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
The Incorperation Myth is one that has caused us a lot of damage over the years. That is all it is as well, a MYTH. It has no basis beyond what liberal activist judges have dreamed up.
Agreed. They certainly have no limitations in weilding the "supremacy clause" when they want to. This incorporation crap is nothing but a rubric to enforce a "glass is half empty" interpretation.
The state law is very much affected by the second amendmant. It is not like the first amendment which says "Congress shall make no law..." It says "...shall not be infringed". It doesnt say who shall not infringe. It says shall not be infringed which means nobody can infringe it.
Exactly. This is the same mechanism they are using to expand the so-called "commerce clause" to mena anything that happens anywhere. Even if it is only inside ONE State, or even over seas.
The regulating commerce clause does NOT trump everything else. It would be an infringement. The 2nd says "...Shall Not Be Infringed. It is the only universal application amendment. It does not specify which agency or government shall not infringe. There shall be no talking means something different in a group from "There shall be no talking by short people."
The wording of the 2nd amendment is such that it needs no other amendment for it to be applicable in every jurisdiction in the United States.
Why have we never sought to limit "judicial review?" It's not like it's codified in the Constitution, and there's nothing in that same Constitution that gives ANY branch of government a "magic wand" such as the court has given itself.
All I ask for is a strict scrutiny test with respect to the 2nd Amendment. The governmental purpose, objective, or interest must be "compelling." The means to achieve the purpose, objective, or interest must be "narrowly tailored" to the accomplishment of the governmental purpose, objective, or interest. Under this standard, almost no federal or state gun laws measure up. You could lose your rights only as a result of due process (e.g. conviction for a violent felony).
The 2nd amendmendmant is absolute. It does not say Congress Shall make no law...". It says"...shall not be infringed." That means by everybody, even California.
Seen it. "Strict Constructionist" Supremacy Clause arguments in support of "Living Document" New Deal Commerce Clause legislation. It's quite a dance.
For my part, I agree with you completely, however, it is the judges and legislators who have proven that they need clarification.
Few of the federal judges in the PRK would agree with you - more is the pity.
WRONG. The 2nd needs NO "incorporation". The wording is universal, unlike the others. It does not forbid Congress or any other unit from an action. It just flat forbids it."Shall not be infringed." Nobody can do it.
You'd think they would avoid setting the stage such that we have to kill them to redress a grievence against rulings they KNOW are disingenuous.
All we have to do is convince everyone who supported, voted for, or signed the AWB of that.
Thanks for the clarification.
Any time. ;-)
Any attempt to rewrite the 2nd Amendment is cause to USE the 2nd Amendment.
Limosine liberals and judicial activists had damn well better know this fact.
There are problably more threads on FR defending 9thCC decisions than criticizing them.
I like the line - "Any attempt to rewrite the 2nd Amendment is cause to USE the 2nd Amendment." I don't think it is going to be that simple. We already are pretty far down the line toward confiscation. It happened when the NFA was enacted in the 1930s. Downhill ever since. We are going to have to work for it. CC laws are changing and that is a good start. Kill the AWB next. On to bigger things after that. For my part, I would like to see the re-introduction of local militias. I don't mean a bunch of liquored up yahoos. I do mean something along the Swiss model - every man a soldier.
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