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
Oops. I forgot. You just wanted a "yes" or "no".
Congress has the power to regulate commerce. Not the obligation, not the duty, not the responsibilty.
I stand corrected, then. Your belief in an omnipotent and unaccountable federal government remains unsullied.
Now we're getting somewhere.
Let's hear your interpretation of the "priveleges and immunities" of the Fourteenth Amendment. What privileges and immunities of United States citizens were to be afforded citizens of each state? What did the framers of the Fourteenth amendment mean by extending such "privileges and immunities"?
I previously wrote and now elaborate (with robertpaulsen's belief in parens): Here is what I believe:
True (unknown): The right to keep and bear arms is an individual, unalienable right which is a consequence of the right to life.
True: (unknown)The Second Amendment refers to an individual right to keep and bear arms, not to a "collective right".
True (False): The individual right to keep and bear arms is referred to in the Dred Scott case as being among the privileges and immunities of a free person, without reference to state of residence.
True (False): The Fourteenth Amendment extends the immunity from infringement of the right to keep and bear arms by the federal government to an immunity from such infringement by the state governments.
True (unknown): The Miller decision remanded the case to lower courts on the sole issue of whether a short-barreled shotgun was useful to a militia and did not challenge Miller's right to possess such a weapon if it did have such usefulness.
True (False) : The federal Assault Weapons law can render a person a felon for attaching a bayonet lug to an othherwise legal rifle.
Again, robertpaulsen, I would ask you to respond to these specifics. They are my approach to understanding the level of knowledge that a person has, the degree to which they view governments as being subservient to men, and the degree to which they are able to maintain consistency.
Like that, do you?
For anyone to say that a law outlawing bayonet lugs was written "despite the second amendment" would be disingenuous.
Your claim that there was very little interstate trade is flat out ridiculous.
There was a thriving interstate and foreign trade in rum, tobacco, agricultural products, guns, etc.
Obstacles to trade was one of the problems under the Articles of Confederation. That's why the power to regulate interstate trade was delegated to Congress.
What is the basis for saying there was very little interstate trade?
Of the approximately 1400 cases which reached the Supreme Court under the (commerce -rp) clause prior to 1900, the overwhelming proportion stemmed from state legislation. The result was that, generally, the guiding lines in construction of the clause were initially laid down in the context of curbing state power rather than in that of its operation as a source of national power." caselaw.lp.findlaw.com/data/constitution/article01/28.html
Correct, the Commerce Clause was used by the USSC to strike down State laws which interfered with interstate commerce.
Striking down a State law is different than Congress passing a Federal law governing intrastate activity.
That's the reason the full power of the Commerce Clause wasn't used. It wasn't necessary.
What made it necessary at the time of the New Deal and beyond?
"It is for Congress to supply the needed correction where the relation between intrastate and interstate rates presents the evil to be corrected, and this it may do completely, by reason of its control over the interstate carrier in all matters having such a close and substantial relation to interstate commerce that it is necessary or appropriate to exercise the control for the effective government of that commerce.
USSC was ruling on rail rates. The "evil to be corrected" was basically a tariff to interstate trade. It was not a green light for Congress to create a massive, intrusive Federal bureaucracy. That was the New Deal "substantial effects" test of which which you are so enamored.
As Clarence Thomas wrote in Lopez:
I am aware of no cases prior to the New Deal that characterized the power flowing from the Commerce Clause as sweepingly as does our substantial effects test. My review of the case law indicates that the substantial effects test is but an innovation of the 20th century.
So why was the Marijuana Tax Act thrown out?
So, I choose "correct reading", and that correct reading would be that NONE of the amendments in the BOR apply to the states.
Thank you.
Another yes/no question if you don't mind.
Do you think a correct reading of the Constitution allows Congress to use the Commerce Clause to ban assault weapons?
Let's add this, then, to the summary:
True (False): The power of the federal government to regulate interstate commerce is limited by the Bill of Rights.
No.
Thank you.
And the main reason is ...
Oops. I forgot. You just wanted a "yes" or "no".
By all means, feel free to tell us why you think Justice Clarence Thomas is wrong.
I'll try to clarify my position.
The right to keep and bear arms is an individual, unalienable fundamental right which is a consequence of the right to life. If it were unalienable we couldn't pass laws forbidding their use by felons, children, the insane, the mentally handicapped, etc. We could do so on a case-by-case basis with due process (as with criminal law we can take away freedom), but not in general.
The Second Amendment refers to an individual right to keep and bear arms, not to a "collective right" which shall not be infringed by Congress, since an armed populace, forming a militia, is necessary to maintain a free state. That is what the second amendment refers to. Why did you leave off the militia and the security of a free state? The founders didn't. Does that part of it get in your way? Make you uncomfortable?
The individual right to keep and bear arms is referred to in the Dred Scott case as being among the privileges and immunities of extended by an individual state to a free person citizen, without reference to state of residence.
The Fourteenth Amendment extends does not extend the immunity from infringement of the right to keep and bear arms by the federal government to an immunity from such infringement by the state governments.
The Miller decision remanded the case to lower courts on the sole issue of whether a short-barreled shotgun was useful to a militia and did not challenge Miller's right to possess such a weapon if it did have such usefulness is so f%^&$d up as to be meaningless. It gives me a headache to even read such a convoluted mess.
The federal Assault Weapons law can render a person a felon for attaching a bayonet lug to an othherwise legal rifle. This is true. But the second amendment has absolutely nothing to do with it.
Did you use "stack overflow" in the past? I didn't mean to steal it if you did. I thought I was being original.
A law banning the sale of Bibles under the Commerce Clause could not be considered a First Amendment violation.
Yes. The Commerce Clause has been recognized to be quite powerful and can be used to ban most anything if 1) both houses of Congress choose to do so, 2) the President agrees, 3) the people agree, and 4) the USSC rules a challenge to it constitutional.
That said, I think it was a chicken-$hit way for them to go about it.
True (True) : The federal Assault Weapons law can render a person a felon for attaching a bayonet lug to an otherwise legal rifle.
Not until you apologize for telling me to restict my answer to a yes or no.
Not until you apologize for telling me to restict my answer to a yes or no.
I don't blame you for wanting to avoid having to counter Justice Clarence Thomas.
He's a pretty smart guy.
Care to answer 387?
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