Posted on 03/04/2009 11:58:17 AM PST by TenthAmendmentChampion
It should go without saying that liberals aren’t the only ones who would suffer buyer’s remorse were we to accept a text-only Constitution as our lot. Consider an act of Congress-the “Above-Average Gun Violence Act”-that requires any city in the United States with a higher-than-average annual per capita rate of violent crimes involving the use of firearms to enact, within one month of the Justice Department’s release of the relevant annual figures, a gun control law (i.e., a law regulating the purchase, sale, and possession of firearms) that has been submitted to, and approved by, the attorney general, who in turn is directed to approve no gun control law that is not “at least as strict as that of the city or county in the United States with the lowest annual per capita rate of violent crime involving the use of firearms.” Would such a congressional enactment be constitutional? Can the question be answered by looking at the imaginary statute on its face, or would the answer depend on whether the statute was being applied to a city other than the nation’s capital, the District of Columbia?
As to the District of Columbia, there would be no difficulty finding an affirmative source of the authority being exercised by Congress. It would be the Article I, section 8, clause 17, stating that “Congress shall have Power To…exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Accepting of Congress, become the Seat of the Government of the United States.” Whether acting directly, or through power it has delegated to the District of Columbia government, Congress is affirmatively authorized to regulate economic and social life throughout the nation’s capital, and thus to direct those whom it entrusts with governmental power over Washington, D.C., to adopt the firearms measures specified in the Above-Average Gun Violence Act-subject, of course, to any limitations we conclude the Second Amendment imposes on laws enacted by Congress.
As for other cities, it is at least strongly arguable that Congress, acting pursuant to the Commerce Clause, would be exercising one of the “powers…delegated to the United States by the Constituion,” as the Tenth Amendment requires. The inclusion in the statute of firearms “possession” along with “purchase” and “sale” would, at least under modern precedent, be justified by the power of Congress, conferred by Article I, section 8, clause 18, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” on the theory that Congress could reasonably deem federal control of possession essential to effective enforcement of a federal ban on purchase and sale-a theory articulated most recently by Justice Scalia in connection with the congressional ban on the possession as well as sale of marijuana, even under close supervision by a state that permits medically licensed marijuana use.
At most, however, this analysis establishes that the imagined federal statue falls within the affirmative authority of Congress under the Constitution, leaving open the question whether the statute nonetheless runs afoul of some negative constitutional prohibition.
The most obvious one would seem to be the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bare Arms, shall not be infringed.” Does the statute “infringe” that Second Amendment right?
There is precious little judicial precedent, but a mass of academic writing addresses the meaning and scope of the Second Amendment, with a majority of scholars concluding that it is only each state’s “well regulated Militia” that the Second Amendment protects from federal interference, and a minority arguing that the preamble’s reference to the necessity of a “well regulated Militia” should not render irrelevant or totally dilute “the right of the people”- even as individuals unconnected to any organized state military force-”to keep and bear Arms.” Sorting through this body of precedent and scholarhsip would be well beyond the point of this book; it suffices here to recognize that neither pole in this ongoing debate can point to decisive textual support for its conclusion and that both must rely on sources of meaning well beyond the visable text.
A District of Columbia statute undergoing judicial challenge as of the writing of this book raises the question whether, whatever else it might mean, the Second Amendment has either no application or at most a far less obust application to congressional measures to regulate firearms traffic, possession, and use in the nation’s capital. Even if the preamble of the amendment is not read to limit its reach to weaponry in the hands of state militias as such, that preamble might well be read to limit the amendment’s reach to federal control of firearms in the hands of citizens in the several states, as opposed to federal control of firearms in distinctly federal territoris, and especially in the seat of the federal government. If that reading were adopted, then the imagined statute would seem to pose no great constitutional difficulty in its application to the District of Columbia. But what of its application to New Orleans or Dallas or Los Angeles?…
the blog is biased. when I tried to submit my post it said “awaiting moderation”.
I didn’t try to post a response. Guess what replies will be displayed? Darn.
Tuesday, Sept. 28, 2004 Al Gore's Egghead Laurence Tribe Admits Plagiarism Harvard law professor and Democrat activist Laurence Tribe, who abetted Al Gore's failed coup attempt in 2000, has been caught in more misbehavior: plagiarism. He admitted in a statement Monday that his 1985 book, "God Save This Honorable Court," cribbed heavily from Henry Abraham's 1974 book, "Justices and Presidents," including an entire 19-word passage, the Associated Press reported today. http://archive.newsmax.com/archives/ic/2004/9/28/101832.shtml
Like I said, the blog is cooked to achieve the goal that they want.
As always, the main reason for the 2nd amendment was completely ignored. Every time a liberal hears the fact that the second amendment was put in place as a safeguard to allow citizens to overthrow their own government if it oversteps its bounds they roll their eyes and give that “are you really so stupid” look. They then ignore what you have just told them and procede to trot out the old ‘definition of militia’ argument as if it is only natural that entrusting the job of overthrowing the government should be assigned to a government controlled entity.
My response just got posted, give it a try.
Woohoo, have at it FReepers!! Especially if you can post a reasoned defense of the second amendment!
"The right of the people to keep and bear arms shall not be infringed" is a mandate which was added to clarify that nothing in the original text of the Constitution was intended to infringe that right.
We certainly have no intention of allowing you, or your leftist politician friends, to inhibit our rights in any way.
The most you can accomplish is making us outlaws? Are you really ready to deal with the results of that?
I think not.
Larry, you need to get out in the country more. Maybe trade the Beemer 7 series for an old Dodge and learn something useful.
Meanwhile, ponder the meaning of the logo on this hat.
I probably won’t bother with trying to post on his blog, but were I to do so, it would read:
Remember Mr. Tribe, that your arguments concerning the power to legislate abridgement of the right to keep and bear arms would apply as well to the following hypothetically proposed federal law:
“Anyone who criticizes the Preisdent of the United States within the confines of the District of Columbia in a way deemed offensive to the effective implementation of Good Government as defined by the Attorney General shall be subject to a term of imprisonment not to exceed 25 years, a fine of $1,000,000, or both such fine and imprisonment”
After all, the 1st Amendment and the 2nd Amendment are situated close together in the same document, no?
Does he include these in the "hints and clues"?:
“No free man shall ever be debarred the use of arms.” - Thomas Jefferson“The strongest reason for the people to retain the right to bear arms is, as a last resort, to protect themselves against tyranny in government” - Thomas Jefferson
“Laws that forbid the carrying of arms...disarm only those who are neither inclined nor determined to commit crimes...Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” - Thomas Jefferson
"...I ask, who are the militia? They consist of now of the whole people, except a few public officers." - George Mason
Wished I had been that eloquent, but I did take the time to explain the real purpose of the 2nd Amendment. Even suggested that they read the Federalist papers if they needed proof.
a: would run into HUGE issues. MI, for example: detroit would be one of the first cities to have to enact such a law, and that’d go against MI law that states that no locality can enact a firearms law more strict than state law. i’m sure there are other states with similar laws.
b: it would backfire on them anyway. “at least as strict as that of the city or county in the United States with the lowest annual per capita rate of violent crime involving the use of firearms.” would probably lead them to a city in vermont or alaska that has no restrictions, or possibly that city down south that requires every home to have a gun.
This is my post on the blog:
the right to keep and bear arms isn’t exclusively about hunting or self-defense, although these are an important part of it.
The right to keep and bear arms is the realization of the Founding Fathers that citizens had to have a way of protecting themselves from a tyrannical government.
If you doubt this, read the Federalist Papers.
Saw no other comments.
The poster is wrong. The Persians succeeded in disarming the 300 Spartans.
It was at the cost of 20,000 Persians, but they did succeed.
The questions are:
1) Are the Spartans willing to pay the price?
2) If the Spartans are willing to pay the price, are the Persians willing to pay the price?
check #16. I think that is a reasoned response, don’t you agree?
Well, this Spartan is willing to pay the price and even better is able to extract the full price from every Persion within range, if it comes down to it.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.