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.
I'm familiar with them, and not sure they're relevant.
Upshot is that so long as 922(o) holds, the feds can't bust you for not paying the $200 tax on a post-'86 MG ... but you can still be busted for violating 922(o), which is harsher. The rulings simply do not go any further than that; they do NOT invalidate any part of NFA law which is not shadowed by 922(o).
...and...
Should 922(o) be overturned, the parts of NFA it covered would be restored.
Also, while I respect what a "leading FReeper" may say, I reserve the right to disagree with an opinion, even one that you might agree with.
Finally, if you accept that there is the capability of the Federal government to outlaw nukes, then you are admitting that the 2nd Amendment right is not absolute with all weaponry. That only bolsters my assertion that while Arms are specifically included, ordnance is not specifically covered under the 2nd Amendment.
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.
Yep, this is a common argument made by those who support prohibitions on ordnance like cannons and machine guns, etc. -- Al of which are 'arms', as per the 2nd.
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.
Pure supposition.. -- Nothing in the Constitution itself or in the documentary record leading to it's ratification supports that theory.
This means that the Federal government is free to regulate ordnance, IMO. In the modern army, ordnance would include the M-1 Abrams Tank.
The ownership of tanks [of any sort] is not regulated/outlawed. Only the arms mounted on them are unconstitutionally prohibited.
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.
Again, owning "- planes -" is totally unregulated, just like tanks. Constitutionally speaking, either are 'ordnance' or arms.
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."
Allowed? How confused. In battle any soldier fires any weapon at hand to kill the enemy. This is a poor argument made only to favor prohibitions on machine guns.
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).
And so is the "full automatic variety". Only gun grabbers 'see' a difference.
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.
They do, at short ranges, they spray out more lethal 'bullets' than a submachine gun, just as fast.. -- Proving that machine guns are no more deadly 'ordnance' than small arms.
You say "'Ordnance' need not be enumerated in the 2nd, -- as the 9th makes clear." is obviously correct.
But neither does it mean that it ordnance is a right that is covered by the 9th.
Your belief that 'ordnance' is not arms is flawed. Prior to the Firearms Act of '33, all types of arms/ordnance were unregulated. -- That 'Act' was a bald unconstitutional infringement.
Mind you, I am not certain what is covered under the 9th, but I am sure the word ordnance is not in the 2nd Amendment. Ordnance is obviously not covered by the 2nd, since the framers of the Bill of Rights very specifically said "Arms."
You're nitpicking common english usage in order to 'win' a political argument that was settled by ratification of the Constitution. Cannons, machine guns, etc, -- what you call 'ordnance' were all unregulated for the first 150 years of the Republic.
In my opinion, the way to resolve what is covered by the 9th is covered by the 10th - powers not given to the Feds are reserved to the States or the People.
You're ignoring that some powers are prohibited to States; -- one is infringing on our right to arms.
States have chosen to outlaw what I have termed as ordnance. That means that the States have spoken and the People (through their elected representatives) have not over-ruled those laws.
The 'majority rule' theory you've outlined does not trump the clear words of the 2nd. State have no power to 'oulaw' arms/ordnance.
Finally, if you accept that there is the capability of the Federal government to outlaw nukes,
The feds closely regulate nuclear, bio, & chemical substances that can be used for weapons. They do not 'outlaw' them. Lots of companies & people own and use such materials, very carefully..
then you are admitting that the 2nd Amendment right is not absolute with all weaponry.
Reasonable regulations can be legislated, as long as they do not deprive people of "life, liberty or property without due process of law". --- Try to understand the principle behind the 14th.
That only bolsters my assertion that while Arms are specifically included, ordnance is not specifically covered under the 2nd Amendment.
Why do you want to give government the power to prohibit arms/ordnance? The State of CA is presently forbidding the possession or transfer of some semi-auto arms, using your type of reasoning. -- You approve?
You replied:Pure supposition.. -- Nothing in the Constitution itself or in the documentary record leading to it's ratification supports that theory.
And where is your documentary evidence that ordnance was included in the 2nd Amendment?
The ownership of tanks [of any sort] is not regulated/outlawed. Only the arms mounted on them are unconstitutionally prohibited.
Sorry, I was not specific enough about either tanks or planes. You are correct, when I was mentioning either, I was only referring to the weapons on them. I have known of several people who own tanks and private ownership of airplanes is obviously not prohibited.
Allowed? How confused. In battle any soldier fires any weapon at hand to kill the enemy.
How confused. The difference between a mob and the military is mainly in the discipline of the personnel. Firing a weapon on full automatic without a stabilizing attachment (such as an M-16, without a bipod) generally wastes ammunition and hits less than well-aimed semi-automatic fire. For that reason, the military regulates how personnel are to use the weapons they are given. Rambo was a joke and would have been bounced out of every unit I was ever in.
Reasonable regulations can be legislated, as long as they do not deprive people of "life, liberty or property without due process of law". --- Try to understand the principle behind the 14th.
This is actually the gun-grabbers argument. What are "reasonable" regulations? If the 2nd means ALL weaponry, arms and ordnance, then it is an absolute right (subject only to punishment for abuses of the rights of others). That is, you could own a nuclear weapon, but could be prosecuted for misusing it. The 2nd actually means all arms and it is an absolute right - subject to prosecution for misuse of the arms (such as shooting your neighbor without just cause).
By the way, "life, liberty or property without due process of law" is in the 5th Amendment. The 14th merely extends this to the individual states.
Why do you want to give government the power to prohibit arms/ordnance? The State of CA is presently forbidding the possession or transfer of some semi-auto arms, using your type of reasoning. -- You approve?
You have obviously been nit-picking my argument so much you are ignoring my points. Earlier, I specifically said that the semi-auto arems are covered under the 2nd Amendment (you even quoted that), now you are saying that I said the opposite.
This is boring - you are not debating principles, you are semantically arguing on the meaning of each phrase in my posts - looking for things like the planes vs weapons on the planes (it should have been obvious that I meant the weapons, since planes can be privately owned). I gave up this kind of argument in high school. I will go elsewhere, where I can get a reasoned argument. Thanks for playing.
They did win at the appellate level, though.
L
Bruce, I've argued that the principles inherent in our founding documents, and the plain words of the Constitution itself in the 2nd, 5th, 9th, 10th & 14th Amendents make it abundantly clear that our RKBA's [in your own words] "-- is an absolute right (subject only to punishment for abuses of the rights of others).
That is, you could own a nuclear weapon, [subject to reasonable regulations on safe storage] but could be prosecuted for misusing it.
The 2nd actually means all arms and it is an absolute right - subject to prosecution for misuse of the arms (such as shooting your neighbor without just cause). --"
You reject that argument.. You've claimed that 'ordnance' can be 'outlawed' by any level of government.
Case closed. -- Feel proud of arguing ~for~ 'gun control'.
Maybe you should learn to read before you come out in the real world. I did not say "you could own a nuclear weapon." I said, IF your argument were valid, you could own a nuclear weapon. Your deliberate misquoting is worthly of a Clinton or a Kennedy.
Learn to read. -- 'We the people' [schools, hospitals, power companies, etc.] can and do own nuclear materials that could be used as weapons. -- These materials are closely regulated, but the fact that they are available proves the validity of my basic argument. [Quoted in ~your~ words.]
Your deliberate misquoting is worthly of a Clinton or a Kennedy.
Your deliberate attempt to divert the issue is typical of those who back gun 'controls'.
There wasn't one, a pro 2nd side that is, at the Supreme Court. It was successfully argued at the district court level, during pretrial motions. The judge dismissed the case on the basis that no violation of a valid law was alleged.
Only the government was represented before the Supreme Court. The NRA did not file a friend of the Court brief, being mostly a target shooting and hunting group in those days, the persons originally charged were also not represented. Today that would not happen. Even if they could not be located, which was more or less the case then, counsel would be appointed to represent them. One of the parties was dead by the time the Court rendered its opinion.
See this collection of Miller Documents for the whole sordid story.
Miller was not the "plaintiff", the government had appealed the case to the Supreme Court. The government was the plaintiff. But you are correct in that only the government was represented in the Supreme Court proceedings.
Uh-uh, don't buy it and if anyone attempts to subvert the intentions of the founding fathers, it should be a high crime.
Miller could not be located, but he also did not have the resources. He also died before the court issued it's opinion, and probably after the case was argued. The Southwest American reported on April 6, 1939, that Miller's body had been found in the "nearly dry" bed of Little Spencer creek, nine miles southwest of Chelesa, Oklahoma. He had been shot four times with a .38. Miller's ".45 calibre pistol," from which he had fired three shots in his defense, was found near his body. He was forty years old. The case was argued before the Supreme Court March 30, 1939. and Decided May 15, 1939.
Actually the other defendant, Frank Layton, had been placed on probation by the same judge who had declared the NFA to be unconstitutional. No one was fined or went to prison. Layton was discharged from the probation about 4 years later.
So does Nebraska:
All persons. . . have certain . . . rights, among these are . . . the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof." (Article 1, Section 1).
All after "arms" and before "and such rights", was added by the People of the state in, IIRC, 1986. However that hasn't led to any gun control laws, some of which are outright bans (by cities) on bearing arms. The Courts have just ignored the will of the people. Concealed carry was still banned, as was open carry of handguns in most situations, at least until a fairly restrictive CHL law was passed in the last session of the unicameral. Several cities plan to not recognize the CHLs.
"Today that would not happen."
This certainly isn't our grandfathers NRA, not any time soon will a major 2nd amend issue go unchallenged by our side.
However the soldiers were still issued that fully automatic M-16, or the even less controllable M-14, also full auto. It was only until the advent of the M-16A2 that the soldiers were issued "burst fire" weapons. The M-16A2 fires single shots or 3 round bursts. You cannot own one. But as you state it was military discipline, not the capability of the weapon itself that prohibited full auto fire. The upside of having it, was that there are times when it's useful, even for individual infantrymen, but 3 round burst serves pretty much as well in those circumstances.
Cannon and other ordinance was clearly included in the definition of "arms". A little quote from Thomas Jefferson, as President is illuminating.
Responding to Alexander Hamilton's opinions on the international incident involving a French warship equipped with cannons made in America, Jefferson thought that "Great Britain ought not to complain: for, since the date of the order forbidding that any of the belligerent powers should equip themselves in our ports with our arms, these two cannon are all that have escaped the vigilance of our officers, on the part of their enemies.".
Thus Jefferson thought cannon were included in the definition of arms. Ordinance is thus a subset of the class of arms, not a separate exclusive set.
The fact that individuals could and did own them at the time of the adoption of the Constitution is evidenced by the power granted Congress to issue letters of Marque and Reprisal. Not much point in issuing a letter of Marque if private citizens could not own the cannon armed ships required to execute it. The letter was not a condition of ownership of the ships and cannon. Individuals often owned cannon, although ownership by towns or by local militia units was more common, but that's because they are expensive, hard for individuals to afford.
Neither Miller nor his attorney showed up.
They weren't defendants, but rather appellees. The government was the plaintiff, although in the documents the government is also referred to as an appellee. The charges against Miller and Layton had been dismissed by the district court Judge, on the grounds that the "law" was a violation of the second amendment, so they were no longer defendants.
Such evidence would have needed to be provided to the lower court when they conducted the "further proceedings" ordered by the Supreme Court. However since Miller was dead and Layton copped a plea in return for probation only, no court proceedings were held, and thus there was no opportunity to produce that documentation.
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