Posted on 05/12/2002 4:10:21 AM PDT by The Raven
TANFORD, Calif. — The Bush administration has found a constitutional right it wants to expand. Attorney General John D. Ashcroft attracted only mild interest a year ago when he told the National Rifle Association, "The text and original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms."
Now, briefs just filed by Solicitor General Theodore Olson in two cases currently being appealed to the Supreme Court indicate that Mr. Ashcroft's personal opinion has become that of the United States government. This posture represents an astonishing challenge to the long-settled doctrine that the right to bear arms protected by the Second Amendment is closely tied to membership in the militia.
It is no secret that controversy about the meaning of the amendment has escalated in recent years. As evidence grew that a significant portion of the American electorate favored the regulation of firearms, the N.R.A. and its allies insisted ever more vehemently that the private right to possess arms is a constitutional absolute. This opinion, once seen as marginal, has become an article of faith on the right, and Republican politicians have in turn had to acknowledge its force.
The two cases under appeal do not offer an ideal test of the administration's new views. One concerns a man charged with violating a federal statute prohibiting individuals under domestic violence restraining orders from carrying guns; the other involves a man convicted of owning machine guns, which is illegal under federal law. In both cases, the defendants cite the Second Amendment as protecting their right to have the firearms. The unsavory facts may explain why Mr. Olson is using these cases as vehicles to announce the administration's constitutional position while urging the Supreme Court not to accept the appeals.
The court last examined this issue in 1939 in United States v. Miller. There it held that the Second Amendment was designed to ensure the effectiveness of the militia, not to guarantee a private right to possess firearms. The Miller case, though it did not fully explore the entire constitutional history, has guided the government's position on firearm issues for the past six decades.
If the court were to take up the two cases on appeal, it is far from clear that the Justice Department's new position would prevail. The plain text of the Second Amendment — "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed" — does not support the unequivocal view that Mr. Ashcroft and Mr. Olson have put forth. The amendment refers to the right of the people, rather than the individual person of the Fifth Amendment. And the phrase "keep and bear arms" is, as most commentators note, a military reference.
Nor do the debates surrounding the adoption of the amendment support the idea that the framers were thinking of an individual right to own arms. The relevant proposals offered by the state ratification conventions of 1787-88 all dealt with the need to preserve the militia as an alternative to a standing army. The only recorded discussion of the amendment in the House of Representatives concerned whether religious dissenters should be compelled to serve in the militia. And in 1789, the Senate deleted one clause explicitly defining the militia as "composed of the body of the people." In excising this phrase, the Senate gave "militia" a narrower meaning than it otherwise had, thereby making the Ashcroft interpretation harder to sustain.
Advocates of the individual right respond to these objections in three ways.
They argue, first, that when Americans used the word militia, they ordinarily meant the entire adult male population capable of bearing arms. But Article I of the Constitution defines the militia as an institution under the joint regulation of the national and state governments, and the debates of 1787-89 do not demonstrate that the framers believed that the militia should forever be synonymous with the entire population.
A second argument revolves around the definition of "the people." Those on the N.R.A. side believe "the people" means "all persons." But in Article I we also read that the people will elect the House of Representatives — and the determination of who can vote will be left to state law, in just the way that militia service would remain subject to Congressional and state regulation.
The third argument addresses the critical phrase deleted in the Senate. Rather than concede that the Senate knew what it was doing, these commentators contend that the deletion was more a matter of careless editing.
This argument is faulty because legal interpretation generally assumes that lawmakers act with clear purpose. More important, the Senate that made this critical deletion was dominated by Federalists who were skeptical of the militia's performance during the Revolutionary War and opposed to the idea that the future of American defense lay with the militia rather than a regular army. They had sound reasons not to commit the national government to supporting a mass militia, and thus to prefer a phrasing implying that the militia need not embrace the entire adult male population if Congress had good reason to require otherwise. The evidence of text and history makes it very hard to argue for an expansive individual right to keep arms.
There is one striking curiosity to the Bush administration's advancing its position at this time. Advocates of the individual-right interpretation typically argue that an armed populace is the best defense against the tyranny of our own government. And yet the Bush administration seems quite willing to compromise essential civil liberties in the name of security. It is sobering to think that the constitutional right the administration values so highly is the right to bear arms, that peculiar product of an obsolete debate over the danger of standing armies — and this at a time when our standing army is the most powerful the world has known.
Jack Rakove is a professor of history and political science at Stanford Uni versity and the author of ``Original Meanings: Politics and Ideas in the Making of the Constitution.''
The intent of the Constitution was to overcome the weakness of the Articles of Confederation while minimizing the power of a central government. It was only after the election of FDR and the infusion of socialists into his administration, starting with Eleanor, that the Federal Government grew all powerful.
The framers realized that as Thomas Jefferson so eloquently stated in the Declaration of Independence that “…when a long train of abuses and usurpations perusing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and provide new Guards for their future security.” The terms “them and their” refer to the God given rights of life, liberty and the pursuit of happiness that can be secured when men institute governments to do so. If the new Guards could not be accomplished through elections then the last resort would be armed removal by the citizens.
A man with a gun is a citizen, A man without a gun is a subject.
Let me ask this pressing question; if the right to bear arms were not a individual right then who are the citizens the state would call upon to form the well regulated militia necessary for the states security. Is there security in calling upon un-armed citizens to join the militia?
We can know from Article 1, Section 8 of the Constitution that the government had already been granted the enumerated power to operate a military.
Clause 11:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
Clause 12:
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
Clause 13:
To provide and maintain a Navy;
We can know from Article 1, Section 8 of the Constitution that the government had already been granted the enumerated power to raise a militia.
Clause 15:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
Clause 16:
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
From this we can ascertain that the Second Amendment was written solely to protect the individual citizen's inherent right to defense. This becomes obvious since no one other that the individual remains to be defended as the defense of the state and the country are already covered in the Constitution.
Again, since the libs need to really stretch on this one, why not take the legal way out and push for repeal of the second amendment?
Why...because they don't have the votes. So they need to sneak it in. Some day, some Supreme Court will be all left and the libs will have a field day that will make Roosevelt's court look conservative. We the people, need to have a Constitutional convention absent the collectivists and make everything crystal clear.
The libs cannot operate under the current Constitution.
If libs simply ignore the parts of the Constitution they don't like, I suggest we simply ignore their "court decisions."
Gun Control Hall of Fame: Jack Rakove, Academic Hero of Gun Control 
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Our founders including the beloved Adolf Hitler Professor Jack Rakove clearly favors sensible gun control in the industrialized nations such as the United States. Jack Rakove is a Pulitzer Prize winning Stanford University professor and he correctly says that gun control is constitutional and gun rights are not an individual right. Professor Rakove also joined Stanford colleague David Kennedy and 400 other scholars signing a letter opposing impeachment of President Clinton, a modern hero of gun control. Professor Kennedy and Professor Rakove also took on the gun lobby and Charlton Heston. To bolster his credentials in gun control law, Dr. Rakove also received a courtesy appointment as Professor of Law from Stanford University. Professor Rakove is Jewish, but his university training and Pulitzer Prize winning intellect has enabled him to overcome the cruel gun lobby myth that Adolf Hitler confiscated Jew's guns. As a leading academic light at California's top private university, Professor Jack Rakove is also a member of California Gun Control Hall of Fame.
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 Jack Rakove
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Or they can emigrate. Britain, Australia...?
I think the whole problem is that people don't read the whole amendment or understand that it Mandates a well armed and trained Civil Militia, and that Congress should fund this. Both sides are wrong. A totally disorganized bunch of people with guns isn't going to withstand a tyranny. They really do need to be organized, armed - with arms kept in the home to be ready - and trained, and have a known and ready communications system and command structure.
But the National Guard is NOT the civil militia. That's pure baloney. A real civil militia would involve all or at least a good majority of able bodied citizens, for one thing, and the national guard doesn't. They would be citizens, not soldiers, and not subject to federal command structure. That's one way the Swiss have always kept out invaders.
A proper civil militia would not be under the aegis of the feds, and not be trained and use protocols from the standing army. It would be entirely separate, the idea being that the standing army, which by ancient custom should not be used inside our borders, is complementary to a group that would defend us inside our borders. Although they could certainly work together in the case of an outright invasion, unlikely as that is. Although maybe someday we'll be weak enough to invade once we give all our wealth and manufacturing power to the NWO.
Right now the national guard is just a subsidiary of the standing army -- same uniforms, same training, same chain of command. Which means they are brainwashed and likely to take Army orders descending from the government even if such orders violate the constitution. Especially since current day education leaves people so ignorant most think the Constitution is a rock band.
That would also quell the tiresome complaint that every juvenile idiot can buy a handgun to show off and play around, but may know nothing about safety or respect for the weapon or one of it's major purposes of true civil defense. They would have to learn about the darn things, along with strategy and tactics, as part of their civil militia training.
I have always been skeptical of this idea that each individual could take the the woods like Rambo, and hold off the Army. On the other hand, a well-trained civil militia, that had organization and communication, weapons and strategies and emergency procedures, could be an instant insurgency force if necessary. Just their existence would make tyrants think twice.
I think both the left and the right are wrong on this one. The first order is to fund, form, arm and train a true Citizen Militia, and stop this lie that the Army National Guard is any such thing. It's more like the duty to bear arms rather than the right to bear arms. Everyone isolates the two parts second amendment to beat their own drum, but it's obviously an independent and dependent clause. It clearly relates the establishment of a civil militia to the right to bear arms. The reason for the confusion on Both sides is that we don't have a real civil militia, and there is no way I will buy the lie that the Army National Guard is one.
Important Quotes which Validate Our Rights to Keep and Bear Arms:
"And that the said Constitution be never construed to authorize Congress … to prevent the people of the United States, who are peaceable citizens, from keeping their own arms…" - Philadelphia Independent Gazetteer, August 20, 1789
"To preserve liberty it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them …" - Richard Henry Lee writing in Letters from the Federal Farmer to the Republic (1787-1788)
"On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." - Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p 322
"The right of the people to keep and bear arms has been recognized by the General Government; but the best security of that right after all is, the military spirit, that taste for martial exercises, which has always distinguished the free citizens of these States … Such men form the best barrier to the liberties of America." - Gazette of the United States, October 14, 1789
"The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals … It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." - Albert Gallatin of the New York Historical Society, October 7, 1789
"… the people have a right to keep and bear arms." - Patrick Henry and George Mason, Elliot, Debates at 185
"No Free man shall ever be debarred the use of arms." - Thomas Jefferson, Proposal Virginia Constitution, 1 T. Jefferson Papers, 334 (C. J. Boyd, Ed., 1950)
"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." - Tench Coxe in "Remarks on the First Part of the Amendments to the Federal Constitution." Under the pseudonym "A Pennsylvanian" in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1
"The Constitution shall never be construed … to prevent the people of the United States who are peaceable citizens from keeping their own arms." - Samuel Adams, Debates & Proceedings in the Convention of the Commonwealth of Massachusetts, 86-87
"The people are not to be disarmed of their weapons. They are left in full possession of them." - Zachariah Johnson, 3 Elliot, Debates at 646
"A free people ought … to be armed …" - George Washington, speech of January 7, 1790 in the Boston Independent Chronicle, January 14, 1790
"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops…" - Noah Webster, "An Examination into the Leading Principles of the Federal Constitution" (1787) in Pamphlets on the Constitution of the United States (P. Ford, 1888)
"To disarm the people [is] the best and most effectual way to enslave them …" - George Mason, 3 Elliot, Debates at 380
"Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms." - James Madison, The Federalist Papers # 46 at 243-244
"The best we can hope for concerning the people at large is that they be properly armed." - Alexander Hamilton, The Federalist Papers at 184-8
"The great object is that every man be armed. Everyone who is able might have a gun." - Patrick Henry, 3 Elliott, Debates at 386
"A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks." - Thomas Jefferson, Encyclopedia of T. Jefferson, 318 (Foley, Ed., reissued 1967)
"The supposed quietude of a good man allures the ruffian; while on the other hand, arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside … Horrid mischief would ensue were one half the world deprived of the use of them …" - Thomas Paine, I Writings of Thomas Paine at 56 (1894)
"Arms in the hands of citizens [may] be used at individual discretion… in private self-defense …" - John Adams, A Defense of the Constitutions of the Government of the USA, 471 (1788)
"A militia, when properly formed, are in fact the people themselves … and include all men capable of bearing arms." - Richard Henry Lee, Additional Letters from the Federal Farmer (1788) at 169
"What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty." - Rep. Elbridge Gerry of Massachusetts, I Annals of Congress at 750 (August 17, 1789)
"I ask, sir, what is the militia? It is the whole people, except for a few public officials." - George Mason, 3 Elliott, Debates at 425-426
"The right of the people to keep and bear … arms shall not be infringed. A well-regulated militia, composed of the people, trained to arms, is the best and most natural defense of a free country …" - James Madison, I Annals of Congress 434 (June 8, 1789)
"We will preach the truth to a new generation: The doorway to all freedoms is framed with muskets. It's time the apologists step aside and let freedom's followers lead the way." - Charlton Heston, President, National Rifle Association
So True! Note how the gun grabbers never quote the Founding Fathers at all. They don't dare.
I keep tellin' ya and tellin' ya: the Second Amendment contains only a single comma!
--Boris
A citizen militia is just that -- an organization citizens form for military purposes. It's not up to the (or a) government to do that, fund it, or run it. It's something that's formed due to a perceived exigency on the part of citizens. In the event that such becomes necessary to protect freedom, the likely adversary would be "A" government, maybe our federal government, but maybe an invading military power or just a gang of pirates. The 2A merely guarantees that under no circumstances is any government of the U.S. (federal, state, or local) permitted to deprive citizens of their right to own, keep, and bear swords, guns, etc., which they might use, at their individual discretion to protect and defend themselves. If King George decided to take back the "Colonies" in 1812, it wasn't going to be a simple matter of sacking the government, then marching through the land announcing that Americans were again British subjects without first having to contend with all the muskets, etc., that were privately owned.
During WWII, one of the Japanese leaders opined that they couldn't invade the U.S. because there would be an American with a rifle behind every bush. The 2A is a guarantee against ANY government that messing with me or us isn't going to be easy.
If I choose to join an ad hoc militia, that's my business just as owning military implements is. In 1789, the Constitution was ratified that restricted the governments formed under it from infringing upon my right to privately own and bear arms. The government can't take away my fleshly arms without individual due process nor can it take away my extended arms without individual due process.
It's really not a hard concept, and I'm sure you'll be able to understand it....
About a year ago I read where arch liberal Michael Kinsley reported that he had thoroughly researched the rationale and wording of the 2nd Amendment and subsequent court decisions...From http://www.sodabob.com/Constitution/quotes.asp:
...Michael Kinsley"The purpose of the First Amendment's free-speech guarantee was pretty clearly to protect political discourse. But liberals reject the notion that free speech is therefore limited to political topics, even broadly defined. True, that purpose is not inscribed in the amendment itself. But why leap to the conclusion that a broadly worded constitutional freedom ("the right of the people to keep and bear arms") is narrowly limited by its stated purpose, unless you're trying to explain it away? My New Republic colleague Mickey Kaus says that if liberals interpreted the Second Amendment the way they interpret the rest of the Bill of Rights, there would be law professors arguing that gun ownership is mandatory."
-- Washington Post, January 8, 1990
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