Skip to comments.Judge Bork on the 2nd Amendment & Gun Control [Free Republic]
Posted on 03/12/2004 8:40:14 PM PST by tpaine
Judge Bork on the 2nd Amendment & Gun Control Constitution Opinion (Published)
Source: Slouching Towards Gomorrah
Published: 1996 Author: Robert Bork
Posted on 03/14/2000 15:45:37 PST by Publius
Gun control, though advanced with religious fervor and harrowing tales of loved one shot to death, is no less frivolous. The real argument against severe gun control is one of policy, not constitutionality.
As law professor Daniel Polsby demonstrates, "the conventional wisdom about guns and violence is mistaken. Guns don't increase national rates of crime and violence - but the continued proliferation of gun control laws almost certainly does." Gun control laws raise the cost of obtaining a firearm. This is a cost the criminal will willingly pay because a gun is essential to the business he is in. He probably will not have to pay the increased cost, because illicit markets adapt to overcome difficulties. There are, moreover, nearly 200,000,000 firearms in the United States now, many of them unregistered, and it is easy to smuggle guns in or to make them in basements and garages.
A gun need not be state of the art to serve a criminal's purpose. Criminals will never have difficulty getting guns. The citizen who wants a firearm for self-defense will not have access to illicit markets and will be deterred by the higher costs charged in legal transactions. The result is a steady supply of guns for criminal aggression and a diminished supply for self-defense.
"It is easy to count the bodies of those who have been killed or wounded with guns," Polsby remarks, "but not easy to count the people who have avoided harm because they had access to weapons. People who are armed make comparatively unattractive victims. A criminal might not know if any one civilian is armed, but if it becomes known that a large number of civilians do carry weapons, criminals will become warier." Gun control shifts the equation in favor of the criminal. Gun control proposals are nothing more than a modern liberal suggestion that government, which is unable to protect its citizens, make sure those citizens cannot defend themselves.
The Second Amendment states somewhat ambiguously:
"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 first part of the Amendment supports proponents of gun control by seeming to make the possession of firearms contingent upon being a member of a state-regulated militia. The next part is cited by opponents of gun control as a guarantee of the individual's right to possess such weapons, since he can always be called to militia service.
The Supreme Court has consistently ruled that there is no individual right to own a firearm.
The Second Amendment was designed to allow states to defend themselves against a possible tyrannical national government.
Now that the federal government has stealth bombers and nuclear weapons, it is hard to imagine what people would need to keep in the garage to serve that purpose.
A golden oldie from last year where it set off a very long debate. -Pubulis-
(Excerpt) Read more at freerepublic.com ...
B.S.! They didn't do so in Miller, and they didn't do so before then either. In fact, according to Kopel et. al they have ruled in favor of that right repeatedly, as part of larger arguments about other rights.
Oh my. This is tripe. Unless, of course, a person ceases to be a citizen by engaging in an illegal transaction (i.e., argument by definition of terms). I am a citizen, and I have access to every market that I care to engage. So does every other person on the planet.
Even in California.
That the following assertion is false: "The citizen who wants a firearm for self-defense will not have access to illicit markets"
"It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State."
Taney argue that "to keep and carry arms wherever they went" was a right of "citizens in any one State of the Union." They right to keep and carry (bear) arms was a right on the same level as "the full liberty of speech in public and private" and the right to travel between states without "pass or passport, ... or obstruction."
In 1856, the right to keep and bear arms was recognized as an individual liberty by the Supreme Court.
If that's not enough, Taney also opined, "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. "
Again, the right to individually keep and bear arms is listed as a fundamental liberty as the right to trial by a jury and the right to avoid self-incrimination. Can anything be so clear?
The Fourth Amendment was designed to allow citizens to defend themselves against unlawful searches and seizures. Now that the federal government has eavesdropping capabilities far beyond what the Founding Fathers could have imagined, it is hard to imagine why people would need to be protected by something as old fashioned as a requirement that the government fill out a search warrant before searching a citizen's house. -Judge Bork-
If that's Bork's idea of original intent doctrine maybe it's just as well he never made it to the USSC bench. Anyone who thinks the author's of the 2nd amendment intended it to guarantee a state-regulated militia's right to bear arms hasn't studied or understood the background of the amendment.
In 18th century parlance the phrase "well regulated" simply meant well trained. When asked who was the militia as mentioned in the 2nd amendment, Madison answered to the effect that it is the whole of the people, except for a few public officials. The term "people" in the 2nd was also used by the authors in several other amendments in which there is no doubt whatsoever about it's meaning. Why do judges and justices claim to believe it has an altogether different meaning in that one amendment? Personally I don't think they believe that, it's just a convenient way to attempt to justify their incorrect interpretation of an amendment they don't like.
When the Constitution was being written the Americans had just come through an eight year war of independence against the most powerful nation in the world. Without the privately owned arms of the early unorganized militia forces in New England the revolution might have been crushed at the onset before it gained enough momentum to be supported by the rest of the colonies. Also, throughout the war private arms made up an important part of the Continental Army's and Navy's arsenals. The authors knew that well enough, and that was the primary reason for the 2nd amendment, to insure that privately owned arms and the unorganized militia would always be available to provide a bulwark against tyranny, whether foreign or domestic. Anyone who honestly reviews the reasons for the 2nd amendment must come to the conclusion that it was intended to guarantee an individual right, and not a corporate right as so many now claim. Granted, it was intended to guarantee an armed militia, BUT we the people ARE that militia it was intended to guarantee.
I'm sure Bork knows what the author's intended, he just doesn't believe their intent was a good idea. IOW he doesn't believe the "common people" can be trusted to possess weapons, a belief typical of the elitists among us.
Bork's statements regarding the 2nd concern me, not because he will be on a court, but because I now wonder what the supposed conservatives on Bush's list of judicial appointees believe, or rather want to impose on us, concerning the amendment. Any candidate, conservative or liberal, who puts his own notions of what is best for us above the known intent of the authors on any issue shouldn't be given a seat on the court. The question is how many, if any, candidates for judiciary appointments currently in Bush's waiting room have the integrity to place the intent of the author's above their own personal prejudices and beliefs if elevated to the court. If we are to judge by Bork, considered to be a solid conservative constitutionalist, who it seems would be willing to subvert the intentions of the authors in order to avoid nullifying most of the nation's firearms laws, I'm afraid not many of Bush's appointees have that integrity either.
And that reinforces my belief that we can only prevail on the issue through the legislative branch and the political process, and that to depend on the judicial branch to uphold the RKBA will only lead to disappointment and eventual loss of the right completely. After all is said and done, the facts are that the judiciary at it's upper levels is composed mainly of elitists, and historically elitists have always been reluctant to allow commoners to be armed.
Judge Bork seems to share the delusion that people who are fighting a tyrannical government will have to face the US military.
Though that may be somewhat true, the enemy that the people will be focussed on will be elected, appointed, and employed officials of federal and state governments.
Our Founders responded to military attacks with militia force, but much patriot energy was aimed at bureaucrats who attempted to supply tax stamps, for example. Or who consorted with the occupying forces in Boston.
I am sure that modern-day patriots will be no less creative when forced to confront tyranny.
Not true. They basically haven't addressed the issue of wether the right is an individual one or not. The most recent case was back in 1939! It turned on the usefulness of the weapon in a militia/military context, and even on that question the ruling actually was that the lower court erred in assuming that the weapon did have such usefulness without hearing any argument or evidence to that effect, ie. they should not have taken "judicial notice". Of course in that case, no one argued before the Supreme Court except the government. Earlier cases turned on the applicability of the 2nd amendment to state governmental infringements of the RKBA.
Advanced anti aircraft weapons of course. A single Patriot missle would fit in most garages, although you'd need someone in your militia unit with a barn to hold the fire control equipment. Which would likely work OK from inside the barn, provided the barn and it's roof were not metal.
The Second Amendment arose out of concern about the Article 1, Section 8, Clause 15 powers of the federal government over the state militias, and coincidentally it's powers under Clauses 12 and 14.
A historically accurate criticism of Judge Bork's remarks (that makes your point IMO) would be that he seems in this extract to ignore how the amendment protects the state militias- by reserving from the federal government an individual right to bear arms rather than a state's right to arm it's militia. Of course the actual language of the amendment does not limit it to just protecting the state's powers over their militia. It accomplished that intent by enumerating and reserving a right of the people from the federal government.
The Virginia Ratification Convention, SATURDAY, June 14, 1788 (continued on June 16th) debate over the proposed Article powers of the new government by Madison, Marshall, Mason and Henry shows the concerns that led to the Second Amendment.
Many of the Anti-federalist's arguments could be answered but not the general suspicion that a standing federal army would, by hook or by crook, supercede the militias.
George Mason's words are, of course, most instructive.
"Mr Mason: "There are various ways of destroying the militia. A standing army may be perpetually established in their stead. I abominate and detest the idea of a government, where there is a standing army. The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless by disarming them.
Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them, &c. Here is a line of division drawn between them the state and general governments. The power over the militia is divided between them. The national government has an exclusive right to provide for arming, organizing, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States. The state governments have the power of appointing the officers, and of training the militia, according to the discipline prescribed by Congress, if they should think proper to prescribe any. Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army...
An instance within the memory of some of this house will show us how our militia may be destroyed. Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia.
[Here Mr. Mason quoted sundry passages to this effect.] This was a most iniquitous project. Why should we not provide against the danger of having our militia, our real and natural strength, destroyed?
The general government ought, at the same time, to have some such power. But we need not give them power to abolish our militia.
If they neglect to arm them, and prescribe proper discipline, they will be of no use. I am not acquainted with the military profession. I beg to be excused for any errors I may commit with respect to it. But I stand on the general principles of freedom, whereon I dare to meet any one.
I wish that, in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the state governments might arm and discipline them. With this single exception, I would agree to this part, as I am conscious the government ought to have the power. "
"When asked who was the militia as mentioned in the 2nd amendment, Madison answered to the effect that it is the whole of the people, except for a few public officials. "
The quote is by George Mason in the debate on June 16th:
"Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people.
If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government, all ranks of people are subject to militia duty. Under such a full and equal representation as ours, there can be no ignominious punishment inflicted. But under this national, or rather consolidated government, the case will be different."
Think about this, the Council on Foreign Relations already has at least three members on the USSC. All they need is two more and a RAT President to forever surrender our sovereignty to the UN.
Well you know how letigious things are these days. And with all that Fresno $$ buring a hole in Jim's pocket, what better than to have FR sue FR? It makes as much sense as anything else these days ;)
"Roses are red, voilets are blue, I am schitzo, and so am I"
The debate record that you posted indicates that Mason was concerned that the federal government would not continue to provide funds to arm the state militias, and thereby assure the supremacy of a national standing army which Mason adamantly opposed. The remedy for his concern was provided by the 2nd amendment's guarantee that individual members of the various state's militias would not be deprived of their private arms. As shown by the example of the irregular militia which engaged the British force at Concord, it was common practice of that time for militiamen to be called to duty with their own arms and accoutrements. Apparently Mason's concern was for securing a right to arms for the organized state militias, but it is clear from the language of the 2nd amendment that Mason's concern was effectively answered by the amendment's securing of that right for the militia members themselves.
As noted by Chief Justice Rehnquist in his comments on an urelated case, the term "people" appears in several other amendments, and in every instance refers to the whole body of individual people, not to state governments. If the authors intended to secure a corporate right to arms for the states, why would they choose to use that term rather than the term "state(s)" as used elsewhere in the document? The only logical conclusion is that the amendment is intended to secure for individual militia members a right to possess the private arms they were normally expected to furnish for their use when called to service. That conclusion was the reason for emphasizing in my original post that although the amendment is intended to guarantee arms to the state militias, according to Mason we, i.e., the individuals who taken together comprise the "people" of the amendment, are ourselves the militia. Interpreted in that manner the amendment in effect achieves Mason's goal of securing the right to arms for the militia by securing that right for the individuals who make up the militia
If you want to argue that the amendment is not intended to protect an individual right your argument is not with me, an unlearned constitutional law ignoramus, it is with the large number of Constitutional scholars who have written and spoken out in support of an individual right interpretation.
I am adding a timeline of events relating to the 2nd amendment compiled by Professor Eugene Volokh of the UCLA School of Law. Bold emphasis is mine.
1765: Sir William Blackstone, a powerful influence on the Framers' thinking, publishes his famous ``Commentaries on the Laws of England.'' He describes the British right to bear arms, a predecessor to the Second Amendment, as one of ``the rights of the subject'' -- in other words, an individual right.
1776: Pennsylvania enacts the first state bill of rights, which protects the right to bear arms gun-ownership right from being abridged by the state. This provision and similar ones in other early state constitutions are evidence that the right to own guns was aimed at constraining state governments rather than empowering them to form militias.
1788: New York, North Carolina and Virginia demand that Congress secure the right to bear arms, and they define ``militia'' as the citizenry at large. Rhode Island makes a similar demand in 1790.
1791: The U.S. Bill of Rights is enacted, including the Second Amendment: ``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 phrase ``the right of the people'' is also used in the First and Fourth amendments, which secure individual rights to petition the government and to be free of unreasonable searches and seizures.
1792: Passage of the federal Militia Act, which defines ``militia'' as all able-bodied white male citizens ages 18 to 45 -- not as a small National Guard-like group. Constitutional amendments passed after the Civil War eliminate the racial restriction.
1803: St. George Tucker, the first prominent American legal commentator, publishes his edition of Blackstone's Commentaries, applying them to U.S. constitutional law. He says the Second Amendment prevents the government from disarming the citizenry.
1833: U.S. Supreme Court Justice Joseph Story, the leading American constitutional commentator of the early 1800s, in his ``Commentaries on the Constitution of the United States,'' describes the Second Amendment right to bear arms as belonging to ``the citizens,'' and echoes Tucker's view.
1866: Congress enacts the Freedmen's Bureau Act. Part of it aims to protect the ``constitutional right to bear arms'' for black people, alongside their rights to ``personal liberty'' and to owning property.
1880: Michigan Supreme Court Justice Thomas Cooley, the leading American constitutional scholar of the 19th century, stresses in his ``General Principles of Constitutional Law'' that the right to own guns belongs to all the people, not just a small subgroup.
1934: The National Firearms Act -- the first major federal gun-control law -- is enacted. It is mostly aimed at weapons associated with organized crime, such as machine guns and sawed-off shotguns.
1939: The U.S. Supreme Court, in United States vs. Miller, says the Second Amendment protects only those arms that have ``some reasonable relationship to the preservation or efficiency of a well-regulated militia.'' But the court also stresses that ``militia'' means ``all males physically capable of acting in concert for the common defense.'' The court does not say that the right belongs to the states or the National Guard. It is the court's only modern Second Amendment decision. (From 1820 to 1998, the court has referred to the Second Amendment 28 times, usually tangentially. Twenty-two of the 28 opinions quote only the right-to-bear-arms clause, without mentioning the militia language.)
1942: Two lower federal court decisions treat the Second Amendment as securing a states' right, beginning a trend that continues to this day.
1956: The current Militia Act is passed, defining ``militia'' as all male citizens age 17 to 45. (Given recent constitutional decisions, today this probably includes women, too.)
1960: Sens. John F. Kennedy and Hubert Humphrey express support for the ``right of each citizen'' to bear arms. Their views illustrate that even as lower federal courts adopted a states-right view of the Second Amendment, many politicians and average citizens continued to view the right as an individual one.
1968: The Gun Control Act of 1968 is enacted. It requires professional gun dealers to get licenses, bans felons from possessing guns and sets up a variety of other gun controls. This marks the start of a 30-year period in which Congress enacts a string of gun-control laws.
1986: The bipartisan Firearms Owners' Protection Act is enacted. It specifically asserts that the right to bear arms is an individual right.
2000: Liberal legal scholar Laurence Tribe of Harvard Law School concludes, in his widely respected Constitutional Law treatise, that the Second Amendment secures a individual right to own guns. His position is in line with many other recent legal writers, conservative and liberal alike.
2001: In United States vs. Emerson, the 5th U.S. Circuit Court of Appeals rules that ``the Second Amendment does protect individual rights,'' but allows ``limited, narrowly tailored specific exceptions or restrictions.'' This is the first time a federal court of appeals adopts the individual-rights view. Emerson was accused of possessing a firearm while under a domestic restraining order.
2002: The Department of Justice adopts the individual-rights view in two filings to the Supreme Court, one on the Emerson case and another on a case involving a ban on unlicensed machine gun possession.
Yes, I believe that is pretty much what I said:
"A historically accurate criticism of Judge Bork's remarks (that makes your point IMO) would be that he seems in this extract to ignore how the amendment protects the state militias- by reserving from the federal government an individual right to bear arms rather than a state's right to arm it's militia. Of course the actual language of the amendment does not limit it to just protecting the state's powers over their militia. It accomplished that intent by enumerating and reserving a right of the people from the federal government. "
The purpose of the second was to protect the state militias.
That purpose was accomplished by reserving an individual right from the federal government.
As far back as the Dredd Scott decision, it was clear that the Supreme Court considered the right to bear arms to be an individual right.
Dred Scott seem to imply that there was a strong relationship between the rights of a citizen and the right to arms.
There had been a long series of federal cases whereby slaves had sued in federal court based on errors made in the attempts to kidnap them and deny them the rights of citizens. Taney sought to end that, by innovating a denial of all rights to any person of African extraction.
Just as they used the tax power to levy a tax on Cannibis, and didn’t print the tax stamps, so that any Cannibis can not have the tax paid, making the market for cannibis illicit.
Legal pot dispensaries in CA were driven out of business by the IRS, because none of their business expenses were permitted to be deducted.
Perhaps someday we can look at Chief Justice Roberts as having identified a key weakness in our constitution that needs to be corrected by amendment:
“The taxing power of the US is limited to funding constitutional powers enumerated in Article 1.”
That would perhaps end the ability to enact an unconstitutional welfare system like social security, medicare, medicaid, Obamacare, under the fig leaf of a tax system, with the payments merely an optional carrot to encourage voluntary tax payment.