------------------------------------------------------------
This article appeared in the November 1984 American Rifleman.
Mr. Halbrook is author of "That Every Man Be Armed: The Evolution
of a Constitutional Right," that is based on previously unknown
material. Holding a Ph.D., J.D., his book is the most comprehensive
work to ever appear on the Second Amendment.
-------------------------------------------------------------------

    To Bear Arms for Self-Defense: our Second Amendment Heritage

                      By Stephen P. Halbrook

More than any other freedom guaranteed in the Bill of Rights, the
Second Amendment "right of the people to keep and bear arms" has
been subjected by its enemies to Orwellian Newspeak. In George
Orwell's prophetic 1984, Big Brother was not content merely with
prohibiting possession of firearms by any of his subjects.
Totalitarian rule also required that words be rendered meaningless
so that subversive thoughts could be suppressed. Today, anti-gun
advocates claim that "the people" means the National Guard only,
that to "bear" does not mean carry, and that pistols are not
"arms."

The emasculation of the Second Amendment through such linguistic
manipulation is being attempted by various groups. The National
Coalition to Ban Handguns (NCBH) has been prominent in supporting
the handgun ban in Morton Grove, Illinois. Plaintiff's lawyers who
claim handguns have no social utility are suing gun manufacturers
whenever a gun is used in crime. Yet the most startling source of
this Orwellian Newspeak is Don B. Kates, Jr., author of numerous
pro-gun articles. Kates recently has taken to arguing that the
Second Amendment "right of *the people* to ... bear arms" serves
"to guarantee the right to carry them outside the home only in the
course of military service." (Ref. 1)

Before Professor Kates filed his brief asking the U.S. Supreme
Court to overturn Morton Grove's handgun ban (the NRA filed a
separate brief), this author and other scholars advised him that
there was considerable evidence that the Founding Fathers intended
the words "bear arms" to mean carry them in general, not
necessarily in a militia context. (Ref. 2) Kates, however,
respectfully declined to change his argument that the right to keep
arms is restricted to military service. (Ref. 3)

Ironically, Kates' argument was identical to that of Handgun
Control, Inc. (HCI), which asked the Supreme Court *not* to hear
the Morton Grove case. Although the real issue in Morton Grove is
whether the Second Amendment protects the right to "keep" arms
rather than to bear them, as HCI argued: "The language of the
second amendment suggests that its purpose is limited to protecting
organized and effective state militias. The terms 'arms' and 'bear
arms' have always been  associated with organized military
activity." (Ref. 4) The chief authority HCI cited for this
proposition is Noah Webster's famous 1828 dictionary.

Anyone who looks up Webster's definition of "bear," as referenced
in HCI's brief, will be startled to find the very opposite of what
HCI claimed: "to wear; to bear as a mark of authority or
distinction; as, to *bear* a sword, a badge, a name; to *bear* arms
in a coat." (Ref. 5) HCI also refers to the definition of "arms,"
which again fails to support its claim: "weapons of offense, or
armor for defense and protection of the body." (Ref. 6)

Consistent with the meaning of "bear arms" as carrying or wearing
weapons on the person or inside one's clothing, Webster defines
"pistol" as "a small fire-arm, or the smallest fire-arm
used....Small pistols are carried in the pocket." (Ref. 7) As to
who has the right to bear arms, Webster defined "the people" as
"the commonalty, as distinct of men of rank." (Ref. 8)

Webster was certainly in a position to know what the Second
Amendment phrase "bear arms" meant. He was a prominent federalist
who wrote the first major pamphlet in support of the Constitution
when it was proposed in 1787. Indeed, Webster states: "Before a
standing army can rule, the people must be disarmed; as they are in
almost every Kingdom of Europe. The supreme power in America cannot
enforce unjust laws by the sword; because the whole body of the
people are armed...." (Ref. 9)

When the Morton Grove case was still before the federal Court of
Appeals, unassailable evidence was presented that the respective
framers of the Second and Fourteenth Amendments intended that the
individual right to keep arms, including pistols, was protected
from infringement by the federal, state and local governments.The
clear intent of the framers, however, was disregarded by the Court.
In its opinion upholding the Morton Grove gun ban, the Court of
Appeals held the framers' intent to be "irrelevant." (Ref. 10) By
contrast, the U.S. Supreme Court has declared again and again that
the Constitution's provisions must be interpreted according to the
intent of the framers. (Ref. 11)

Did the Framers intend the Second Amendment to protect a right to
carry guns for self-protection? Texas A&M Professor Lawrence Cress
thinks not. His mistaken belief that "we know little about the
Second Amendment's reception in the States" has led him to argue
that the Founding Fathers would have been shocked by the idea that
citizens could bear firearms for self-defense. (Ref. 12) Kates
bases his similar argument that there is no right to bear arms
outside of militia service on an unpublished  thesis of a law
student. Yet Cress, Kates, et al are well aware (Ref. 13) that the
first state Declaration of Rights to use the term "bear arms" was
that of Pennsylvania in 1776: "That the people have a right to bear
arm *in defense of themselves* and the State." (Ref. 14)

-------------------------------------------------------------------
Italian philosopher Beccaria influenced Founding Father John
Adams as he did Thomas Jefferson. Adams gave his copy of the 1775
English translation of the Beccaria essay *On Crimes and
Punishments* to his son Thomas B. Adams in 1800. (Photo)

Discovered by this author, this manuscript shows Jefferson copied
portions of Beccaria's essay in Italian. (Photo)

                        Translation

False is the idea of utility (False ideas of utility) that
sacrifices a thousand real advantages for one imaginary or trifling
inconvenience; that would take fire from men because it burns, and
water because one may drown in it; there has no remedy for evils,
except destruction. The laws that forbid the carrying of arms are
laws of such a nature. They disarm those only who are neither
inclined nor determined to commit crimes. Can it be supposed that
those who have the courage to violate the most sacred laws of
humanity, the most important of the code, will respect the less
important and arbitrary ones, which can be violated with ease and
impunity, and which, if strictly obeyed, would put an end to
personal liberty -- so dear to men, so dear to the enlightened
legislator -- and subject innocent persons to all the vexations
that the guilty alone ought to suffer? Such laws only make things
worse for the assaulted and better for the assailant; they serve
rather to encourage than to prevent homicides, for an unarmed man
may be attacked with greater confidence than an armed man. They
ought to designated as laws not preventative but fearful of crimes,
produced by the tumultuous impression of a few isolated facts, and
not by thoughtful consideration of the inconveniences and advantage
of a universal decree.

-------------------------------------------------------------------
It is remarkable that the above translation describes the
anti-gunners position even today. The more things change, the more
they remain the same! -- dw
-------------------------------------------------------------------

That to "bear" arms simply meant to carry them is clear in a game
bill drafted by Thomas Jefferson and proposed by James Madison
(draftsman of the Second Amendment) in the Virginia legislature.
That bill would have fined one who hunted deer out of season, and
if within a year "he should bear a gun out of his inclosed ground,
unless whilst performing military duty," he shall be in violation
of his recognizance. The game violator would have to go back to
court for "every such bearing of a gun" to be bound to his good
behavior. (Ref. 15)

To "bear" a gun thus meant to carry it about one's hands or one's
person, as for instance a deer hunter might do. "Bearing arms" is
not militia duty only, for the above addresses the "bearing of a
gun" by "any person" when *not* "performing military duty."
Further, while the game bill would have restricted the carrying of
scatterguns and other long guns for hunting, it would not have
prohibited carrying pistols for self-defense. At  that time, "one
species of fire-arms, the pistol, is never called a gun." (Ref. 16)

Previous game legislation had imposed a penalty of 20 lashes on a
violator's back (Ref. 17), so that the above was intended to make
the law more humane. Jefferson strongly relied on the penal reform
theories of Cesare Beccaria, whose *Essay on Crime and Punishments*
(1764) was partly responsible for the Eighth Amendment's
prohibition on cruel and unusual punishment. "In America of the
revolutionary period, the little book was more influential than any
other single book, its spirit incorporated in documents such as ...
the Bill of Rights." (Ref. 18) Beccaria's influence on the Second
Amendment only recently came to light.

Jefferson kept a Common Place Book where he copied his favorite
passages from legal writers, such as Beccaria, in the months before
drafting the Declaration of Independence. The Common Place Book
"may well be considered as the source-book and repertory of
Jefferson's ideas on government." (Ref. 19) Among the passages
Jefferson copied was Beccaria's denunciation of laws against the
bearing of arms. Beccaria undoubtedly had pistols in mind when he
referred to laws which forbid "di portar le armi" -- "the carrying
of arms" or, in the 1776 edition, "to wear arms." These laws made
things worse for crime victims and better for their assailants.
Since they punished victims rather than criminals, those laws were
relics of a barbaric past which progress would sweep away along
with the rack and screw.

The wisdom of Beccaria was a source of Jefferson's proposed
Virginia Constitution of 1776 which provided: "No freeman shall
ever be debarred the use of arms." (Ref. 20) The Italian
philosopher also influenced John Adams. Adams began his final
opening statement in the Boston Massacre trial in 1770 with a quote
from Beccaria, and in the course of his speech added that "the
inhabitants had a right to arm themselves at that time, for their
defence...." (Ref. 21) Adam's own views against disarming the
people were consistent with the following favorite passage from
Beccaria which he copied in his diary: "Every Act of Authority, of
one Man over another for which there is not an absolute Necessity,
is tyrannical." (Ref. 22) Elsewhere, Adams upheld the right of
"arms in the hands of citizens, to be used at individual
discretion,.... in private self-defense...." (Ref. 23)

Bearing arms for personal protection was an unquestioned rights in
the minds of the Founding Fathers, as the following passages
reveal.

Before the Revolution, James Iredell, who would be prominent in the
Constitution ratification struggle and later a Justice on the U.S.
Supreme Court, wrote his mother:

Be not afraid of the Pistols you have sent me. They may be
necessary Implements of self Defense tho' I dare say I shall never
have Occasion to use them .... It is a Satisfaction to have the
means of Security at hand if we are in no danger, as I never expect
to be. Confide in my prudence and self-regard for the proper use of
them, and you need have no Apprehension. (Ref. 24)

In 1775, North Carolina's delegation to the Continental Congress,
all of whose members would become prominent state or federal
leaders, resolved: "It is the Right of every *English* Subject to
be prepared with Weapons for his Defense." (Ref. 25) William Henry
Drayton, a prominent Revolutionary leader and Chief Justice of the
South Carolina Supreme Court, according to his son, "Always had
about his person, a dirk and a pair of pocket pistols; for defense
of his life..." (Ref. 26)

In Vermont, Ethan Allen and his friends "never walked out without
at least a case of pistols." (Ref. 27) Lodging with a Quaker on one
occasion, Ethan's brother Ira recalled:

We took our pistols out of our holsters and carried them in with
us. He looked at the pistols saying 'What doth thee do with these
things?' He was answered, 'Nothing amongst our friends,' but we
were Green Mountain Boys, and meant to protect our persons and
property...." (Ref. 28)

Just 10 days after James Madison proposed the Bill of Rights to
Congress in 1789, Tench Coxe wrote what became the Second Amendment
confirmed the people "in their right to keep and bear their private
arms." (Ref. 29) James Madison endorsed the widely published
article in which these words appear. (Ref. 30) In later years, Coxe
referred to muskets, rifles, and pistols as "arms," (Ref. 31) and
to "the right to own and keep and use arms and consequently of
*self-defense* and of the *public militia power* ..." (Ref. 32)
"His own firearms are the second and better right hand of every
freeman," held Coxe. (Ref. 33)

The Founding Fathers strongly endorsed the right to bear arms for
self-defense. They not only gave it written expression in the
Second Amendment, but also personally exercised this right by
possessing pistols and other firearms. No amounts of linguistic
manipulation will ever obscure the plain and simple recognition in
the Second Amendment of "the right of the people to keep and bear
arms."
-------------------------------------------------------------------
                                NOTES

1. D. Kates, Handgun Prohibition and the Original Meaning of the
   Second Amendment, 82 UNIV. MICH. L. REV. 204, 267 (1984),
   Reprinted by Second Amendment Foundation Monograph Series

2. This author had prepared the Brief of Amicus Curiae Illinois
   State Rifle Association in Quilici v. Village of Morton Grove,
   No. 82-1132, U.S. Court of Appeals, Seventh Circuit. This brief
   solely concerned the intent of the framers of the Second and
   Fourteenth Amendments.

3. Stengel v. Village of Morton Grove, Petition for Writ of
   Certioria,  U.S. Supreme Court, No. 82-1834, at 8-9.

4. Brief of Americus Curiae HCI, In Opposition to Certioria,
   Quilici v. Village of Morton Grove, No. 82-1822, at 8-9.

5. N. Webster, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE  (New
   York 1828) ("bear" -- definition 3)

6. Id. ("arms" -- definition 1).

7. Id. ("pistol").

8. Id. ("people" -- definition 3).

9. N. Webster, AN EXAMINATION OF THE LEADING PRINCIPLES OF THE
   FEDERAL CONSTITUTION 43 (Philadelphia 1787)

10. Quilici v. Village of Morton Grove, 695 F.2d 261, 270n.8 (7th
    Cir. 1982), cert. denied 104 S. Ct. 194 (1983)

11. E.g., Ex Parte Baine, 121 U.S. 1, 12 (1887); Mallory v. Hogan,
    378 U.S. 1, 5 (1964)

12. L. Cress, An Armed Community, 71 JOUR. OF AM. HY. 22, 38 (June
   1984).  Cress was clearly unaware of the comprehensive evidence
   to the contrary presented in S. Halbrook, To Keep And Bear
   Their Private Arms: The Adoption of the Second Amendment,
   1787-1791, 10 NO. KY. L. REV. 13-39      (1982)

13. L. Cress, supra note 12, at 29; D. Kates, supra note 1, at 244
    n.169.

14. As the law student conceded, with these words "the phrase of
    the Second Amendment -- 'the right to ... bear arms' appeared."
    J. Smith, The Constitutional Right to Keep And Bear Arms 58
    (Harvard Law School 1959). Smith's evidence elsewhere
    contradicts his argument. E.g., 12 Rich. 2, c.6 (1388) (no
    servant "shall from henceforth bear any buckler, sword, nor
    dagger, ... but in time of war"). Smith at 9. Since colonial
    militia service was required of males "capable of bearing
    arms," Smith (and Kates) illogically infer that the words "bear
    arms" only mean militia service. See Kates, supra note 1, at
    267.

15. Bill for Preservation of Deer (1785), 2 Jefferson, PAPERS
    443-44 (Boyd ed. 1951).

16. N. Webster, supra note 5 ("gun")

17. Act of 1772, 8 Hening, Statutes (Va.) 593.

18. A. Caso, AMERICA'S ITALIAN FOUNDING FATHERS 13 (1975).

19. G. Chinard ed., THE COMMONPLACE BOOK OF THOMAS JEFFERSON 4
    (1926).

20. 1 Jefferson, PAPERS at 344.

21. 3 J. Adams, LEGAL PAPERS 242, 248 (1965)

22. 3 J. Adams, DIARY AND AUTOBIOGRAPHY 194 (1961)

23. 3 J. Adams, A DEFENSE OF THE CONSTITUTIONS OF GOVERNMENT OF THE
    UNITED STATES OF AMERICA 475 (London 1787-88)

24. 1 THE PAPERS OF JAMES IREDELL 79 (1976)

25. Caswell, Hooper, and Hewes, To the Committees, North Carolina
    Gazatte (Newburn), July 7, 1775, at 2, col. 3.

26. 1 J. Drayton, MEMOIRS OF THE AMERICAN REVOLUTION 378
    (Charleston 1821).

27. Ira Allen, Autobiography (1799) in J. Wilbur, IRA ALLEN:
    FOUNDER OF VERMONT 44 (Boston, 1928).

28. Id. at 40.

29. "A Pennsylvanian," Remarks on the First Part of the Amendments,
    Federal Gazatte, June 18, 1789, at 2, col. 1.

30. 12 Madison, PAPERS 257 (1979).

31. Coxe, To the Public, Democratic Press (Philadelphia), Feb. 2.,
    1811, at 2.

32. "Sidney," To the Friends of the Principles of the Constitution,
     Democratic Press, Jan. 23, 1823, at 2, col. 2.

33. "Sherman," To the People of the United States, apparently
     published in the Democratic Press or the Philadelphia Sentinel in
     early 1823, PAPERS OF TENCH COXE (microfilm) (Philadelphia:
     Historical Society of Pennsylvania, 1977), Reel 113, at 716.

**********************************************************************
A discussion with Don Kates added by John Grossbohlin 2/22/92

For those who don't know, Stephen P. Halbrook is the top
Constitutional  authority at the NRA.  I discussed his comments
about Don Kates, Jr's.  position with Don Kates on the Prodigy
Computer network.  The more recent works by Kates do not agree with
what Halbrook stated and I was curious  about this...  As you will
find, things have changed!


         HOMELIFE
TOPIC:   OUTDOOR HOBBIES
TIME:    04/19  1:56 PM

TO:      DON KATES, JR.   (CJSV80A)
FROM:    JOHN GROSSBOHLIN   (JDJK54A)
SUBJECT: GUN - REALITIES WHY?

Don:

I understand that you did some legal work on the Morton
Grove gun ban case regarding the Constitutional issue of
private gun ownership. At the time you argued that
collective private gun ownership was protected under the
Constitution.  In later work I noticed that you argue
from the perspective of private gun ownership being an
individual's right.  Since you have probably done more
scholarly work on this issue than anyone, What key items
lead to your adopting the "individual's right" position?                                                         Thanks for your tip on _Point_Blank_, the book review is

       John - 04/19 01:04 am ET


         HOMELIFE
TOPIC:   OUTDOOR HOBBIES
TIME:    04/19  9:40 PM

TO:      JOHN GROSSBOHLIN   (JDJK54A)
FROM:    DON KATES, JR.   (CJSV80A)
SUBJECT: GUN - REALITIES WHY?

John:

You've lost me here. I have NEVER argued that gun ownership
is a "collective right." That position is conceptual gibberish,
at least as anti-gunners argue it in that it "means"
that the right to arms belongs to the people in the sense
(actually non-sense) of a right which no one can invoke
either in his own behalf or on behalf of all. That is not a
right at all and has no analogue to anything in our Bill of
Rights. There are, of course, collective rights in the Bill
of Rights. For instance, the right to assemble is,
obviously, a right that requires a multiplicity of people to
exercise it. The right not to be subject to government
discrimination because of race is another collective right in
that it protects each race that may be discriminated
against. But in each instance one individual is entitled to
maintain suit to invalidate either race discrimination or
denial of his (& others') right to assemble.

Distinguish the collective right gibberish from the idea
that the right to arms is a right of the states, not of the
people. That is perfectly legitimate CONCEPTUALLY, it just
isn't what the Bill of Rights was intended to accomplish.
The 2nd Amendment speaks of a "right of the PEOPLE to keep
and bear arms"-- a phrase used throughout the Bill of Rights
always meaning individuals. In contrast, when the Bill of
Rights means right of the states that is what it says -- and
specifically distinguishes the rights of the people from the
rights of the states (9th and 10th Amendments). See
my discussion of the in 82 MICHIGAN LAW REV. 204 ff. and Prof.
Amar's in 100 YALE L. J. at 1166 (The right "belongs to 'the
people' not 'the states.'").

                   Don


         HOMELIFE
TOPIC:   OUTDOOR HOBBIES
TIME:    04/20  5:43 PM

TO:      DON KATES, JR.   (CJSV80A)
FROM:    JOHN GROSSBOHLIN   (JDJK54A)
SUBJECT: GUN - REALITIES WHY?

Don:

Thank you for clarifying the "collective" versus
"individual" rights issue of the 2nd Amendment.  I recently
read an article that cites,  "To Bear Arms for Self-Defense:
our Second Amendment Heritage," by Stephen P. Halbrook,
(1984).  The article suggested you once supported the
"collective" position, particularly as regards bearing arms:
"...Yet the most startling source of this Orwellian
Newspeak is Don B. Kates, Jr., author of numerous pro-gun
articles. Kates recently has taken to arguing that the
Second Amendment 'right of *the people* to ... bear arms'
serves 'to guarantee the right to carry them outside the
home only in the course of military service.'

Before Professor Kates filed his brief asking the U.S.
Supreme Court to overturn Morton Grove's handgun ban (the
NRA filed a separate brief), this author and other scholars
advised him that there was considerable evidence that the
Founding Fathers intended the words 'bear arms' to mean
carry them in general, not necessarily in a militia context.
Kates, however, respectfully declined to change his argument
that the right to keep arms is restricted to military
service."

As most of the folks on this board will attest to, I attempt
to verify what I post and offer citations as part of my
normal posting habits.  The particular article I found the
above information in is floating around on the BBS's.  Since
the article was untitled and had no author listed (but did
have citations!), I was unable to verify the accuracy of
the text as to completeness.

Based on your reply here, you may have been taken out of
context or your position otherwise distorted.  Thanks for
clearing it up.  Does the above quote represent your
position on "bearing arms" (as opposed to the ownership
issue), or is this too a case of creative writing?

Thanks for posting the references also.

                    John - 04/20 01:54 am ET


         HOMELIFE
TOPIC:   OUTDOOR HOBBIES
TIME:    04/21  3:12 PM

TO:      JOHN GROSSBOHLIN   (JDJK54A)
FROM:    DON KATES, JR.   (CJSV80A)
SUBJECT: GUN - REALITIES WHY?

John:

Thanks for the explanation. It clears everything up. The
problem arose from your use of "collective right" as a synonym for
THE anti-2nd Amendment position whereas I assumed you had used it
to denominate a particular (and particularly absurd) anti-2nd
Amendment theory. Now understanding what you were actually
referring to, I answer as follows: my first article on the 2nd
Amendment is the one published in 82 MICHIGAN LAW REVIEW (1983).
At the time it (and my subsequent short piece in the
ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION) were written, I
believed that, though the 2nd Amendment gave law-abiding,
responsible adults a right to POSSESS arms, the word "bear" did
not mean "carry" in the general sense, but only carry in the
course of actual militia service. This was based on study of 17th
and 18th Century American statutes. Steve Halbrook is the NRA's
leading  expert on the Amendment and an outstanding scholar, though
I often disagree w/ him on what I would call his excessive
interpretation of the Amendment (while he dismisses my more
limited interpretations as "Orwellian Newspeak"). Steve showed
me 18th Century evidence that convinced me that I was wrong on my
limited interpretation of "bear." I have since repudiated it,
though I still insist that the right to "bear" arms was
always more subject to gov't. regulation than the right to own
under the Anglo-American common law which is the antecedent
referred to (and constitutionalized) by the 2nd Amendment ("the
right to keep and bear arms").  For a debate between Steve and me
about various limitations inherent in the 2nd Amendment, see 49
LAW AND CONTEMPORARY PROBLEMS # 1 (1986).

                                         Don


         HOMELIFE
TOPIC:   OUTDOOR HOBBIES
TIME:    04/21  7:55 PM

TO:      DON KATES, JR.   (CJSV80A)
FROM:    JOHN GROSSBOHLIN   (JDJK54A)
SUBJECT: GUN - REALITIES WHY?

Don:

Thank you for the valuable lesson... I should have
been more careful with the term "collective!"  As with any
body of research literature, you have to know what the
definitions are, or at least which definitions are being
used.  Your clarification of this item is much appreciated and
I will definitely get the articles you cited on Wednesday.

I look forward to reading the debate article... debates
are often most enlightening because of the fine distinctions
being made by both sides.

Thanks again, your time is appreciated.

               John - 04/21 04:33 pm ET

         HOMELIFE
TOPIC:   OUTDOOR HOBBIES
TIME:    04/21  7:55 PM

TO:      DON KATES, JR.   (CJSV80A)
FROM:    JOHN MARSHALL   (VFCM83A)
SUBJECT: GUN - REALITIES WHY?

Don,

I have been following your talk with John Grossbohlin with great
interest.  I'm curious: What 18th Century evidence did Steve
Halbrook show you which changed your mind as far as your
previous limited interpretation of "bear" in the Second was
concerned?   Any references would be greatly appreciated.
Thanks in advance.

Regards,  John Marshall


         HOMELIFE
TOPIC:   OUTDOOR HOBBIES
TIME:    04/22  4:21 PM

TO:      JOHN MARSHALL   (VFCM83A)
FROM:    DON KATES, JR.   (CJSV80A)
SUBJECT: GUN - REALITIES WHY?

John:

When the original Constitution was proposed, W/O A BILL OF
RIGHTS, it encountered strong opposition throughout the
country because it lacked a bill of rights. Among the pro-
tests was one from some of the Pennsylvania ratifying con-
vention members who called for a guarantee of the right of
individuals to keep and bear arms, inter alia in hunting.
Obviously, this use of "bear" is not consistent w/ the no-
tion of the right to bear being limited to militia service.
Steve Halbrook discusses this in his article in 49 LAW &
CONTEMPORARY PROBLEMS # 1 (1986) -- and doubtless in his
several books as well. My responsive article in LAW & CON-
TEMPORARY PROBLEMS concedes that he is right, based on this
evidence.

                     Don


******* END of comments by Don Kates ***********