Of course, this has lately been replaced by crapola like considering international law for such decisions. As we all know, no good comes from that.
Posted on 02/18/2008 7:42:35 AM PST by ProfessorGage
With the Supreme Court’s decision to examine the constitutionality of D.C.’s gun ban, the nation once again turns to an intense examination of the wording of the Second Amendment. One way to understand an amendment whose words have confused generations is to study its somewhat confusing text. But another way is to examine at whose request the amendment was written.
For example, if 200 years from now constitutional scholars are trying to determine whether the Smith Tax Act of 2008 increased or decreased the taxes Social Security recipients paid on their retirement income, knowing that the act came into being as the result of pressure from AARP would pretty much end that debate.
This, then, is a vital question when seeking to understand the Second Amendment. For if you know the context in which the Amendment was written, if you know for whom it was written, if you know who was clamoring for it and what were their concerns, then that can help settle any argument of individual rights versus collective rights.
The Bill of Rights was written by Congressman James Madison to fulfill a promise made to the Anti-Federalists after pressure from that group had cost him a Senate seat — pressure brought to bear because of his opposition to amending the Constitution with a bill of rights. The Bill of Rights, then, as any history book will confirm, came into being to satisfy the single most suspicious, vociferous, and relentless foes of the new federal government.
That is the all-important context in which the Bill of Rights was created. The Anti-Federalists, men filled to varying degrees with fear, mistrust, and loathing of the new federal government, insisted on a bill of rights as additional shackles imposed on that new government. Knowing that alone, knowing that the famous Bill came into existence only to please those most apprehensive of the new government, definitively ends any confusion or debate surrounding the meaning of the Second Amendment.
There is simply no way on Earth the Anti-Federalists would have surrendered to the new and mistrusted government the right to own any gun they wanted at any time they wanted in any number they wanted.
To believe differently, to believe that the Second Amendment actually gives the federal government the authority to regulate firearms, one must believe the absolutely unbelievable. One must believe that the Anti-Federalists, fearing and loathing federal power, compelled Madison to compose this laundry list of rights, this list of things over which the government was to have no authority and, very near the very top of the list, these people in fear of the federal government desired a clause that reads, “Despite the fact that Article I, Section 8 does not empower you federal government people to infringe our firearms rights, we hereby correct that mistake and surrender to you a right which we previously held, but wish now to give away.”
We must further believe that James Madison was such a monumentally incompetent and abysmal writer that, when trying to give the federal government this new authority to regulate the private ownership of firearms, the last fourteen words of the Amendment read, “The right of the people to keep and bear arms shall not be infringed.”
We must also believe that revolutionary American history conceals some hitherto unknown and utterly undocumented groundswell of public desire for gun control.
Picture in your mind for a moment the rough-and-tumble individualist who gave birth to this nation, a man who had tamed a wilderness, fought Indian wars on and off for 180 years, and successfully faced down the world’s mightiest empire. Hold a picture of that man in your head for a moment and then try to imagine his being told that this new federal government would have the power to regulate his ownership of firearms in any manner it saw fit, including imprisoning him for possession of any firearm for any reason at any time.
No honest or serious person could ever claim to believe that any part of the American electorate in the 1700s desired federal gun control, let alone the Anti-Federalists who forced the creation of the Bill of Rights.
Rick Lynch is an author living in Virginia. He is finishing a book on constitutional issues entitled They Are Vicious. Send him email.
PING that!
I hope the book is not as wordy as this article.
Before he could get started a reporter stopped him to ask, “So what brings you to America?” The Martian responses, “Well, I was teased as a child and after I stopped taking my medication back on Mars I wanted some revenge.”
“Why take it out on American’s?” the reporter pushed back. “Because on Mars, everybody owns a gun.” Not quite sure what to say, the reporter asks in a matter of fact way, “Doesn’t everybody here in America own guns?” With a Martian chuckle, and his hand on the reporters shoulder, he answered, “Not everybody.”
As the Martian turned to walk away, the reporter shot back, “What do you mean?”
With a sinister grin, and his hands morosely caressing his brand new semi-automatic pistols tucked into his belt, the Martian quipped, “SCHOOLS! They’re gun free zones.”
This is good stuff.
I find it a bit amazing, really. I have NEVER seen the “argument from context” before — it’s always the definition of a militia, and some quotes from Jefferson and the boys on their views on firearms. I find this much more convincing. A suspicious and freedom-loving electorate is going to bring into existence a gov’t that can take its guns? BS!
In a way it is a “collective” right. I have the right to collect as many guns as I wish, regardless of my government’s fear of the same. And I will continue to do so limited only by my ability to pay a fair price.
In a way it is a “collective” right. I have the right to collect as many guns as I wish, regardless of my government’s fear of the same. And I will continue to do so limited only by my ability to pay a fair price.
sorry for the double post; sometimes I stutter.
Of course, this has lately been replaced by crapola like considering international law for such decisions. As we all know, no good comes from that.
Bump for a good article.
BTTT
Bump ... I hope and pray that the lawyers in this case do use this argument.
That’s EXACTLY what I was thinking! I’d love to see a liberal’s response to this argument. As a matter of fact, I’ll be trying it out later today. I wonder if the Supreme Court’s heard oral arguments yet.
but we are dealing with a lawyer class of people who don’t live in the real world. They only live in the vacume of courts, cable tv subscriptions, gourmet supermarkets and carbon credits really work. These are the people who in law school grew to believe the second amendment of the constitution was unconstitutional in this day and age.
Logic has NOTHING to do with this case, it is all about who is the judge making the decision. period. (see kelo)
The standard liberal response will be that the constitution is a ‘living, breathing document’ and that the courts should interpret it in whatever context fits liberal thinking.
You can counter by explaining that, using their interpretation, every civil right could be twisted to be restricted in any fashion a judge sees fit. However, that won’t work because liberals are incapable of systematic, multi-dimensional thought, i.e. they can’t understand the consequences of following their ‘logic’ beyond a single instance. Or, worse, they do understand it and want an all-powerful gov’t.
actually I have observing the “lawyer circles” response.
They are not worried because they believe ALL gun control, even outright bans, pass the required strict scrutiny test.
Thus it is an individual right which even under the strictist of tests can and shall be draconianly regulated for the public good. (its for the children)
You win and still lose.
Judges who consider international law for such decisions need immediate insertion of lead earplugs.
Bring them up to Nevada and I’ll give you my coupons for ammo.
When discussing guns, this phenomenon is known as a "double tap." You don't have a speech impediment, you are just making sure that the message came across loud and clear.
Pretty simple! ;)
ping
“actually I have observing the “lawyer circles” response.
They are not worried because they believe ALL gun control, even outright bans, pass the required strict scrutiny test.
Thus it is an individual right which even under the strictist of tests can and shall be draconianly regulated for the public good. (its for the children)
You win and still lose.”
_________________________________
“You can counter by explaining that, using their interpretation, every civil right could be twisted to be restricted in any fashion a judge sees fit. However, that won’t work because liberals are incapable of systematic, multi-dimensional thought, i.e. they can’t understand the consequences of following their ‘logic’ beyond a single instance. Or, worse, they do understand it and want an all-powerful gov’t.”
________________________________
Not all of us lawyers subscribe to that POV. In fact, an increasing number are of the view that the 2nd MUST affirm/protect an individual right, for the simple reason that no other “right of the people” would have any meaning if the 2nd is a “collective right” (which is a creature that I still cannot understand the existence of - what’s the purpose of a “right” that cannot be protected by a single person in a court?). Lots of intellectually honest attorneys (yes, some DO actually exist) understand this. In this particular context, you can look at Sanford Levinson (The Embarassing Second Amendment, http://www.firearmsandliberty.com/embar.html ) , Alan Dershowitz and Lawrence Tribe - extreme liberals in every other context - have come to this conclusion despite their inherent bias against an armed populace.
The Supreme Court Justices also understand that a ruling that the 2nd is “collective” will have a disasterous effect on the 1st, 4th and 5th Amendments. Further, such a ruling would **necessarily** mean that any state could immediately pass a law defining its own militia as all adult residents between 16 and 75 years of age, and require that they all appear for muster once a year with their personally-owned M16 or M4 or M249. It would, IOW, shred any federal gun control laws at the stroke of any governor’s pen.
All is not lost.
International law regarding firearms is not so one-sided as the gun-grabbers would have you believe:
http://www.thehighroad.org/showthread.php?t=339286
Except that the Supreme Court has been known to completely ignore the Constitution and its reason for being and instead rely on the laws of OTHER COUNTRIES! For that alone, the justices who did that ought to be impeached, removed from office, and disbarred.
Even the SCOTUS is limited by that one. If they doubt it, they do so at their careers peril.
I agree, very well written article.
Do any governors have the brass to do that, though. That’s a question that needs to be asked.
See the 2nd A. in the middle column of the following page from 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 ratification of the 14th Amendment. So Bingham was evidently reassuring his colleagues about the scope and purpose of the ratified 14th Amendment.
“Logic has NOTHING to do with this case, it is all about who...the judge(s) (are) making the decision(laws?). period.”
Don’t you think so?
Me too.
“Or, worse, they do understand it and want an all-powerful gov’t.”
It is worse yet. Re: form 1040 to read; How much did you make$_____, Send it in.
The gov’t can surely manage our money(lives, thinking, charitable giving, etc.) better than we individuals can anyway.
Many Americans own them.
Apostrophes are tricky?
Now that has some possibilities! What would happen if everyone who wanted his own M60 tank moved to the same state one day and then called a special election to enact just such a provision. I'll tell you one thing, my new house would have a very large garage and a dirt path leading right out to the range!
Semper Fi
An Old Man
That's what the Free State project is supposed to be about - flooding 1 state (presumably small and liberty-oriented to begin with) with about 20,000 additional liberty lovers, in an attempt to create a state that will follow the Constitution as intended, in order to maximize liberty. It is supposed to be a beacon to the rest of the states.
I'd LOVE to see something like this happen IF Heller turns out bad...but, of course, I would much rather a win in Heller so that federal gun bans are shown to be utterly unconstitutional. Then someone can go after the states on 14th Amendment grounds.
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