Posted on 07/16/2004 8:59:00 AM PDT by neverdem
The first in a series of articles on the importance of the upcoming general election
Does the Second Amendment guarantee a right to states rather than an individual right to choose to own firearms? One clue to the answer is looking at who supports each position. The few law-review articles supporting the states'-right view all come from advocates, most of them employed by or associated with anti-gun groups.
The Verdict of Scholarship Yet, intellectual honesty compels many far more important scholars to accept the standard model of the Amendment as an individual's right despite personal anti-gun feelings. Famed constitutional lawyer and Harvard law professor Alan Dershowitz, who defended O.J. Simpson and Claus von Bulow, is a former ACLU national board member who admits he "hates" guns and wants the Second Amendment repealed. Yet, says Dershowitz: "Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a safety hazard don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like."
Another former ACLU national board member, Duke Law School's William Van Alstyne, who is among the premier constitutional scholars of modern times, contemptuously dismisses the states'-right view. "If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the 18th century for no known writing surviving from the period between 1787 and 1791 states such a thesis." He emphasizes that to take civil liberties seriously requires respecting the Second Amendment no less than freedom of speech and religion and the other rights in the First Amendment. [Van Alstyne, "The Second Amendment and the Personal Right to Arms," 43 Duke Law Journal 1236 (1994).]
Another major figure in modern constitutional law is Harvard law professor Lawrence Tribe who is anti-gun and a liberal. Earlier versions of his famous text endorsed the states'-right view, but, having examined the historical evidence for himself, he now reluctantly admits the Amendment guarantees "a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes." [Tribe, American Constitutional Law, Vol. 1, pp. 901-902 (2000)].
RIGHT OF THE PEOPLE Anti-gun writers cite my article (83 Michigan Law Review, pp. 204-273) as the definitive standard-model treatment. Yet, remarkably, these anti-gun writers give only that one initial mention. If they have answers to the 50 pages of evidence I offer for the standard model, they neglect to offer them. So I shall limit myself to just two examples of my unrefuted evidence.
Written by James Madison, the Bill of Rights was enacted as a single document. Whenever it says "right of the people," it does so to describe individual rights. To ignore this point you must think that in the First Amendment Madison used "right of the people" to describe an individual right. But then, 16 words later, he used it in the Second Amendment meaning a state's right. But then, 46 words later, the Fourth Amendment says "right of the people" meaning an individual right again. And then "right of the people" was used in the Ninth Amendment to mean--guess what--a right of the people.
In fact, throughout the Bill of Rights and the Constitution the word "right" is always used to refer to something individuals have and never used to refer to powers possessed by government. Such powers are always called "power" or "authority."
THE PURPOSE OF THE MILITIA Anti-gun advocates imply from the Amendment's reference to a "well-regulated militia" that government can regulate gun ownership. But that is totally outside the 18th century usage of "well regulated," which means "well trained" and "operating properly." Likewise, anti-gun advocates think the mention of militia show the right to arms applies only to states arming their militias. But in the 18th century "militia" did not mean "army" or "soldiers." The militia was a system of laws under which every man and every household was to have guns (unorganized militia), while most men of military age were required to appear with their guns when called out for drill or war (organized militia). The arms of the militia were the personally owned arms of its members.
It is somewhat misleading, however, to see the Second Amendment as a right to have arms for collective defense against tyranny or foreign enemies. The Amendment's central theme was what our Founding Fathers saw as the basic human right to possess arms for individual self-defense. But the Founders did not misconstrue that, as we so often do, as just a right to defense against nonpolitical criminals. The Founders believed individuals needed to be armed for political self-defense (e.g., Jews resisting the Gestapo) and that, in the ultimate extreme, people must join together to overthrow tyranny. (Note that the literal meaning of the term "revolution" was an uprising seeking to bring government back to its original free form, not to produce some new form.) [Kates, "The Second Amendment and the Ideology of Self-Protection," 9 Constitutional Commentary 87 (1992).]
WHAT LAWS DOES THE AMENDMENT PRECLUDE? The NRA's experts like Prof. Steve Halbrook believe the Amendment does more than I feel it does. And another expert, Prof. Nelson Lund, thinks neither Halbrook nor I interpret the Amendment broadly enough. We all agree, however, that the Amendment guarantees every responsible law-abiding adult freedom of choice regarding guns.
So assault-weapon bans are unconstitutional. "Assault weapons" are just semiautomatic rifles differing only in that they are down-powered from those of the WWII era. Banning them infringes on the freedom of law-abiding, responsible adults to choose which firearms they wish to have. Magazine limitations are invalid for the same reason.
So-called Saturday Night Special bans are valid only insofar as a particular model of firearm is provably unreliable or dangerous to use in the manner it is reasonably foreseeable to be used. The reasons for most SNS bans--that the guns are small, light and/or inexpensive--are invalid under the Second Amendment. Nor can states push gun prices to astronomical levels by requiring that guns incorporate dubious or unnecessary safety features.
LIMITS ON THE AMENDMENT The Amendment covers only small arms. Neither RPGs, cannons, grenades nor the other super-destructive devices of modern war are covered.
Guns may be banned to juveniles, convicted felons, aliens and the insane, all of whom have been excluded from the right to arms in free societies dating back to ancient Greece. (Juveniles have the right to use firearms under parental supervision.)
Though Professors Lund and Halbrook disagree, I think gun registration and license requirements to own are valid. What is invalid is licensing as traditionally practiced in New York. For licensing to be valid, licenses must be granted to all law-abiding, responsible applicants and within some very short period like 72 hours. If New York cannot manage to accomplish this then it cannot constitutionally require a license to own a firearm.
The right to bear arms includes a right to carry them but not concealed. On the other hand, if a license is required for concealed carry, equal standards must be applied. If retired cops routinely get licenses, so must everyone else who may be in danger from their connection with the justice system. And if the wealthy and influential routinely get licenses, so must the entire responsible, law-abiding adult populace.
VINDICATING THE RIGHT TODAY The Supreme Court has briefly referred to the Amendment in almost 40 different opinions, all showing that it guarantees an individual right to arms. But the court has never provided a full and lengthy exposition of the Amendment. In fact, several lengthy and considered opinions would be required to illuminate the Amendment's various aspects.
To any judge willing to follow the law, it must be clear that the Amendment guarantees the freedom of all responsible, law-abiding adults to choose to possess firearms for personal and family defense. We must depend on the president to appoint such judges and the Senate to confirm them.
Several vacancies on the U.S. Supreme court are likely during the next presidential term. Many appointments are also expected on lower federal and appellate courts. The president and members of the senate who are elected in November will play a major role in the rights of gun owners for many years.
Sorry but my cousins' Mohawk St. Regis (Akwesasne) Treaties of 1784 and 1794 not subject to some U.S. laws.
OSHA Commission upholds Mohawk treaty rights
Posted: June 18, 2002 - 1:00pm EST
http://www.indiancountry.com/index.php?1024276937
Sometimes a good decision on native sovereignty and treaty rights comes from an unlikely case.
Recently the St. Regis (Akwesasne) Mohawk Tribe challenged the right of investigators from the Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor to conduct inspections at the tribe’s Akwesasne Mohawk Casino. The U.S. District Court in Northern New York approved a warrant for OSHA investigators to inspect the gaming enterprise. They found some OSHA code violations.
As a member of the Six Nations or Iroquois Confederacy, the Mohawks argued to the U.S. Occupational Safety and Health Review Commission that applying the federal OSHA Act of 1970 "abrogated rights guaranteed" by treaties between them and the United States. They relied on a framework for analysis held in a 1996 case that "a federal statute will not apply to [Indians] ... if … the application of the law to the tribe would abrogate rights guaranteed by Indian treaties."
The Mohawks argued that unlike other treaty cases, where treaties may not have been specific enough, the treaties they invoked, the 1784 Treaty of Fort Stanwix and the 1794 treaty of Canandaigua, contained language that was specific to their contention that their management of their own enterprises on tribal land was protected.
The Commission agreed with the Mohawk argument. It has issued an "ORDER" concluding "the application of the OSHA Act of 1970 in fact ‘abrogated rights guaranteed by treaties.’" In an unusually well reasoned reading of applicable treaties and case law, the Commission also concluded that the federal government had no "subject matter jurisdiction" in the case.
The Commission reviewed other Indian cases where OSHA has been applied. But it found that the treaties invoked by the Mohawks under their Six Nations status had more specific language that pertained directly to the case. In decisions stemming from Navajo cases, treaty language was deemed insufficiently protective of the Indian use of Indian land. The language of the two treaties cited by the Mohawks and the expressed treaty rights, says the Commission, "are far-reaching in comparison to those at issue in Navajo Products and Warm Springs, supra. The treaties at issue here go further than assuring the Six Nations’ interest in their lands but they also promised unbridled control over how that land is used."
So it is that Mohawks today can say Niáweh (thank you) to their ancestors, for the wisdom of their forethought in the exercise of their sovereignty. The Treaty of Fort Stanwix of 1784, after describing the geographical boundaries of "the lands of the Six Nations," provided that the Indians, "shall be secured in the peaceful possession of the lands ..."
The Treaty of Canandaigua stated that, "The United States will never claim the same nor disturb them or either of the Six Nations, nor their Indian friends residing thereon and united with them in the free use and enjoyment thereof: but the said reservations shall remain theirs, until they choose to sell the same to the people of the United States ..."
Stated the Commission, under the signature of Judge Michael H. Schoenfeld: "In essence, the treaties vowed that the United States would leave the Six Nations alone regarding their activities on their own lands. In this regard, the fact that the Casino is a tribal, not an individual, enterprise sways heavily in their favor. The solemn promises of 1784 and 1794 are paramount to the 1970 goals of the Act."
This is very strong and welcome language. It is also a serious lesson for all Indian people on the nature of language in any and all legal documents forged with other governments. Sovereignty not explicitly given up is sovereignty retained. The tribal nations have to give it up to lose it. Even military conquest, coercion, oppression or occupation, do not obliterate Indian title and governance over Indian country lands. "... [H]ere," said the Commission, "the sought-after application of federal law would serve to abrogate rights specifically promised by treaty."
For any American Indian government so protected by treaty, and in particular for the Six Nations, the appropriate reasoning and strong language from the OSHA Review Commission is particularly welcome. It is an excellent principal to invoke.
-- After all, this is exactly what the Founding Fathers had in mind. Your state decides. [gun rights]
Mindboggling delusion paulsen. We the people have an inalienable RKBA's, a power we have never surrendered to any state. We have only delegated certain portions of this power to fed/state/local governments, under our Constitutional rule of law.
If your state wants concealed carry, fine. If another state doesn't, that's fine too. Your state wants "assault-style" weapons, fine. California doesn't? Screw 'em.
You simply ignore our most basic self evident rights, paulsen. Rant on in your dementia.
If the RKBA is an absolute burning issue with you, the FF figured there would be a state right up your alley. Move to it.
You should move paulsen. To a socialist state w/gun control. England might welcome you.
Now, here's what's going to be interesting -- and you heard it from robertpaulsen first. Watch what happens when the 1994 federal AWB expires, and it will expire. Watch how many states rush to pass their own AWB to fill the gap. You say it's the big bad federal government banning guns via the AWB? You ain't seen nothing yet.
Got the hardly waits, dontcha paulsen.. Gawd but you are such an obvious Brady buncher shill. Amazing you still have the chutzpah to attempt to pass yourself off as a conservative.
I disagree. The most problematical federal rulings are those which invent a "collective right". Next most problematic is the notion from US vs. Miller that the government should be the arbiter of which weapons are suitable. That is a decision best left to the individual faced with a need.
If the Founders had meant to restrict the arms protected to only those which the courts or the legislature found acceptable, they could have said so.
robertpaulsen also said: "That takes some imagination. "
You think it takes imagination to suppose that the courts would do to the Second Amendment exactly that which the courts did to the First Amendment in Gitlow? Remember, the court looked to the First Amendment which states "Congress shall make no law..." and failed to apply that standard to the states. They invented a presumption that people should be disallowed any right which might threaten the state.
Thanks for compiling the list! Excellent! Bookmarked
Doesn't the Constitution state VERY clearly that the right of the people to keep and bear arms shall not be infringed? The argument ends right there.
Tell that to those that want my our guns.
Alas, you can't talk to those who wish to be deaf.
From time to time, I’ll post or ping on noteworthy articles about politics, foreign and military affairs. Let me know if you want off my list. This is a combined list.
In comment# 178 you'll find a compilation from apparently all the state constitutions of the relevant text regarding the right to keep and bear arms in each state.
Me too. But some folks, such as Sarah Brady and the Million Moms, deliberately misconstrue the plain meaning of the Second Amendment because they don't like what it says.
Doesn't the Constitution state VERY clearly that the right of the people to keep and bear arms shall not be infringed? The argument ends right there.
I agree and so does Justice Clarence Thomas. In a footnote to his opinion in Printz vs US he wrote:
Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the "right to keep and bear arms" is, as the Amendment's text suggests, a personal right.
The gun grabbers will use hook or crook to get around the Second Amendment. Justice Clarence Thomas wrote an interesting opinion in Printz vs US.
Justice Thomas, concurring.
The Court today properly holds that the Brady Act violates the Tenth Amendment in that it compels state law enforcement officers to "administer or enforce a federal regulatory program." See ante, at 25. Although I join the Court's opinion in full, I write separately to emphasize that the Tenth Amendment affirms the undeniable notion that under our Constitution, the Federal Government is one of enumerated, hence limited, powers. See, e.g., McCulloch v. Maryland, 4 Wheat. 316, 405 (1819) ("This government is acknowledged by all to be one of enumerated powers"). "[T]hat those limits may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 1 Cranch 137, 176 (1803). Accordingly, the Federal Government may act only where the Constitution authorizes it to do so. Cf. New York v. United States, 505 U.S. 144 (1992).
In my "revisionist" view, see post, at 3, the Federal Government's authority under the Commerce Clause, which merely allocates to Congress the power "to regulate Commerce . . . among the several states," does not extend to the regulation of wholly intrastate, point of sale transactions. See United States v. Lopez, 514 U.S. 549, 584 (1995) (concurring opinion).
Absent the underlying authority to regulate the intrastate transfer of firearms, Congress surely lacks the corollary power to impress state law enforcement officers into administering and enforcing such regulations. Although this Court has long interpreted the Constitution as ceding Congress extensive authority to regulate commerce (interstate or otherwise), I continue to believe that we must "temper our Commerce Clause jurisprudence" and return to an interpretation better rooted in the Clause's original understanding.
Historically, it was common for trading ships to be armed with cannon, so I would imagine so.
That must be why we negotiate arms limitation treates with foreign nations. Wouldn't want them to have too many small arms. </sarcasm
Arms includd cannon in the days when the second amendment was ratified. If you, or your group, could afford them, you could own them. And the Constitution means now what it meant then.
Cannor are indeed ordanance, but both cannon and muskets are arms. We have an Arms Control and DisArmament Agency, not an Ordance Control Agency. The Strategic Arms Limitation Treaty did not concernt AR-15s and AK-74s.
From the 1828 Webster's Dictionary. 'ARMS, n. plu. [L. arma.]
1. Weapons of offense, or armor for defense and protection of the body.
2. War; hostility.
Arms and the man I sing.
To be in arms, to be in a state of hostility, or in a military life.
To arms is a phrase which denotes a taking arms for war or hostility; particularly, a summoning to war.
To take arms, is to arm for attack or defense.
Bred to arms denotes that a person has been educated to the profession of a soldier.
3. The ensigns armorial of a family; consisting of figures and colors borne in shields, banners, &c., as marks of dignity and distinction, and descending from father to son.
4. In law, arms are any thing which a man takes in his hand in anger, to strike or assault another.
5. In botany, one of the seven species of fulcra or props of plants, enumerated by Linne and others. The different species of arms or armor, are prickles, thorns, forks and stings, which seem intended to protect the plants from injury by animals.
Sire arms, are such as may be charged with powder, as cannon, muskets, mortars, &c.
A stand of arms consists of a musket, bayonet, cartridge-box and belt, with a sword. But for common soldiers a sword is not necessary.
In falconry, arms are the legs of a hawk from the thigh to the foot.
The Congress *hired* no one (in this context). They issued permision for private individuals (and groups of them) to attack shipping of a particular nation or group of nations. The privateers could take and sell any ships or cargo they captured. It was in effect legalized piracy. The "pay" came only in the form of booty. Most of the ships were owned by citizens, and mostly crewed by them as well. But the key point here is ownership. The ships, and the cannon they mounted, were not government owned. The Constitution clearly contemplates that citizens (and others) were to continue owning armed ships, or at least armable ships and the guns to arm them with. (The guns might be stored ashore until needed, to allow more "payload" during times of "peace".)
It wouldn't make much sense for the privateers to only be able to aquire and own their guns after being granted the Letter of Marque, since if they could procure the guns quickly, so could an expanded Navy.
Opinions differed in the antebellum period (before the Civil War), some state courts ruled that the second amendment restricted the states, others did not. Federal court ruling were thin, but generally indicated that it did not constrain the states. However the intent of the 14th amendment, as explicated stated by it's authors, was to apply the restrictions of first 8 amendments to the state governments. The Courts did not at first "interpret" it that way, favoring states' "rights" (actually powers) but later courts, rather than straightforwardly overturning the earlier rulings as clearly in error (something courts are loath to do, because it admits that judges and justices can be wrong), they instead came up with the bogus "incorporation" doctrine, using the "due process" provision of the 14th. The nice thing, from the Courts viewpoint, is that it gives them the power to determine what rights are protected, and which are not.
Not just the Concord militiamen or minutemen (as you know I'm sure, the minutemen were an especially well trained subset of the militia), but those from many other towns as well. Lexington of course, but also Lincoln, Menotomy(sic) (now Arlington), Medford, Bedford, Salem, Danvers, Beverly and others. Not all those made it to the fight at the bridge, but all made it to the running gun battle on the road back to Boston/Breed's Hill. Many more from even farther away made it into the later Bunker Hill battle.
But who were the members of the Miltia and Minutemen, but common citizens? The militia was organized along town or township lines, but wasn't really a part of the town government in the usual sense. The US Supreme Court in Miller defined the Militia as "all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." "
You actually might want to check out post 177 and the link to the definition of a destructive device. I suspect that the legal term you are searching for is not ordinance, but destructive device.
The anti-federalists were, but the Federalists won the argument and the Constitution explicitly empowers the Congress to raise and support Armies. However the anti-federalists got the "bone" of the funding for those armies (we have two you know, a ground army and an air army, which we call the Air Force) was limited to two years. In practice the funding for the DoD (and it's predecessors War and Navy departments) is for a single year.
Well not quite. The National Guard is a componet of the militia, but it is not the whole militia, even by federal definition. However states have their own definition. The Texas definition, for example, has a wider age range, and includes women as well as men. It only excludes a very few public officials. All are subject to emergency call by the governor.
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