Posted on 03/30/2007 5:09:20 PM PDT by neverdem
Earlier this month, in the case of Parker v. District of Columbia, a three-judge panel of the Federal Court of Appeals for the District of Columbia broke with all other federal circuits by holding that a gun-control statute violated the Second Amendment.
In a split decision, the court found that the District of Columbia's ban on handguns and a companion law that requires that legally owned firearms be stored disassembled could not be reconciled with the text of the amendment.
The amendment reads, "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 only modern Supreme Court case to look at the issue, United States v. Miller, found that the Second Amendment was designed to preserve the effectiveness of the organized militia.
The Parker case breaks from this precedent by finding that the militia purpose is but one among a laundry list of other individual uses of arms protected by the Second Amendment, including hunting, self-defense, and protection from the "depredations of a tyrannical government."
This last claim, that individuals have a right to take up arms against representative government, was last tried out by the Confederate States of America.
When Abraham Lincoln was elected president in 1860, many Southerners, fearing that Lincoln would abolish slavery, felt they had no obligation to accept the results of the election. Southern attempts to withdraw from the union quickly led to individuals taking up arms to fight what they perceived as federal tyranny.
As president, Lincoln acted on his belief that violence against the government was illegal and unconstitutional. In his first inaugural address he stated, "It is safe to assert that no government proper ever had a provision in its organic law for its own termination."
As he asked the nation to go to war to protect its sovereignty, Lincoln added, "And this issue embraces more than the fate of these United States ... It presents the question, whether discontented individuals, too few in numbers to control administration ... can always ... break up their government, and thus practically put an end to free government upon the Earth."
Lincoln made it clear that individuals or even states did not have the authority to determine what was "just cause" to wage a war against the union. As much as it pained him to send young men off to die, he did so to vindicate the idea that the Constitution and its amendments did not create some kind of national suicide pact.
Following the Civil War, the Supreme Court, in the case of Texas v. White, adopted this view and held that the Constitution did not countenance armed rebellion against the federal government.
The Parker court, by implicitly reviving Confederate constitutional theory and wrapping it in the authority of the federal courts, takes the ideals of conservative judicial activism in a lunatic direction.
The case is likely to be appealed. Let's hope that the rest of the D.C. Circuit knows enough history to recog´ nize that Lincoln, not Jefferson Davis, is the guiding spirit behind our system of constitutional government.
Horwitz is the executive director of the Coalition to Stop Gun Violence and a visiting scholar at the Johns Hopkins Bloomberg School of Public Health.
Does the court rule on the settlement before it's made?
Which explains how the state of West Virginia could be formed from counties of the former Union state of Virginia, Article IV Section 3 of the Constitution providing that no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
Accordingly, either the secession of Virginia was lawful and the new formation of a state of West Virginia from those counties who wished to remain affiliated with the Unionist government of America was thereby lawful, or the formation of West Virginia was unconstitutional, and every vote, constitutional amendment and election since West Virginia's inclusion has been corrupt and is thereby unconstitutional and illegitimate.
Pick one of the above. Not both; can't have the cake and eat it too- if we're a constitutional republic. Of course a dictator can make the words mean whatever they need to.
I pick number 3. The creation of West Virginia was Constitutional because the Virginia legislature that remained loyal to the Union, and which was recognized by Congress voted to create it.
On April 17, 1861, the Virginia Secession Commission voted to submit a secession bill to the people. When this was approved, the delegates from the western counties marched out of the Secession Convention, vowing to form a state government loyal to the Union. These delegates gathered in Clarksburg on April 22, calling for a pro-Union convention, which met in Wheeling from May 13 to 15. On May 23, Virginia voters approved the Ordinance of Secession.
Following the Union victory at the Battle of Philippi, a Second Wheeling Convention met between June 11 and June 25, 1861. Delegates formed the Restored, or Reorganized, Government of Virginia, and chose Francis H. Pierpont as governor. Congress recognized the Restored Government as the legitimate government of Virginia. John Carlile and Waitman T. Willey became United States Senators and Jacob B. Blair, William G. Brown, and Kellian V. Whaley became Congressmen representing pro-Union Virginia.
On October 24, 1861, residents of thirty-nine counties in western Virginia approved the formation of a new Unionist state. At the Constitutional Convention in Wheeling, which met from November 1861 to February 1862, delegates selected fifty counties for inclusion in the new state of West Virginia. Some of the counties that did not support statehood were included for political, economic, and military purposes. One of the more controversial decisions involved the Eastern Panhandle counties, which supported the Confederacy. The Baltimore and Ohio Railroad, which ran through the Eastern Panhandle, was extremely important for the economy and troop movements. Inclusion of these counties removed all of the railroad from the Confederacy.
Since the Restored Government was considered the legal government of Virginia, it granted permission to itself on May 13, 1862, to form the state of West Virginia and the requirements of Article IV, Section 3 were met.
The United States Senate on July 14, 1862, approved statehood for West Virginia. On December 10, 1862, the House of Representatives passed the enabling act as well and on December 31, President Lincoln signed the bill into law, approving the creation of West Virginia as a state loyal to the Union. On March 26, 1863, the citizens of the fifty counties approved the statehood bill and on June 20, the state of West Virginia was officially created.
You can complain about the process all you want but the Supreme Court also granted de facto recognition of the Constitutionality when it agreed to hear the case of Virginia v West Virginia in 1871.
Another interesting point regarding Virginia secession that I just noticed: Their ordinance of secession was issued on April 17, 1861, its text requiring that it be ratified by a general election which was held on May 23. However, it was admitted to the Confederacy on May 7, and CSA troops were already in Virginia before the state's citizens had ratified secession.
Nope. Had that been the case, they would have been the government of the Unionist state of Virginia, USA, rather than a newly-formed state.
That was after Lincoln had dissolved the Constitution on 27 April 1861 with his suspension of the constitutional right of habeas corpus — unquestionably one of the most important of our civil liberties, for it prohibits government from making arrests without just cause, that is, from locking people up and throwing the key away, so to speak. In time, more than 10,000 were arrested and imprisoned by military officers, often for crimes that never existed in any law book, manufactured by the generals.
That, and Lincoln's suspension of state/local government in Maryland, where in late 1861 he had soldiers arrest and imprison the members of the legislature believed to be Southern sympathizers who might vote for Maryland’s secession. Democratic government ceased in Maryland for the duration of the war.
Oh, and Lincoln's order to arrest the chief justice of the US Supreme Court for having the gall to give orders to the president in ex parte Merryman and to condemn Lincoln's acts against the Constitution. And remember: Taney was simply doing his duty, as under the Constitution the Supreme Court has the final say on Constitutional issues, not the president, not the Congress, not anyone else.
Lincoln was saved the condemnation of history, possibly impeachment and removal from office as well, by a reluctant federal marshal who wisely refrained from arresting the chief justice of the United States. But notwithstanding the failure to arrest the chief justice, this episode marked the end of constitutional government in the United States, as a British periodical, Macmillan Magazine, observed in 1862:
There is no Parliamentary (congressional) authority whatever for what has been done. It has been done simply on Mr. Lincoln’s fiat. At his simple bidding, acting by no authority but his own pleasure, in plain defiance of the provisions of the Constitution, the Habeas Corpus Act has been suspended, the press muzzled, and judges prevented by armed men from enforcing on the citizens’ behalf the laws to which they and the President alike have sworn.
They do it all the time, or try to- every time they issue a judicial order of restraint or a court-ordered Notice of Injunction, sometimes described as a "status quo order".
You noticed that, did you? Well, not to worry. I'm sure that had the secession referendum gone against them the confederate authorities would have immediately allowed the state to return to the Union. </sarcasm>
That would imply there were two Virginias. There was not, only a single state. And the duly recognized legislature of that state voted to split it in two.
lHyperbole aside, the Constitution clearly states that habeas corpus may be suspended when in the event of invasion or rebellion the public safety requires it. That is hardly dissolving the entire Constitution, that's abiding by it.
Those members of the legislature were advocating joining an armed rebellion currently underway against the government. At the very least they were formenting treason. They're damned lucky they spent only a few weeks in jail.
Oh, and Lincoln's order to arrest the chief justice of the US Supreme Court for having the gall to give orders to the president in ex parte Merryman and to condemn Lincoln's acts against the Constitution. And remember: Taney was simply doing his duty, as under the Constitution the Supreme Court has the final say on Constitutional issues, not the president, not the Congress, not anyone else.
Complete nonsense. Taney was never arrested, Lincoln never ordered his arrest, and the Chief Justice remained on the Bench until his death.
Lincoln was saved the condemnation of history, possibly impeachment and removal from office as well, by a reluctant federal marshal who wisely refrained from arresting the chief justice of the United States.
The only proof you can offer that this occured is that "reluctant federal marshal's" ghost written memoirs. It's vey noteworthy that none of Lincoln's biographers and, more importantly, none of Taney's biographers recount this in their books. The reason being, according to one of them, is that there is no evidence to support it.
Got any other whoppers you want to repeat?
do you think lincoln, the TYRANT & WAR CRIMINAL, would have left VA independent OR would he have sent in federal troops to "preserve the union" of the UNWILLING???
free dixie,sw
Bull...manure.
otoh, as the Minister of DAMNyankee PROPAGANDA, you are NOT interested in the TRUTH. deceit, "word twisting", HALF-truths & outright LIES are your "bread & butter".
free dixie,sw
i suspect lincoln would have, STUPIDLY, sent in invaders to "preserve the union" of the UNwilling.
one wonders how many INNOCENT civilians the invaders would have robbed,raped,plundered,tortured or MURDERED to return VA to "a subservient status with in the union".
free dixie,sw
What I do understand is to take your opinions for what they are worth, exactly nothing. The Davis government hastened Virgina's entry into the confederacy without a thought or care for the popular referendum. The vote was meaningless.
Even when they try to get it right, they get it wrong.
US v. Miller found that a sawed off shotgun was not a suitable weapon for the 'militia'.
frankly, i thought you would at least make an INTELLIGENT comment.
UNlike the other DYs, you have BOTH a functioning BRAIN & an EDUCATION;the rest of "your team" are mostly (to judge from their posts alone)just STUPID, UNeducated BIGOTS, weirdos, nitwits, FOOLS & "pitiful cases".
your response was BOTH silly & fact-FREE.
free dixie,sw
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