Posted on 06/02/2004 12:44:36 PM PDT by neverdem
Richard Skidmore is a professor at Los Angeles Pierce College, Woodland Hills, California, having taught at Pierce College since 1975.
O’ Hear ye, the 9th U.S. Circuit Court of Appeals has ruled in their December decision that the Second Amendment of the Constitution was not adopted "to afford rights to individuals with respect to private gun ownership or possession."
The left hails this courts decisions as decisive and correct, while the right sees the court as a bulwark to destroy our republican form of government and forging the links in chains of usurpation. Remember, this is the same federal court that declared the Pledge of Allegiance an unconstitutional endorsement of religion and has a record of more decisions reversed than any other court.
Have these judges made a sound judicial decision or legislated from the bench? The answer is in our history, our Constitution and especially the Second Amendment, a part of our "Bill of Rights." Some may think that surely this is a trick question that only a judge can divine. However, I assure you that the answer is meant for the common man in jury to resolve.
Judge for yourself, the Second Amendment states: "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."
Today’s media debates are often pro-gun and anti-gun advocacy matches. But reviewing the debates that confirmed our Constitution and our "Bill of Rights" we recognize that today’s debates are similar to those of 1787: Should we have a federal government that is overreaching and infringes on individual liberties or should the individual be protected and the federal government be limited?
Indeed I hear your question: Where can I find the answer to a limited or infringing government which in turn can resolve the debate on gun control and determine if the 9th Circuit Court gets an A or an F in its decision?
The answer is in two books, "The Federalist Papers" and "The Anti-Federalist Papers." One may obtain them at any quality bookstore, each at under $10.
Federalists sought a central federal government to assure a "more perfect union," with the benefits that an energetic government would bring in commerce and prestige much as England had. James Wilson, Supreme Court Justice and signer of both the Declaration of Independence and the Constitution, saw with particular clarity, strong government could as much serve the people when controlled by them as it could injure them when it was hostile.
Anti-federalists were skeptical of any new constitution and saw the federalist hopes as lust by ambitious men for a "splendid empire" where, in the time-honored way, "the people would be burdened with taxes, conscriptions, and campaigns." They saw the enlarged powers of any central government as familiar threats to the rights and liberties of the people.
Be not mistaken in this, Federalists understood the need to limit the powers of government having endured the long struggle to end the "tyranny" of kings and wanted insurance that government would be faithful to the people, stable, and filled with wisdom in its enactments.
As the debate over the new Constitution progressed, anti-federalist objections crystallized into specific proposals for amendments that would assure the new federal governments limited powers. In some state conventions, these amendments were insisted upon prior to their ratifying the Constitution. Their proposals being similar in nature were later included as the first ten amendments, which we call "The Bill of Rights."
Consider Virginia, in 1788, offered 20 amendments for consideration.
Its 17th states: "That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power."
Similarly Pennsylvania, upon ratification, issued 14 recommended amendments and the 7th reads: "That people have a right to bear arms for the defense of themselves and their own state … and that the military shall be kept under strict subordination to and be governed by the civil powers."
Considering our recorded history, one could reasonably ask: Did the 9th Circuit judges abrogate the history of our nation, ignore the grievances that compelled us to separate from England, discard the debates of the Federalists and Anti-federalists, legislate from the bench which is not their responsibility, and thus compel another re-writing of our natural history to justify their decree, relying on the general ignorance of the people to allow their decisions to stand? A simpler question is: What part of "shall not be infringed" is not understood?
Richard Skidmore is a professor at Pierce College in Woodland Hills, Ca. He may be contacted at rskidmor49@excite.com.
© Copyright 2003 by Magic City Morning Star
And RP is still not responding to the direct quote from the ratification debates in the Senate describing the 14th Amendment as applying the first 8 items in the BOR to the states.
IOW, you don't really know, and holding up that rejection as proof the the FF never intended the BOR to apply to the States is an empty bluff.
More completely the First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging THE FREEDOM OF SPEECH, ..."
Does this not clearly refer to a pre-existing right? Is there some place in the US Constitution which creates such a right? From whence did it come? The notion that states may infringe rights which the US government may not infringe is a prescription for tyranny.
I could give a FF what politicians say when they introduce an amendment.
I remember Hubert Humphrey: "If this affirmative action bill turns into a racial quota bill I'll eat my hat."
BWAHAHAHAHAHA!
I see. 100 years of violating the first ten amendments are going to be stopped by writing another amendment?
THAT'S your argument?
The Ninth Circus Court has a language barrier.
True, and most of the amendments as well.
But the USSC has not incorporated the 2nd amendment, the 3rd amendment (though the lower federal courts have spoken on this issue -- see Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982)), the "Grand Jury" clause of the 5th amendment, and the 7th amendment. Those apply only to the federal government, not the states.
Any laws passed under those amendments would only apply on federal property and only be enforceable by federal agents.
The way to interpret the meaning of a constitutional provision or amendment is to determine its original intent. The literal words are important but not always sufficient - the founders recognized this and courts operate properly on this principle today. The literal interpretation school which you are now espousing is in error.
But he doesn't care. He'll just keep spouting cite after cite of recent COURT rulings. One error compounding the next until we would be "legally" seen to have no Right ot Rights.
The BOR's always applied. The 14th was passed to put a stop to violations of them [the RKBA's in particular] by various States.
BWAHAHAHAHAHA! I see. 100 years of violating the first ten amendments are going to be stopped by writing another amendment? THAT'S your argument?
That was the obvious intent of the 1868 Congress that wrote it, paulsen.
Why is it funny to you that the 14th has been ignored? Is our RKBA's a joke with you?
Can you come up with a rational answer?
No. The USSC said nothing about "privileges and immunities" in the above case. The "P&I vs. due process" argument is a separate subject. And it is not an unalienable right -- it may be regulated. They stated:
"For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States."
"You seem relatively content to describe "what is" whereas some of us feel justified in dealing with "what should be"."
I don't care if you want to deal with "what should be" as long as you give me your reasoning behind it and "why" it should be.
What I object to are people telling me, for example, that the BOR applied to the states when what they mean is that the BOR should apply to the states. Big difference.
It may seem an "appeal to the club" argument to echo what spodefly said earlier "Any attempt to rewrite the 2nd Amendment is cause to USE the 2nd Amendment." But that's what I think, one way or another.
"Madison urged that “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases,” but this was rejected apparently because Congressmen wanted a bill of rights applying only to the central government, not the states."
I believe what I see in the amendment itself, not what some politician says it says in order to get it passed.
Certainly you're smarter than that. Tell me you read the amendment rather than what some politician says about it.
Yes it would be, that's for sure, no doubt about it. So? You got a point?
It doesn't change the fact that Congress used the Commerce Clause instead of the second amendment. One would think that if one were writing a constitutional gun law, one would use the second amendment as justification, yes?
If the second amendment applies to the states, why didn't Congress write the 1968 GCA and 1994 AWB (and the Gun Free Schools Act) under it instead of the Commerce Clause? Can you answer that?
You are ignoring basic principles of constitutional interpretation. That there are more than one school (originalist, literal, ...) is a fact. Not all are right.
So the whole "Right to keep and bear arms shall not be infringed" with no modifier mentioning WHO would be doing the infringing doesn't count? Militia's were called up by the governor of a State. In times of National emergency, the President was to call upon the Governors to call up the militia's.
So how the hell does THAT square with your perverted reasoning?
Hustle on back to DU where you belong. You are wasting webspace here.
True, and most of the amendments as well. But the USSC has not incorporated the 2nd amendment, the 3rd amendment (though the lower federal courts have spoken on this issue -- see Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982)), the "Grand Jury" clause of the 5th amendment, and the 7th amendment.
Those apply only to the federal government, not the states.
Any laws passed under those amendments would only apply on federal property and only be enforceable by federal agents.
Your "incorporation" rationalizations become ever more ludicrous, paulsen; -- as the USSC has no delegated constitutional power to decide that the 14th does not protect our 2nd, 3rd, 5th, & 7th amendment rights to life, liberty & property, just as it is written.
-- See the 10th, where that point is specifically addressed.
And try to address the main issue here today. -- Why do you want most of our BOR's to be 'unincorporated'? What is your agenda?
Not necessarily. It just says that if you have that right, Congress shall not abridge it. Your "right" to free speech is defined and protected by your state constitution.
Well, it used to be. Now, thanks to the 14th amendment, your right to free speech is defined and "protected" by the federal government. Doncha just love the way Congress recently defined it?
And you want them to also define your gun rights, huh?
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