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 will not go quietly either, my friend.
As for Number Three: It’s because the Libs can’t do what they want to do to us as long as WE can stop them. The threat of the use of coercive force is negated when it can be equally counterbalanced by defensive force.
“...Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess,
are invincible by any force which our enemy can send against us...”
“The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave.”
-Patrick Henry, St John’s, March 23, 1775
We’re AMERICANS. This is not England or Canada or Australia, or Eurosocialistopia.
We either stand up like American men, or we roll over like worn-out old French wh*re and then take what we deserve.
About sums it up. There is no choice between liberty or slavery; the concentration camp always looms in the background for those who compromise with evil.
Recent history proves it. The libs will ally themselves with the Muslims, with communists/socialists, with ANYONE willing to do harm to this country, it’s heritage, and our people.
Simple Miller had died in prison ,his lawyers no longer had a client didn’t bother to show up before the court to argue their side if the case.
Dickwad
Any idiot who would argue that the 2nd does not incorporate the fierce sentiment of these statements is an idiot.
However, please beware of any discussion about the 2nd A. that doesn't mention its relationship to the 14th Amendment.
More specifically, John Bingham, the main author of Sec. 1 of the 14th A., included the 2nd A. when he read the first eight amendments as examples of constitutional statutes containing privileges and immunities that the 14th A. applied to the states. So there is no doubt in my mind that the 2nd and 14th Amendments protect the personal right to keep and bear arms from both the federal and state governments as much as any other constitutional privilege and immunity protects other personal rights.
See the 2nd A. in the middle column of the following page in the Congressional Globe, a precursor to the Congressional Record.
http://tinyurl.com/y3ne4nNote that the referenced page is dated for more than two years after the 14th A. was ratified. So Bingham was evidently reassuring his colleagues on the scope and purpose of the ratified 14th Amendment.
Can someone explain how that was not successfully argued by the pro 2nd side.
The prosecution lied saying that shotguns were not a militia arm. None of the Justices had served in the military (or they would have known how handy the shotgun was during WWI), and the defense was not present as the lawyer for the defense never bothered to file a brief for the Supreme Court hearing.
Absolutely. It means that we should never have to fear an oppressive government again!
“Can someone explain how that was not successfully argued by the pro 2nd side. “
The nine answers I received in 2006 were sufficient.
Because there WAS no opposing side! ONLY the government’s position was argued.
On March 30, 1939 the Supreme Court heard the case. Attorneys for the United States argued four points:Source: Wikipedia
The National Firearms Act [NFA] is intended as a revenue-collecting measure and therefore within the authority of the Department of the Treasury.
On May 15, 1939 the Supreme Court, in a unanimous opinion by Justice McReynolds, reversed and remanded the District Court decision. The Supreme Court declared that no conflict between the NFA and the Second Amendment had been established, writing:
The defendants transported the shotgun from Oklahoma to Arkansas, and therefore used it in interstate commerce. The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.
The "double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230" was never used in any militia organization. Neither the defendants nor their legal counsel appeared at the U.S. Supreme Court.
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
Describing the constitutional authority under which Congress could call forth state militia, the Court stated:
With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view. The Court also looked to historical sources to explain the meaning of "militia" as set down by the authors of the Constitution:
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
So what triggered all of this interest today in a year and a half old thread?
would make a great tag... Thanks in advance...
It confounds me how few gun-grabbers and Courts bother to read the public writings, correspondence, journals, and documented testimony of the FF's. I've read them. They could not be more clear. Too bad they couldn't foresee how their militia clause would be so distorted. That goes for other clauses, especially the "General Welfare" clause.
That one is the end all for every give away the US has dealt with for a hundred years or more. It is probably the most cited for any dim/socialist.
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