Gun Rights Aren't for District, Judge Rules

The Washington Post ^ | January 15, 2004 | Carol D. Leonnig

[AwesomePossum]

Please understand that I am a staunch defender and believer in the right to keep and bear arms, and I am also a staunch defender and believer in the U.S. Constitution, so.......

The second ammendment does not say that "no law respecting the keeping and bearing of arms shall be made", it just does not say that in the U.S. Constitution. It does say "shall not be infringed", (broken, violated, revoked.....either immediately or gradually)

But, just the Ninth Ammendment alone gives Congress the right to make laws concerning the Second Ammendment. And, the Second Ammendment does not void Article VI, Clause 2, or Article IV, Section 3, Clause 2, or Article I, Section 8, Clauses 17 and 18.

In addition, property owned by the federal government is subject to the laws made by Congress, and signed by the President. For example, you cannot wear a gun and just walk into the Oval Office, or the Halls of Congress, or a military base, or the District of Columbia, (if Congress so decides). Now, think about it. You probably own property, and I don't think you would allow just anybody to just walk into your house anytime they wanted to, with a gun in their hand, would you? Or cross over your land, anytime they wanted to, fully armed?

We are talking about property owned by the federal government, that the federal government is in charge of. Even though our taxes pay for it, it is not our property.

It is our duty as citizens to work tirelessly to see that the people who are sent to Congress and the state legislatures, and governors and presidents, and judges.....that they are people who will make, keep, and defend laws that fully protect our rights to keep and bear arms. One of the best ways we can do this is to weed out corruption in our governments, in our society, in our own families.

Probably the greatest fear of any politician is a calm, informed, resolute, large group of people, bent on seeing that things are done right. People who will not allow themselves to be corrupted with bribes or favors, but demand accountability throught the power of their voices and votes.

There is still time to do this in a peaceful way, without our weapons. Through our examples, our influence, our voices and votes, each one of us starting first with ourselves.

[djf]

I commend you on your rebuttal. If you can make sense of Downes, you are a better man than I. And while the section you cite is indeed quoted in the decision, these are the facts: Downes sued to recover a duty(tax) on sugar imports from Porto Rico, on the basis that as a duty, it did not meet the constitutional demands for uniformity. The end result of the suit, his claim was dismissed, because congress was not bound to adhere to uniformity out of the Union states. Judge Harlan even goes at length into this seeming inconsistency in his rebuttal. I do agree, and have read the Congressional record of the passage of the 1871 act (was that the first civil rghts act?). I think this was part of the legislation that incorporated the District of Columbia. Anyways, thanks for your thoughtful response!

[Technogeeb]

But, just the Ninth Ammendment alone gives Congress the right to make laws concerning the Second Ammendment

You've never actually read the Ninth amendment, have you?

[AwesomePossum]

How about if I give you an example of how the Ninth Ammendment might be used......A guy wants to start a religion, (a right protected by the constitution), but he believes that human sacrifice should be the sacrament each Sunday. The Ninth Ammendment prohibits this, (although some would say that abortion is this above mentioned "religion")because the Fifth Ammendment says that a person cannot be deprived of life, without due process of law.

Can you think of an example that might have to do with the right to keep and bear arms?

[El Gato]

"Constitutional restrictions and limitations were not applicable to the area of lands, enclaves, territories and possessions over which Congress had exclusive legislative authority."

All that means is that the Constitution gives Congress general powers over such areas. It does not mean they can violate the rest of the Constitution in those areas. They can't restrict free speach, habeus corpus cannot be denied, except as provided in the Constitution, and so forth.

[Technogeeb]

How about if I give you an example of how the Ninth Ammendment might be used......A guy wants to start a religion, (a right protected by the constitution), but he believes that human sacrifice should be the sacrament each Sunday. The Ninth Ammendment prohibits this

And this is exactly why I think it is clear that you've never actually read the 9th amendment. The ninth amendment gives no power to government whatsoever. All the ninth amendment says is that just because a right isn't enumerated (specifically listed, like the right to bear arms or the right to free speech), doesn't mean that right doesn't exist.

In other words, considering the two examples you have given so far, you have either never actually read the amendment or you have a serious reading comprehension problem.

[AwesomePossum]

Please enlighten me, with all respect, as to why there would be an ammendment in the constitution that would or could not be enforced? And if the 9th is to be enforced, by what power, if not the power assigned to enforce the constitution?

Also, I see nothing in the 9th about rights "not" enumerated, but I do see the description of rights that specifically "are enumerated", and the end of the clause does not say probable rights, or some future right, or rights not listed, or not yet listed, or someday to be listed........what the end of the clause really does say is "others retained by the people" using the past tense "retained", not soon to be retained or perhaps someday when we find some new rights......are you sure you are not confusing the 9th with the 10th?

Are you going by what the constitution really says or by someones' interpertation?

[Technogeeb]

Please enlighten me, with all respect, as to why there would be an ammendment in the constitution that would or could not be enforced?

What makes you think the 9th amendment can't be enforced? It is enforced (or at least used to be enforced) all the time by the courts, whenever some non-enumerated right is infringed upon by the government and the courts tell the government to stop doing whatever it is doing.

Also, I see nothing in the 9th about rights "not" enumerated

And that is why it is clear you have a reading comprehension problem. That's what "others" means in the context of "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people".

what the end of the clause really does say is "others retained by the people" using the past tense "retained", not soon to be retained or perhaps someday when we find some new rights......

That's because the founders aren't talking about "new" rights; just rights that were there all along. The authors wanted to make it perfectly clear that, just because a right was not listed, doesn't mean that the right does not exist or that the government can infringe upon that right.

are you sure you are not confusing the 9th with the 10th?

This is probably the basis of your confusion. You don't understand the difference between "rights" and "powers". The 10th amendment deals with powers, not rights like the 9th amendment.

[djf]

Here is perhaps the ultimate authority on the issue:

Territories: Powers of Congress Thereover
In the territories, Congress has the entire dominion and sovereignty, national and local, and has full legislative power over all subjects upon which a state legislature might act. It may legislate directly with respect to the local affairs of a territory or it may transfer that function to a legislature elected by the citizens thereof, which will then be invested with all legislative power except as limited by the Constitution of the United States and acts of Congress. In 1886, Congress prohibited the enactment by territorial legislatures of local or special laws on enumerated subjects. The constitutional guarantees of private rights are applicable in territories which have been made a part of the United States by congressional action but not in unincorporated territories. Congress may establish, or may authorize the territorial legislature to create, legislative courts whose jurisdiction is derived from statutes enacted pursuant to this section other than from Article III. Such courts may exercise admiralty jurisdiction despite the fact that such jurisdiction may be exercised in the States only by constitutional courts.

Annotated Constitution, 2002, prepared by the Congressional research service, pp 890-891

Congress did not create the District, it was created by the Constitution, and it is specificaly not a State of the Union

[XJarhead]

If I didn't know better, I'd suspect that you were expecting consistency from RAT judgest. Hah!

[AwesomePossum]

Thank you, Technogeeb, for your replys, and very good ones, too. You are correct in your thinking about the 9th, in the view of the "traditional interpertation". This is where I disagree strongly, and not so much with you, but with the current, (and past), thinking on the 9th.

This article, and subsequent posts are about, I believe, a federal judge overstepping in reguards to the Second Ammendment. I concur. And this is my point.........I do not believe the U.S. Constitution gives federal judges the right to decide law, (or, in other words, what a judge thinks the law should be).....I firmly believe that that right is specifically and clearly placed in the hands of Congress and the people.

When the constitution was being formed, there was plenty of conflict....some for slavery, some against....some for more states rights, some not....some for a stronger federal court, and those against.....etc., etc., etc. It got so bad, that Ben Franklin suggested that prayers should be offered regularly, and if I understand correctly, they were.

Now, Madison had his views, and many excellant ones, about what the constitution really meant before and after they finished writing it in September of 1787. And there were those who opposed Madison's views, with strong argument........and so on with other framers and other issues......there was much debate about areas that would eventually become the 9th Ammendment, also. George Mason walked out and didn't return.

We needed the constitution finished, it had to be finished. Notwithstanding slavery and individual rights, and a host of other issues, it was finished, (a work, I believe, that is the greatest government document ever written by the hands of men), and later ratified, leaving it up to future congresses to work out the details, the laws, the rights and powers. (I am sure, Technogeeb, that you have a very good knowledge of the history of the constitution, but there are some who read these posts that do not.)

Let me put it this way, if you bought a new car, and signed a contract of sale......it is not what the salesman told you as to what the contract really means that counts, not what the clerk told you that the contract says, not even what the owner of the dealership tells you about what the contract really means, (and, they could all be right or wrong in their advice)........very plainly, it is the very words in the contract, (the "law"), that really matters if you you find yourself in financial or legal difficulties.

I can find nothing in the constitution that gives the federal courts the right to create laws....also, I have yet to find anything that leads me to believe that the federal courts are supposed to be a check on the congress. The presidental veto, the voices of the people, and their votes are a check on the congress. In addition, the two house check each other, and even check themselves.

I firmly believe that it is the job of a congress, elected by the people, under a guaranteed republican form of government, to "make all laws". Therefore, I believe that it is the job of a congress to decide what the laws are in respect to the 9th, not some recent graduate of law school, through the supreme he or she happens to be "clerking" for. Now the key word in the 9th, I believe, is the word "retained". Retained not only means "in reserve", but also things "already listed". It is up to the congress to make the laws in respect to this ammendment, the Ninth Ammendment.

We have seen from years past, what the federal courts have done to darn near gut the constitution. Today, it only takes 5 unelected judges, contrary to a republican form of government, to, at times, actually "make the laws of this land". Even lower courts have been getting into the action, as this article on the Second Ammendment points out.

Marbury vs Madison was terribly flawed, and the supremes have been wrong about a host of other issues and laws....slavery....abortion, sodomy....education....free speech, and yes.....the Second Ammendment.

More guns mean less crime.

More conservatives make a better congress.

A better congress makes for a better America, except for those who want to break laws, spread disease, ruin the lives of children, and overthrow this government.....have I left anybody out?

[45Auto]

I don't think there will ever be an armed uprising over the loss of 2nd Amendment rights. People will give up their guns just like they did in Australia with nary a whimper. We all have too much to lose as we all have a tidy vested interest in our little bank accounts, our retirement portfolios and yes, even that criminal enterprise known as Social (in)Security. Over the last 100 years we have ALL been co-opted into the program. Do I like that? No, but I'm no spring chicken anymore; pre-emption is not an option for me. Unless pushed into something, I won't voluntarily give up arms, and I'll resist in as many ways as I can think of, but I'm sure as heck not going to start something on my own.

And that's where most people are on the issue when you get right down to it - if they are honest about it. And the damn politicos (including the corrupt judges - who are legion) know it. The Constitution no longer has any meaning to those elected to office. The RKBA has been changed to the PKBA and that isn't going to change anytime soon. No, I don't lik eit, but I don't see anyone running for office or currently in office who is willing to actually stand up for the RKBA when really pinned down. They, too, have a vested interest in the status quo.

[Sandy]

Looks like he was originally appointed by Reagan into the Judiciary.

Reagan appointed him to the D.C. Superior Court, not a federal court. Two different animals.

[MileHi]

Cache and train BUMP

[Technogeeb]

Apologies in advance for the truncation of your previous post in this reply; I simply felt it unnecessary to reply to the other points you made, because I generally agree with them in spirit.

I can find nothing in the constitution that gives the federal courts the right to create laws....

Of course not; let me make it clear that I do not advocate the current trend of "creating new rights from whole cloth" that many judges seem to practice, since most of those so-called rights are nothing of the sort. But that being said, the text of the 9th amendment remains very clear in that just because a right is not enumerated does not mean that such a right does not exist.

very plainly, it is the very words in the contract, (the "law"), that really matters if you you find yourself in financial or legal difficulties.

On that point I do not disagree, but the problem is that the text of the Constitution is very clear; in every case I have seen of people misunderstanding the document, it has been because of an inability to comprehend the English language (for example, those that try to assign "rights" to government instead of "the people" in the 2nd amendment, or those like FDR who take the "necessary and proper" phrase as a blank check when it explicitly only applies to the previously enumerated powers).

I firmly believe that it is the job of a congress, elected by the people, under a guaranteed republican form of government, to "make all laws". Therefore, I believe that it is the job of a congress to decide what the laws are in respect to the 9th

The problem here is that our federal government is NOT granted the power to "make all laws"; but only those that are necessary and proper to carry out the specific powers that are explicitly delegated to it. Even if that were not implicitly spelled out in the body of the Constitution itself (which it is, even though perversions of English and a general ignorance of the actual text of the document have allowed government to ignore that limitation), the 10th amendment (dealing with powers, not reserved rights as in the 9th amendment) makes the point in language that simply cannot be misinterpreted except by someone who either has questionable mental faculties (insert many Democrat and, unfortunately, many Republican politicians here) or who is engaged in deliberate deception (the vast majority of the remainder of those politicians previously mentioned).

Now the key word in the 9th, I believe, is the word "retained". Retained not only means "in reserve", but also things "already listed".

No it doesn't. "Retained" means to hold secure or intact, to keep (a person) in one's pay or in one's service, or to keep in one's possession. In the text of the 9th amendment, it is quite clear what is meant. The text of the amendment is about rights (not powers like the 10th), and the use of the word "retained" is to modify "others", which is specifically "other" rights other than those enumerated (1st, 2nd, etc.). The authors intended a clear statement to the effect that just because a right wasn't enumerated didn't mean the right didn't exist or wasn't protected; the people retained those other rights as well.

We have seen from years past, what the federal courts have done to darn near gut the constitution

This is certainly true, but it is no less true that the Congress has done a terrible job at conforming to the limitations imposed upon it by the Constitution. Similarly, the Presidents (including, sadly, our current one) have shown that they are more than willing to ignore the text; doing not only what the Constitution does not allow, but even going so far as to do such things that it specifically forbids ("CFR", for example).

In any case, I suspect we share a similar, if not common, view of the problems currently plaguing our current government. My initial reply should not be construed to suggest that I am opposed to your position, just the particulars by which you were advocating that position (specifically, the suggestion that the 9th amendment, a clause intended to secure individual rights not explicitly enumerated from the potentially tyrannical hand of government, could actually grant that government any actual power beyond securing those non-enumerated rights).

[El Gato]

While I find nothing to disagree with in the Congressional Research serve summary, they are hardly the ultimate authority when it comes to the meaning of the Constitution.

What all this means is that Congress is not limited to the *other* enumerated powers delegated to them in Art. I Sec. 8, it does not mean they are not subject to the Bill of Rights, not even the 10th amendment, since they have been delegated exclusive legislative power over the district. The people of the district are still part of the people of the United States, whose RKBA shall not be infringed, who have the right to petiotion the government and to freely assemble, and so forth.

Art. I Sec 8 grants them the 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 acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;"

Art IV

[El Gato]

Art IV

states:

The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States

It's not clear to me wether DC is a terrority belonging to the United States, but it hardly matters. This delegated power is what gives Congress the ability to legislate on general matters, as opposed to those enumerated in Art I, in respect to territories not part of any state.

Nonetheless, the Bill of Rights are amendments, and supercede the basic articles if there is a conflict.

[El Gato]

Just so we are all talking about the same amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The "others" would be unenumerated rights.

[Arthur Wildfire! March]

I’m no lawyer, but as I understand it, amendments trump the original Constitution. Thus, since the 2nd amendment is indeed an amendment, it amends — it changes.

It therefore hamstrings any government in the US from infringing on the right to bear arms.

I don’t blame our government leaders for trying to find loopholes to protect themselves; that is only common sense in a world of high tech fatwas and leftist fanatics. But so far as constitutional interpretation is concerned, we have strayed off that path for a long time. It’s gone way beyond any figment of common sense.