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
Yes it's time you caught up
To a modern liberal, "well-regulated" sounds like a blank check for gun control laws. However, 200 years ago the term "well-regulated" did NOT mean "burdened down with laws and paperwork", but rather "well-trained" or organized. A clock that kept perfect time was said to be well regulated. So the intent was clearly to say to "the militia", which was pretty much all able-bodied men at the time, that they should not only be armed but know how to use it and be ready to do so. It was a call for vigilance and preparedness.
The second part of the Second Amendment, "the right of the people to keep and bear arms shall not be infringed", seems pretty clear, doesn't it? Yet liberals even pick that apart claiming the assault weapon ban and registration don't "infringe" on a sportsman's right to hunt, and banning any gun that doesn't satisfy Ted Kennedy's definition of "sporting purpose" doesn't "infringe" on our deer/duck/target rights either.
Obviously I can't say anything here that hasn't been said a million times already and far more eloquently. Liberals (including John F'n Kerry) would have us believe that the Second Amendment is like one of those optical illusion posters where you have to stare and squint just right at it to see the picture, and they will provide the glasses.
Well I don't need their glasses, and I can see the picture. And I don't see anything about hunting, or sporting, or the National Guard or loopholes in there. It says we need to be prepared to remain a free state, so we can own and carry guns. Is that so cloaked in mystery that it takes the Supreme Court to run their Green Lantern decoder ring over it? I guess my eyes are just better regulated.
It was rejected as being redundant. The supremacy clause applies the BOR to the states, as you well know and refuse to admit.
The due process clause of the 14th amendment has been used to selectively incorporate the first eight amendments and make them applicable to the states.
"Incorporation" is a cheap trick, a lawyerly way to empower the judiciary.
The second amendment has never been incorporated -- it still applies only to the federal government.
Dream on, paulsen.
The question remains, why do you insist upon giving states the power to infringe upon our RKBA's? How does this advance our cause of retaining individual liberty?
Your gun rights are protected by your state constitution.
No they aren't, in Calif, at least. What do you gain by spouting such an obvious bit of BS, paulsen?
"Incorporation" is not about "due process", it is about "privileges and immunities". Incorporation is an invention of the Supreme Court which is mentioned nowhere in the Constitution, the Bill of Rights, or any subsequent amendment to the Constitution. I know of no Congressional legislation which addresses "incorporation". It is simply a mechanism which recognizes that the Supreme Court is inconsistent in its application of the Constitution and is determined to shape government rather than defend freedom.
Color me as well.
mc
The Bill of Rights (first 10) limit the federal (general) government and do not apply to the states or individuals.
The bolded portion points to the fact that this is what we have today as a result of the 'many' states' abdicating their responsibility. Roe v. Wade and the Texas homosexual privacy decisions are but a couple of examples of the overreaching, illegitimate malignancy that today festers at the federal level.
Any and every 'infringment' on gun owners by the feds is an expressed violation of the 2nd ammendment.
Any state infringements are not disallowed. Example: if you live in the state of Chickensh*t, the legislators there could infringe to the extent of banning all guns. The trick for them is to get re-elected to the legislature in the state of Chickensh*t. If the majority voting population of the state are truly chickensh*t, you're out of luck.
However, a neighboring state, the state of MeanSonsofB*tches has no ban on guns, carry, or anything whatsoever. And lo and behold, they have less crime. Soon the folks from the state of Chickensh*t tire of all the rapes, robberies, carjackings, and home invasions, etc. and look to their neighboring state- MSB- for solutions. (Remember, the feds were taken out of the equation by the 2nd Ammendment, and that's rock solid)
What happens next is what the founders had in mind initially: little democracies experimenting in the wilderness and, over time, finding the truth and implementing it.
What they (founders) feared most is what we have today. Which leads me to a dire prediction: Unless we return to the original vision that was the basis of this country's founding, we'll bear witness to it's demise, perhaps in our lifetimes. It's in the cards as much as it's been spelled out in the Declaration of Independence.
As much as I love this country, it is my greatest hope that the federal misapplication of powers may be brought to an end and that we may once again enjoy the 'plan' that was slated for us by some very wise and long dead white guys. Absent that, we will surely be living in interesting times.
The Bill of Rights (first 10) limit the federal (general) government and do not apply to the states or individuals.
The bolded portion points to the fact that this is what we have today as a result of the 'many' states' abdicating their responsibility. Roe v. Wade and the Texas homosexual privacy decisions are but a couple of examples of the overreaching, illegitimate malignancy that today festers at the federal level.
Any and every 'infringment' on gun owners by the feds is an expressed violation of the 2nd ammendment.
Any state infringements are not disallowed. Example: if you live in the state of Chickensh*t, the legislators there could infringe to the extent of banning all guns. The trick for them is to get re-elected to the legislature in the state of Chickensh*t. If the majority voting population of the state are truly chickensh*t, you're out of luck.
However, a neighboring state, the state of MeanSonsofB*tches has no ban on guns, carry, or anything whatsoever. And lo and behold, they have less crime. Soon the folks from the state of Chickensh*t tire of all the rapes, robberies, carjackings, and home invasions, etc. and look to their neighboring state- MSB- for solutions. (Remember, the feds were taken out of the equation by the 2nd Ammendment, and that's rock solid)
What happens next is what the founders had in mind initially: little democracies experimenting in the wilderness and, over time, finding the truth and implementing it.
What they (founders) feared most is what we have today. Which leads me to a dire prediction: Unless we return to the original vision that was the basis of this country's founding, we'll bear witness to it's demise, perhaps in our lifetimes. It's in the cards as much as it's been spelled out in the Declaration of Independence.
As much as I love this country, it is my greatest hope that the federal misapplication of powers may be brought to an end and that we may once again enjoy the 'plan' that was slated for us by some very wise and long dead white guys. Absent that, we will surely be living in interesting times.
Hey, your computer is screwed up, you posted twice!
The Bill of Rights (first 10) limit the federal (general) government and do not apply to the states or individuals.
Daft reasoning. See the supremacy clause, Art VI.
The bolded portion points to the fact that this is what we have today as a result of the 'many' states' abdicating their responsibility. Roe v. Wade and the Texas homosexual privacy decisions are but a couple of examples of the overreaching, illegitimate malignancy that today festers at the federal level.
Both decisions were triggered by state 'laws' that infringed upon our right to live private lives.
Any and every 'infringment' on gun owners by the feds is an expressed violation of the 2nd ammendment.
As are any state 'laws' that so infringe. Our Constitutional law is supreme in the USA.
Any state infringements are not disallowed.
Infringements by states are among the prohibited powers mentioned in the 10th Amendment.
Example: if you live in the state of Chickensh*t, the legislators there could infringe to the extent of banning all guns. The trick for them is to get re-elected to the legislature in the state of Chickensh*t. If the majority voting population of the state are truly chickensh*t, you're out of luck. However, a neighboring state, the state of MeanSonsofB*tches has no ban on guns, carry, or anything whatsoever. And lo and behold, they have less crime. Soon the folks from the state of Chickensh*t tire of all the rapes, robberies, carjackings, and home invasions, etc. and look to their neighboring state- MSB- for solutions. (Remember, the feds were taken out of the equation by the 2nd Ammendment, and that's rock solid) What happens next is what the founders had in mind initially: little democracies experimenting in the wilderness and, over time, finding the truth and implementing it.
NO, what happens "next" is happening in Calif, where millions of people are being oppressed by a majority of their socialistic peers, who are convinced that owning an evil looking assault weapon is morally wrong.
What they (founders) feared most is what we have today.
Exactly, we have a coalition of socialistic 'moral' majorities governing this country. Rinocrats rule.
Which leads me to a dire prediction: Unless we return to the original vision that was the basis of this country's founding, we'll bear witness to it's demise, perhaps in our lifetimes. It's in the cards as much as it's been spelled out in the Declaration of Independence. As much as I love this country, it is my greatest hope that the federal [AND STATE] misapplication of powers may be brought to an end and that we may once again enjoy the 'plan' that was slated for us by some very wise and long dead white guys. Absent that, we will surely be living in interesting times.
You got the last part right.
Penumbras?
You mean they actually think? Probably not, I suspect they use magical feeling. Possibly chemically enhanced feeling at that. Must be some good stuff.
The actual version: 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.
The difference, of course, is in the punctuation.
The version Skidmore author uses is much more definitive. Unfortunately, we have to live with the one we have. It makes no sense to use as a basis for argument language that does not exist in the actual Constitution. By hyphenating well-regulated, Skidmore emphasizes the meaning of regulated that refers to drilling and practice. By eliminating the first comma, Skidmore makes it clear that the militia is what is necessary for state security. And, finally, by eliminating the last comma, the statement that the right of the people shall not be infringed is much more direct and unequivocal. Unfortunately, this exercise in creative writing exists nowhere in the law, so it is moot.
The version sent out to the states for ratification and apparently the version that came out of the Congress before being sent to the printer, a government printer of course, only had one comma, as in Skidmore's version. Don't know about the hyphenation of "well regulated". None of the more or less original versions I've seen have the hyphen, although the version in the Alaska state Constitution does. In any event it was a well understood term meaning properly functioning or fit for its intended purpose. The single comma version is what was ratified by the states, and thus is the version that rules.
SAF page discussing the comma issue.
GPO Version of the second amendment has only 1 comma.
Which one was that? When was it submitted in 1866, and by whom?
There was of course an amendment submitted that forbide the states from abridging the priveleges and immunities of citizens of the United States. That one was ratfied in 1868. But of course the same sort of creative interpretation was applied to that one as has been applied to the second amendment. (Ruling that it only protected rights involving areas of federal responsibility, such as freedom to travel on navigable waterways. In spite of the intent of it's Congressional authors, as documented in the Congressional record, that it apply the first 8 amendments to the states)
El Gato, thanks for the links.
Interesting thread BANG
Kozinski did great in his dissent on US v. Emerson, but I like Kleinfeld's dissent even better.
It is, IMHO, the most articulate and exhaustive defense of the 2nd admendment that I've ever read:
Hey, I go to Pierce.
"The sheer ponderousness of the panel's opinion—the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text—refutes its thesis far more convincingly than anything I might say."
The same is true of the McCain-Feingold monstrosity and the simple words of the First Amendment.
A: When it's "regulating commerce among the several states".
Then how do we ban private ownership of WMDs?
Are WMD's suitable for use as arms in the context of a well-functioning militia?
If all items which could conceivably be used as weapons were protected by the Second Amendment, the government would be unable to impose tariffs or excise taxes on much of anything. I don't think the Founding Fathers intended to forbid taxes on alcohol on the basis that it could be used in making Molotov cocktails.
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