Ninth Circuit Wrong...Again

http://www.americanminuteman.com ^ | February 10, 2005 | Mark Outland

[moutland]

When America's borders cease to exist as divisions of sovereignty, and become undefended and unprotected gateways allowing millions of poor, unskilled laborers to cross illegally and without apparent consequence, the rule of law and our country's stability are threatened. Beyond that, however, are the very real costs of such an invasion...

[moutland]

While most liberal scholars and pontificators place great emphasis on the First Amendment to the Constitution, inventing increasingly absurd "rights" protecting all manners of decadence and obscenity never intended or foreseen by our Founders, it could be comfortably argued that the next amendment among those ratified is actually our most important protection against governmental abuse. A recent U.S. Department of Justice report, written in August of 2004, but just released, tends to bolster this argument with the weight of the Federal government itself. In addition to bluntly stating that the Second Amendment to the Constitution recognizes a clear and undeniable right of each man to bear arms, it also goes a long way in slapping down the most dangerous and activist court in the land: The Ninth Circuit Court of Appeals.

One would think the judges on the Ninth Circuit Court of Appeals, the most liberal (and overturned) appeals court in the United States, would soon tire of being wrong so often. While accounting for 17% of all appellate cases heard throughout the United States, its decisions accounted for nearly half (43%) of all appellate cases reviewed by the Supreme Court, and of those cases reviewed in 2002, 75% were vacated in whole or in part. This shabby record of judicial incompetence was never more evident than in a December, 2002 decision regarding the California District Court case Silveira vs. Lockyer.

While the specifics of this case involved the ability of the State of California to control and ban so-called "assault weapons", the conclusions drawn by the Ninth Circuit were staggering in their scope. Not content to simply address equal protection claims, or the validity of state law with respect to firearms control, the activists of this rogue court took the opportunity to dismiss 200 years of Constitutional intent, and a thousand years of common law, and rule that the Second Amendment does not recognize an individual's right to bear arms.

Since the phrase "the people", such as in the First Amendment (and everywhere else in the Constitution) has always been interpreted as describing individuals and not governmental entities, this decision was unique. Suddenly, "the people" meant an exclusionary collective, more specifically a government controlled collective such as a state's National Guard. While this interpretation would appear fallacious and wrong-headed even to those not familiar with past court decisions, it is not completely unexpected. Leftist have always viewed the Second Amendment as a noxious irritant, and have done everything possible to undermine its recognition of the God-given right of self-protection and right to over-throw a dictatorial government. After years of practicing the former, and attempting the latter, one can easily see why the Framers and the States would be hesitant to place too much faith in any group of leaders, no matter how benign at the moment.

As contemporary writings clearly indicate, the Second Amendment was an answer to what many citizens saw as the new government's power and control over a "militia", a situation that made many very uncomfortable. Since the militia had always been the body of armed men, not attached to any governmental entity, a clarification was necessary to set the citizens at ease. While there could be a small cadre of trained military men under the control of the State, the Second Amendment was to clarify the difference between this "organized" militia, and the much larger and uncontrolled "unorganized militia". At the time, and still today in Federal Regulations, every man between the ages of 17 and 45 is automatically a member of militia, whether he wishes to be or not. This is the difference between common law, the peoples right to a militia, and the statutory law, the State's establishment of military cadres. This is a difference the Ninth Circuit refused to recognize, but that the Executive branch has made clear with this report.

While the report, written by assistant attorneys general from the Department of Justice, does describe the unsettled legal landscape, such as another recent Fifth Circuit decision that held the right to keep and bear arms as an individual right, its emphasis is on examining the Constitution itself, and the historical and contemporary influences on those who wrote it. This level-headed approach, repugnant to those who believe they know better than the men who framed it, details that when the Constitution says "the People", that is exactly what it means: the right of individuals. The report is very effective in making this common-sense argument, and is dismissive of the collective or quasi-collective rights interpretation, as it should be, since these arguments are irrational in the context of history and the intended outcome of individual liberty.

This report is also a refreshing disengagement from the previous administration, when Clinton's Justice Department attempted to destroy the rights of American gun owners in every conceivable way. Clinton and his party paid the price for this huge miscalculation, and Clinton himself has said that this position contributed directly to the Democrat's loss of the House and Senate. Mainstream America has rejected the gun-grabbers, and this was never clearer than during the recent election, when in order to have a fighting chance in fly-over country, Kerry swallowed his disdain and shaped himself into a faux pro-gun enthusiast, much to the discomfort of his supporters, who are as equally hostile to guns and those who own them as Kerry.

Americans can expect that this report, and Justice Department support, will assist in the long process ahead of dismantling unconstitutional gun bans around the country. As with the First Amendment, a right is only subject to reasonable and minimal restrictions. We would never allow certain words, ideas or thoughts to be banned because some people are offended. Since our Second Amendment so clearly recognizes our individual right to protection against tyranny, it is equally abhorrent to ban certain types of firearms, simply because they make some people uncomfortable.

[JimWforBush]

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