Posted on 08/09/2007 6:06:52 PM PDT by kiriath_jearim
WASHINGTON, DC--(Marketwire - August 8, 2007) - Akin Gump Strauss Hauer & Feld, a leading law firm, is using the collection of founding documents compiled on ConSource, the first comprehensive online collection of Constitution-related source materials, to research and present the District of Columbia's position that the District's handgun ban withstands Constitutional scrutiny. These documents will play an important role in the petition for certiorari presented to the U.S. Supreme Court seeking to overturn the March 9 ruling by the U.S. Court of Appeals for the D.C. Circuit holding that the District's law violates the Second Amendment.
"This case has great implications for gun laws across the country," said Tom Goldstein, the head of Akin Gump's Supreme Court practice. "It is extremely important that we get the constitutional history right. With the help of ConSource, we will be able to access the full documentary record of the Second Amendment in presenting the case to the Supreme Court."
Through ConSource, Akin Gump has access to digitized collections relating to the Second Amendment: the Anti-Federalist Papers, the state ratification debates for seven states, and the legislative history of the Bill of Rights. Online access to these documents will drastically cut the research time necessary to research the case.
"Akin Gump is using this resource in one of many ways we envisioned this project could be used," said Lorianne Updike, President & Executive Director of The Constitutional Sources Project, which is creating ConSource. "Attorneys and practice groups are able to easily find prominent and obscure historical documents relating to different provisions in the Constitution via ConSource, and will soon be able to create their own collections, post briefs, and publish or block access to their practice groups' work product."
ConSource houses more than a thousand of the most important founding documents from over 30 archives across the eastern seaboard, the Midwest, and California, and will soon be adding documents from an archive in France.
To view a full case study regarding Akin Gump and the firm's use of ConSource, visit www.ConSource.org/akingump.
About The Constitutional Sources Project
Founded in May of 2005, The Constitutional Sources Project created the first, comprehensive, online library of Constitution-related source materials and provides free access to "We the People" at www.ConSource.org. Full access to the site and collections will be available on Constitution Day, September 17, 2007. This new medium will give the Founders, Reconstructionists, and original Feminists voices in the classroom and courtroom, providing everyone from the sixth grader to the Supreme Court justice with the best history of the Constitution. Collections include James Madison's Notes of the Constitutional Convention, The Federalist Papers, the Anti- and Pro-Federalist Papers, State Ratification Debates for seven states, the Bill of Rights' Legislative History and 188 personal letters detailing the workings behind-the-scenes during ratification and the passage of the Bill of Rights called the Founders' Papers.
About Akin Gump Strauss Hauer & Feld LLP
Founded in 1945, Akin Gump Strauss Hauer & Feld LLP, a leading international law firm, numbers more than 900 lawyers with offices in Austin, Beijing, Dallas, Dubai, Houston, London, Los Angeles, Moscow, New York, Philadelphia, San Antonio, San Francisco, Silicon Valley, Taipei and Washington.
Yeah, that’s what I think too. Of course, IANAL.
Considering that they won’t truly let militia members exercise that right (you can’t buy an M4), might the draft be invalidated then? They want you to fight and die for your country, but won’t let you get tools to train with on your own well before service is compelled.
Since they argued against adoption of the Constitution, and lost, their position would not be regarded as authoritative as to the intent of the Constitution.
They set minimum standards, yes. There's nothing whatsoever stopping each state from enrolling whomever they please. We have the National Guard today, yet many states have a separate and independent State Guard.
"You won't accept that "the right of THE PEOPLE to keep and bear arms shall not be infringed" actually applies to all people, save only those specifically and individually adjudicated otherwise."
Correct. I don't accept that.
When ratified in 1791, whole groups of people were not protected by the second amendment. Slaves, of course. Women and children. Indians. Foreigners. The infirm. The disabled. The elderly. The list goes on.
"THE PEOPLE" were white, male, citizens, 18-45 years of age. Dispute that with some facts rather than your guessing games -- "specifically and individually adjudicated otherwise", indeed.
"the only "people" who may enjoy the 2nd Amendment are the militia members as defined"
So say the courts.
"states which do not explicitly protect RKBA in their constitutions can, by popular vote, outlaw individual ownership of arms"
Yep. Not ALL arms, as I explained.
You wouldn't force the citizens of another state to protect that right, would you? Would you force those citizens to also protect the right to an abortion? Or will you let them decide how they want to live their lives?
You've got this little dictatorship streak in you, don't you? Kinda like YOU know what's best for everyone else.
"states which do explicitly protect RKBA in their constitutions can, per state constitutional process, repeal that protection and then promptly execute the prior point"
Sure. And they can repeal the second amendment to the U.S. Constitution.
"the feds can prohibit categories of weapons, without limit short of total prohibition of all firearms (say, ban everything but muskets)"
Nope. A state can take the federal government to court, claiming that their ability to form an effective, well regulated Militia is being infringed. In Miller v US, the U.S. Supreme Court said specifically that Militia weapons were protected from infringement.
"In 922(o), the feds have banned a category of arms entirely suitable, even central, to militia use and national defense"
They did? Then where does the U.S. military get their weapons? Where does the Texas State Guard get their weapons?
The federal government regulated the interstate transportation of certain weapons by private individuals, yes. This was done for public safety reasons, and passed the "rational basis" test by the U.S. Supreme Court.
Yep. You have to pay attention to wade through some of the period controversies from the early Republic. You read (for instance) about Jefferson writing about separation of church and state, and then find he went to church in the US Capitol building. Not exactly what some folks expect.
Since they argued against adoption of the Constitution, and lost, their position would not be regarded as authoritative as to the intent of the Constitution.
AndyJackson
Most of the anti federalists argued against specific aspects of the proposed Constitution, -- not against the overall concept of a Constitution.
-- They were not anti constitutionalists, - IE, - they did not argue, [as some here do], - that States [under majority rule], can ignore our individual rights to life, liberty or property in the writing of laws.
Calling up the militia as per Article I Section 8 is in effect a draft, and its necessity is explained by the opening lines of the 2nd, -- a militia being '-- necessary to the security of a free state, --".
The SCOTUS is just as bound by our Constitutions clear words as any other level of gov't in the USA.
A 'decision' by them, - claiming that our rights to own and carry arms can be infringed by 'reasonable' [health & safety] 'regulations' will be unenforceable, just as booze prohibition was unenforceable.
Fiat prohibitions on guns, booze, drugs, whatever, -- are unconstitutional under our concept of 'due process of law'.
As Justice Harlan recognized:
" -- [T]he full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property;
the freedom of speech, press, and religion;
the right to keep and bear arms;
the freedom from unreasonable searches and seizures; and so on.
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints --"
This is good that the founding documents and the surrounding discussions are being used in this case.
If this becomes precedent, then the next thing to push is a Constitutional Review of most Federal programs/powers with respect to the
Enumerated Powers of Article I, Section 8, and the 10th Amendment which further clarifies A1.8.
I always ask leftists, when they use the canard of “you must be a member of the militia to own a firearm”,
whether they want to exclude all women and anyone over 45
from owning a firearm, because the militia is exclusively males 17-45, by law.
What did I miss at #72?
That, plus the explicit porn picture I attached.
Was the porn apropos? — Flasher?
Naturally, that is unacceptable to those here at FR who claim that at ratification in 1791, not all of WE THE PEOPLE were protected by the second amendment. Slaves were not, as they could not attain citizenship while enslaved. Nor Indians, as long as they were members of tribes hostile to our Constitution.
To say that the 2nd did not apply to women and children/ foreigners/ the infirm/ the disabled or the elderly is to deny the reality of our history. -- That ALL of the above were, in emergencies, duty bound -- and did defend our country from enemies foreign and domestic, -- is beyond rational dispute.
That only "the militia" [white, male, citizens, 18-45 years of age] were obligated to serve as troops [to execute the "Laws of the Union", etc, by Congress]; - did not absolve everyone else from their duties to defend the nation.
The Courts that claim the only "people" who are protected by the 2nd Amendment are militia members - [white, male, citizens, 18-45 years of age] are simply finding excuses to legitimize infringements by fed/state or local gov't.
Popular votes [majority rule] cannot 'outlaw' individuals who own arms, nor the arms that they own. -- Malum Prohibitum laws violate due process as per the 14th Amendment.
To suggest that the second amendment to the U.S. Constitution can be repealed is to deny a basic founding concept, - that our rights to life, liberty or property are inalienable.
Exactly - a point far too many people miss, and which took me a long time to figure out.
There is, however, one critical difference I'm getting increasingly torqued about.
Calling up the militia axiomatically presumes members thereof are already equipped and trained (whether by taxes or their own dime); they can serve, effectively, right now. A citizen has a duty, an interest, in being ready to defend self and nation at any moment.
A draft assumes participants are unequipped, untrained, and quite possibly unwilling. In many cases they have long been forbidden any suitable weapons, and will most likely not be allowed their own should they have any; they have no notion of where they will be assigned save "bullet sponge"; most will do what they're told, but that differs from enthusiasm. Conscripts may justifiably view a draft as "involuntary servitude" as they are treated as subjects compelled, not citizens serving.
Effective combat requires long training and familiarity with the arms used. Sure a conscript may get a few weeks' training with an M16 before combat insertion, but that's not enough to assure real confidence and effectiveness under stress. This country was founded on citizens who owned their own weapons, were familiar with them from youth, and thus had justifiable confidence in their abilities.
Ergo, the nuanced difference is:
- The Constitution allows for calling up any/all citizens* to defend the nation ... and guarantees the right of those citizens to arm & train themselves long before such service is needed.
- A draft, while on the whole the same as calling up the militia, presumes conscripts have neither arms nor training.
Personally, I've obtained certain arms & training on my own, so should I be "drafted" it would actually be a proper callup to service I am ready for.
A case could be made that: as the feds prohibit** ownership of ubiquitous military arms - the M16, M4 and such - in violation of the 2nd Amendment, then they have voided their power to call up the militia.
* - Yes, RP, I know you view that differently. Tough. The authors of the Constitution used the term "militia" for one purpose and "the people" for another, indicating they saw one as a subset of the other, and reserved RKBA for the larger set; also, 'tis oppressive to insist on reducing the current set of "citizens" to centuries-old limits, which so many have fought so hard to overcome.
** - Yes, if you are rich and/or connected you can buy a decades-old machinegun from a tiny and dwindling pool of used items subject to a 1200% (and growing) virtual tax. That is, for all practical purposes, a ban.
Quite. Whatever a “citizen” was a couple centuries ago, the Supreme Court has subsequently affirmed that the term is much more broadly encompassing now. Women, minorities, children, elderly - if born here, or were “naturalized”, enjoy the benefits and explicit rights of citizenship. Slavery has been abolished. Indians are included as citizens. Such all constitute “the people” today as a clearly accepted tenet of Constitutional law - an achievement which a great many people fought, suffered, and died to rightfully obtain in the face of wrongful oppression. The 2nd Amendment clearly states “the right of THE PEOPLE to keep and bear arms shall not be infringed”; whatever connection to discussion of a militia, that enumerated right is not linguistically dependent on the definition of “militia” or use thereof.
That the definition of “militia” is X is relevant only insofar as the Founding Fathers recognized that X would be a subset of “the people”. X is not specified in the Constitution, but only by subsequent subordinate legislation. The preamble to the 2nd Amendment makes clear that whatever a “well-regulated militia” is (leaving Congress to define relevant details later as circumstances dictate), it is best obtained by ensuring “the right of the people to keep and bear arms shall not be infringed”.
Yes, that means that my 9-year-old niece does have a right to her rifle (despite being both female and young), my aging father does have a right to his shotgun (though far beyond “militia” years), and I have a right to obtain an M4 (denied me despite being a “militia” member by law).
Insofar as anyone can have an enumerated Constitutional right revoked, it is a long-established standard that while possible, it only happens involving adjudication pursuant to specific circumstances involving a specific person - and then only so long as the circumstances persist. This is extremely far from what some contend, trying to minimize the scope of “the people” to an ill-defined subset of an oppressively restricted elite recognized hundreds of years ago. Better to think that the only restriction on the 2nd Amendment is - the 2nd Amendment (to wit: your enjoyment of the RKBA only goes so far as where my enjoyment of the same right gives me justification to shoot you; rephrased: you can have a gun, but if you point it at me I’ll see you don’t have it for long).
Elsewhere in the Constitution, harsh punishment is prescribed for those who conspire to deny rights to citizens. The 2nd Amendment enumerates a right enjoyed by all citizens; any, even states or cities, who move to infringe that right are subject to punishment unto execution.
The right is clear. That there may be nuances subject to arguable variance in interpretation does not detract to the clear intent and language of the enumeration thereof. Any language, if you argue hard enough, is subject to willful misinterpretation; those who insist on denying rights due to language weakness are enemies of the Constitution, our rights, and our nation - and, if they get pushy about it, will be treated as such.
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