Skip to comments.2nd: The founders meant what they wrote about arms
Posted on 07/03/2006 6:45:30 PM PDT by kerryusama04
Sanford Levinson, a distinguished constitutional law professor, 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 individuals.
The U.S. Supreme Court has not dealt directly with the Second Amendment since 1939.
Then, United States vs. 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 vs. 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 nation.
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.
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 very idea that citizens might be barred from militia membership was itself an indication of tyranny.
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 U.S. Supreme Court reiterated, in the 2005 case of Castle Rock vs. 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.
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.
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 nor Safety."
The founders meant what they wrote - even if, as professor Levinson indicated, some today may find it "embarrassing."
Tom Moncure is a former assistant counsel to the National Rifle Association.
The very idea that citizens might be barred from militia membership was itself an indication of tyranny.
Miller didn't have the resources. IIRC, the case wasn't really argued.
And do not forget that Letters of Marque and Rebuke infer both private armies and private battleships, and that clause in the Constitution PRECEDES the clauses that permit the Federal Government to form and fund an Army and Navy.
NO, SCOTUS DID NOT HOLD THAT A SAWED-OFF SHOTGUN WAS SUBJECT TO REGISTRATION! And I get really sick of reading that misleading claim from PRO-RKBA sources! SCOTUS remanded this case to the lower court, which was to determine WHETHER that type of gun had ever had a military use. If the lower court had proceeded with the case, it would have found that sawed-off shotguns HAD been used in military action. The case was moot by the time it was remanded, since one of the two defendants had died and the other had accepted a plea bargain and paid a small fine.
Miller died and was not represented before the Supreme Court. Had so much as a monkey represented him, ample docmentation could have been provided of the use of sawed off shotguns in WWI trench warfare.
I've got a copy of just about everything you could possibly ask for on my website. See US v. Miller. Ignore the certificate error if you get one. My site is in transition at the moment.
The link didn't work,I'll check again in a few minutes.
I'd bet my life on it! ; )
This is also a good link to keep one busy for awhile.
Thanks, I put it in favorites so that I can read it later, finally I get to see a case that has puzzled me for a long time.
Paging Mayor Bloomingidiot.....
Paging Mayor Nogin.....
Paging Senator Feinswizzle...
Paging Senator Boxbrains.....
Paging The Brady Bunch.....
I truly believe that if I wanted to have a Abrams M1 tank sitting at ready on my property - no one - government official - or not has any right to infringe upon my Constitutional right to have it.
Sorry, but just because you believe something, does not make it so. You started out so well, analyzing the words in the 2nd Amendment - but then you let your feelings get in the way. This is the way liberalism works, not real conservatism - liberalism says that whatever I "feel" is right or just ought to be done. Conservatism says that we must analyze and decide what is actually in the law or the Constitution and then enforce that, even if it leads to outcomes we don't like (and change the law through the established methods if we don't like the outcome).
What I am referring to in your analysis is the word "arms." In the 18th Century, there were different types of weapons. "Arms" referred to the personal weapons that the typical militia member could be expected to possess, maintain and use. We now refer to this as small arms (among other things). The other term for weapons was "ordnance" (not ordinance, which is a local law). This referred to items that were typically provided by the government - cannons, explosives, ships, etc. An individual could own ordnance, but it was not expected to be that way, so it was not considered a right and was not put in the 2nd Amendment. This means that the Federal government is free to regulate ordnance, IMO.
In the modern army, ordnance would include the M-1 Abrams Tank. It would include machine guns (in the military, a machine gun belongs to the unit, while rifles and pistols are referred to as "personal weapons."), hand grenades, grenade launchers, bombs, planes, etc. In an Infantry squad, there are typically only two soldiers allowed to fire their M-16 on fully automatic, so one could easily argue that a fully automatic weapon of any kind is "ordnance." On the other hand, to argue "assault weapons" (whatever that means) are not "arms" is ridiculous - the semi-automatic variety is exactly what would have been considered "arms" under the 2nd Amendment (IMHO).
Not sure about the sawed off shotgun in Miller - I can see the point, but think this was more likely the Court trying to introduce some of it's own Constitutional interpretation. I don't know for sure, but I think the military has used and continues to use short-barreled shotguns.
Reply: Well thought out and expressed opinion.
It seems to me from the context of timing and the climate of events under which our Founding Fathers wrote the 2nd Amendment - it's most important purpose was to enable the citizens to (God help us that we never need to do so.) do battle with our own Federal Government to right excessive abuses of federal power against us the citizens. The raw ingredient that prompts my opinion about the strength of the interpretation of the 2nd Amendment is quoted below:
We hold these Truths to be self-evident, that all Men are created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness. That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. Prudence indeed, will dictate, that Governments long established, should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed. But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security.
One must remember the state of mind of the founders at the time the words were penned.
The founders knew that the People had a right, indeed a responsibility, to form groups (militia) to overthrow a cruel and callous government (Great Britain) because they wrote it during a war of rebellion.
In my opinion, the Second Amendment not only guarantees the right of the People to keep and bear arms, uninfringed, but also the right to organize as militia to defend themselves against the government. That's why the federal and state governments work so hard to neuter it.
What he said.
You've let your feelings get in the way. This is the way liberalism works, - liberalism says that whatever I "feel" is right or just ought to be done.
Conservatism says that we must analyze and decide what is actually in the law or the Constitution and then enforce that.
'Ordnance' need not be enumerated in the 2nd, -- as the 9th makes clear.
One of our leading FReeper's explained the concept rather well:
"-- I support the Second Amendment. And I make no bones about its purpose or to whom it applies. It was not put in place so Bill and Hillary Clinton could go duck hunting with a shotgun or so Barbara Steisand could carry a derringer in her purse to stave off overzealous fans.
It's there because the founders wanted to ensure that we the people (ie, individuals) should remain armed to defend ourselves from a government gone bad. As far as I'm concerned, we should be allowed to park fully operational Sherman tanks in our garages and commute via fighter planes (if we wish). Now, personal nukes capable of taking out large cities.... hmmmm.... I don't know if I want to trust some of the crazier antiwar libs with those. --"
Here's a good link to it:
You might also be interested in the following cases:
US v. Dalton
The money quote from US v. Dalton:
Finally, the government argues that the Gun Control Act, of which section 922(o) is a part, should not be viewed as repealing the National Firearms Act, citing a provision of the Gun Control Act passed in 1968 to that effect. The court in Rock Island Armory rejected the same government argument, observing that "the 1968 Congress cannot bind the Congress of 1986, which decided to ban transfer and possession of machineguns. P.L. 99-308, 100 Stat. 453 (May 19, 1986). Further, a Congressional declaration in 1968 does not solve a constitutional problem which arose in 1986. The ban enacted in 1986 and the government's refusal to accept registrations and tax payments, simply left the registration requirements with no constitutional basis."
And for US v. RIA:
Finally, the prosecution quotes an enactment passed in 1968 that the provisions of Title I of the Gun Control Act shall not modify or affect the National Firearms Act. (Footnote 15) However, the 1968 Congress cannot bind the Congress of 1986, which decided to ban transfer and possession of machineguns. P.L. 99-308, 100 Stat. 453 (May 19, 1986). (Footnote 16) Further, a Congressional declaration in 1968 does not solve a constitutional problem which arose in 1986. The ban enacted in 1986, and the government's refusal to accept registrations and tax payments, simply left the registration requirements with no constitutional basis. It is the duty of the judiciary to declare such laws unconstitutional. Marbury v. Madison, I Cranch. 137, 176-77, 2 L.Ed. 60 (1803).
In sum, since enactment of 18 U.S.C. sec. 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional. Accordingly, Counts l(a) and (b), 2, and 3 of the superseding indictment are
Why is it that noone has ever heard of these cases? Granted, they are appelate level opinions, because the government was too frightened to take them to the Supreme Court, but they stand and are a part of caselaw. I've found citations to the above two cases in others, so they are still available to plaintiffs.
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