Supreme Court or no, one either believes in self-defense, or not.
To those that believe the state bears the burden and will protect them, the guillotines, machineguns and gas chambers will be waiting.
Posted on 12/06/2005 10:16:58 AM PST by neverdem
The Second Amendment: Citizens really are 'an army of one.'
SANFORD LEVINSON, a distin- guished constitutional law pro- fessor, wrote in the Yale Law Journal that the Second Amendment suffers from a lack of serious scholarship. Few law students envision the Second Amendment as an area of lucrative practice upon graduation. His article, "The Embarrassing Second Amendment," sent a shock wave through academia by suggesting that the amendment might actually mean what it says.
Issues involving guns have taken center stage in the cultural divide that separates Red and Blue America. Gun-control advocates point to the militia clause of the Second Amendment, arguing that it warrants a collective, rather than an individual, right to keep and bear arms. However, history--buttressed by the Founders' clear understanding--dictates that the amendment guarantees this right to individual Americans.
The U.S. Supreme Court has not dealt directly with the Second Amendment since 1939. Then, United States v. Miller held that a sawed-off shotgun was subject to registration because there was no evidence before the court that it had a military use. This opinion suggests that any demonstrably military weapon should enjoy the protection of the Second Amendment. The Supreme Court has conjured rights from the Constitution that do not exist in the text--while disparaging those rights contained in the document itself--leaving both sides of the gun debate cause for concern in any future rulings.
Oblique references in subsequent cases lend credibility to an individual-rights interpretation. The late Chief Justice William Rehnquist noted in a 1990 case, United States v. Verdugo-Urquidez, that the use of "the people" in the Bill of Rights was used not to avoid an "awkward rhetorical redundancy," but rather was chosen as a "term of art employed in select parts of the Constitution." He noted that the use of "the people" in the First, Second, Fourth, Ninth and 10th Amendments was within the context of protecting that class of persons who are part of the national community.
A guns-and-ammo mandate When adopted by the states, the Second Amendment generated no controversy. State and federal militia laws required citizens to keep arms and ammunition in their homes. These statutes specified everything from the number of cartridges to the amount of gunpowder that Americans were to keep on hand. Arms and accouterment for militia service were exempted from levy for indebtedness, and failure to have the proper equipment could draw fines.
The greater concern, as articulated by the great orator Patrick Henry, was how to provide guns to those who could not afford them. The bearing of arms was both a right and responsibility of citizenship, with arms being legally denied to those who were not citizens.
The militia--Richard Henry Lee, who put forth the motion to write the Declaration of Independence, described it as "the people themselves"--stood in marked contrast to the hated standing army. Equally despised was a "select militia" that excluded general citizen participation.
The very idea that citizens might be barred from militia membership was itself an indication of tyranny. To the Founders, a "well regulated" militia was capable of being directed in proper military order, serving those functions otherwise performed by a regular army.
The original purpose of the entire Bill of Rights was to prevent federal intrusion into the fundamental liberties of the people. The collective-rights interpretation contends that the militia clause limits the scope of the right to keep and bear arms, guaranteeing only that states can maintain a National Guard. The flaw of this interpretation is clear in the language of the Second Amendment, which secures the rights of the "people," and not the "states," to keep and bear arms.
The right to be armed for personal protection is well recognized by common law and preserved under the Ninth Amendment. The English Bill of Rights had guaranteed--in 1689, only to Protestants--arms for defense of self. William Blackstone wrote in his influential Commentaries that "Self-defense is justly called the primary law of nature so it is not, neither can it be, in fact, taken away by the law of society."
Defend thyself The U.S. Supreme Court reiterated, in the 2005 case of Castle Rock v. Gonzales, that government cannot be held liable for failure to protect the lives of its citizens. Personal self-defense remains an individual responsibility.
The Second Amendment serves two higher callings.
On a practical level, armed citizens provided the ultimate security against enemies and tyrants, without the cost of paid government forces.
On a philosophical level, the Founders knew that our ultimate success depended on the character of the people. George Mason wrote in the Virginia Declaration of Rights that "no free government, nor the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality and virtue."
Much is assured us by the Bill of Rights--but much is also expected of us.
The ideal citizen was self-determinative and self-reliant, while consciously dedicated to the common good. A willingness to defend self and country, with privately owned arms, was the crucial indicator of character. Citizens possessed of both power and virtue were necessary to continue a republican form of government. Indeed, the American paragon is the Minuteman, typically represented as a yeoman farmer, who goes back to the plow when his martial duty is done.
The Second Amendment guarantees our sacred rights, but also reminds us of our solemn responsibilities. Benjamin Franklin observed that "those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty or Safety."
The Founders meant what they wrote--even if, as professor Levinson indicated, some today may find it "embarrassing."
TOM MONCURE of Stafford County, a former assistant counsel to the National Rifle Association, now serves as senior counsel to the attorney general of Virginia.
Today: Amendment 2--bearing arms
Wednesday, Dec. 7: Amendment 3--quartering soldiers.
Thursday, Dec. 8: Amendment 4--search and seizure.
Friday, Dec. 9: Amendment 5--property rights and double jeopardy.
Saturday, Dec. 10: Amendment 6--criminal rights.
Sunday, Dec. 11: Amendment 7--jury trial.
Tuesday, Dec. 13: Amendment 8--excessive fines; cruel and unusual punishment.
Wednesday, Dec. 14: Amendment 9--unenumerated rights.
Thursday, Dec. 15, Bill of Rights Day: Amendment 10--states' rights.
Friday, Dec. 16: Amending the Constitution.
The Bill of Rights puts you--the individual citizen--in the U.S.Constitution, and spells out liberties that no government official can revoke. Through Bill of Rights Day, Dec. 15, we will offer commentaries on the first 10 amendments that make up the bill. --The Editors
I guess it all depends on how you define the words: "right", "people", "amendment", etc.
I think that Mark (The Great One) F. Lee Levin should write his next book on the Declaration of Independence, Constitution / Bill of Rights.
TT
Great article ~ good stuff!
I would only add to it, to point out that General Washington recommended the Swiss system for arming and training the male youth, in every household, at the time he gave up his command, after our Victory in the Revolutionary War. He correctly observed the many benefits, which that system of an armed population provided--both to the community at large and to the individual youth, participating.
For more detailed comments The Right & Duty To Keep & Bear Arms.
William Flax
Pretty terse comment/argument for a newbie. Care to explain yourself? An armed society is a polite society. Armed men are citizens, disarmed they are mere subjects.
Just think that up until the NFA was enacted anyone like Maxim or Browning could design and sell full auto. No questions asked and no complaints from anyone. The 2nd ammendemnt was fully understood and never questioned.
Sickening how those freedoms are gone!
Supreme Court or no, one either believes in self-defense, or not.
To those that believe the state bears the burden and will protect them, the guillotines, machineguns and gas chambers will be waiting.
No, not at all. Those words have specific meanings, which are understood by those that understand the enumeration of an individual right, which is the Second Amendment.
Maybe it's like: "It depends upon what the meaning of 'is' is." BS, that's not bachelor of science.
Thanks for the link!
bttt
It may well be that legal scholars who examine the issue generally come to the conclusion that it really is an individual right (like the other nine in the Bill) despite political predilictions to the contrary. Dershowitz appears to be such a case if I understand correctly what he's written on it. If so, my guess is that it is not soon likely to be seriously tested in court despite all the noise. Could be wrong...
Just think that up until the NFA was enacted anyone like Maxim or Browning could design and sell full auto.
and since "normal" citizens have been disallowed to invent and manufacture, how many really good, new designs have come about?
Sure - it's all up for grabs, isn't it?
Give libs and their ilk an inch and they'll define your right to your own life right out from under you.
History is my witness.
Thanks for your adding your oar to the good fight for the America, we need to preserve!
Actually quite a few. Unfortunately, most are from overseas by "state" sponsored corporations. The home inventor used to be the backbone of US national security :>)
Either you need a sarcasm tag OR a lot of reading in American History.
"and since "normal" citizens have been disallowed to invent and manufacture, how many really good, new designs have come about?
Actually quite a few. Unfortunately, most are from overseas by "state" sponsored corporations. The home inventor used to be the backbone of US national security :>)"
Howard Hughes being a pretty good example. No college degree, self taught engineer, "ladies' man." One Hughes product, the Phoenix missle system, was just retired in 2004 after 30 years of service!
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