Rewrite the Second Amendment?

Magic City Morning Star ^ | Jun 2, 2004 | Richard D. Skidmore

[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

[neverdem]

Kozinski did great in his dissent on US v. Emerson, but I like Kleinfeld's dissent even better.

I thought US v. Emerson was in the 5th Circuit, in and around Texas, IIRC. Wasn't Emerson the doc with a restraining order against him for threatened domestic violence? Was he transferred?

[neverdem]

Was Kozinzki transferred?

[Travis McGee]

What's so amazing to me is that a judge on the same 9th circuit which can't read or understand "shall not be infringed," sees an absolute right for women and doctors to suck the brains out of living kicking 90% delivered babies, (a right I see nowhere in the Constitution).

When it comes to the made-up right to abortion on demand, they sure do understand "shall not be infringed."

[StriperSniper]

.

[AnalogReigns]

Actually using common grammer, the original punctuation you quote is very strong for an individual right.

"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."

With the commas as originally written, it's an awkward sentence, but clearly seems to list TWO things which shall not be infringed, namely a well regulated militia, and the right of the people to keep and bear arms.

Given the similarity to clauses in state constitutions of the time, any honest appraisal will understand it as supporting individual rights. Unfortunatly we know our liberal opponents are anything but intellectually honest.

Honestly, I expect to see an actual civil war...a shooting war... within America in my lifetime.

[Redcloak]

And written by a college prof in L.A., no less.

I do hope that he's tenured!

[180grain]

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).

How can the courts take away a GOD given RIGHT? If it can be taken from you, then it's only a Privilege to be administered has the courts or the Politicians see fit.

[bondjamesbond]

Fascinating. I will have to look into this "comma" issue further.

However the hyphen in "well-regulated" is over-the-line. If it exists only in the Alaska version, to insert it into the amendment in an argument about the meaning of the amendment is not intellectually honest.

[Quiller]

In the above article, the Ninth Circuit was ruling on a California state law, which is not affected by the second amendment (which only applies to the federal government).

This implies that you believe the Constitution applies only to the federal government, not the states. Does that mean, therefore, you believe it would be okay for the states (but not the federal government) to pass laws restricting free speech, or abrogating protections from search and seizure, etc.?

You would have a stronger position if you said the states could pass laws regarding religion (since the first amendment does say Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof and does not specifically prohibit the states from doing so.

[RKV]

That would make the 2nd Amendment an absolute right. If you look carefully you will find no such thing in the BOR. What you are saying would give a felon the right to be armed while serving his term in jail. I don't see that as rational. If you look at colonial and early republican practice you will see how this was interpreted at the founding - I would be happy enough to get back to that (with the exception that native americans, women and blacks were citzens ;) ).

[arthurus]

WMD's are not Arms. hey are poisons. Except for nukes. Everybody has a right to keep and bear nukes. Seriously. Do youthink all the NRA folks would run out and get their own neutron bombs?

[Dead Corpse]

The Founders were concerned that due process would be ignored and Rights would be taken arbitrarily. Your Rights can be supressed during punishment, but they still exist. They are inherent.

And yes, after punishment is over, you should get full control of your Rights back. If you cannot be trusted with a firearm, why are we letting you out of prison to begin with?

[tpaine]

Djarum wrote:

Then how do we ban private ownership of WMDs?

We don't outright 'ban'/prohibit the ownership of anything. -- As per the 14th, our rights to life, liberty, & property cannot be violated without due process. - So instead of fiat [unconstitutional] prohibitions, we reasonably regulate where & how hazardous chemical, biological, & nuclear materials can be used or stored.

Get the principle? -- It works, and has worked, for years. Many private individuals & businesses own/use/store such hazardous materials.

[robertpaulsen]

Did the first amendment apply to the states? I mean, it states, "Congress shall make no law ...". But you insist it applied to the states, huh? How is that some states had a state-sponsored and state-funded religion (Congregationalism) until the the mid-19th century?

"State government support for Congregationalist churches did not end until 1818 in Connecticut and not until 1834 in Massachusetts."
--mb-soft.com/believe

What about free speech? You're saying that free speech applied to the states?

Wrong. Not until 1925, in Gitlow v. New York, 268 U.S. 652, 666 (1925), when it was incorporated under the due process clause of the 14th amendmnent.

OK. The fourth amendment (unreasonable searches and seizures). A fundamental right protected by the states? Yes?

Nope. Not until 1914 in Weeks v. United States, (1914). Prior to that, the states didn't need a warrant. How about that?

The sixth amendment, specifically the right to an attorney. (Recall the Miranda warning ... "you have the right to an attorney ...?)

No. You didn't have that right protected under the states until 1963! [see GIDEON v. WAINWRIGHT, (1963)].

I can go on, but I think you see my point.

The BOR originally applied only to the newly-formed federal government. Years after the passage of the 14th amendment, some, but not all, of the BOR were applied to the states in a process known as selective incorporation.

The second amendment has not been incorporated, and only applies to the federal government. Your gun rights are secured by your state constitution.

[robertpaulsen]

100% correct. One thing to note, and it reinforces your point that the second amendment only applies to the federal government.

The Gun Control Act of 1968 and the Federal AWB of 1994 were passed under the Commerce Clause, not the second amendment. Only in this manner would the laws apply to the states, rather than simply federal property.

[robertpaulsen]

"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."

Also invented is "abortion", "sodomy", and "separation of church and state". So what's your point? We've got to call it something. You don't like "incorporation"? Fine. Let's call it "applicability to the states under the due process clause of the 14th amendment". Better?

"Incorporation" is not about "due process", it is about "privileges and immunities".

OK. There are some who feel that way, and were surprised that the USSC used the "due process" clause rather than the "privileges and immunities" clause of the 14th amendment.

Does it make a difference? And what exactly is that difference?

[RKV]

You point out that courts have failed to enforce the Constitution and that legislatures pass unconstitutional laws. No news there. You have ignored the counter-examples posted above in the text of the Constitution itself (e.g. Article 6) and in the quote from Dred Scott. Plainly put, incorporation is a pernicious doctrine designed to get around the plain meaning of the Constitution. Do some courts rule on the basis of this erroneous doctrine? Yes. Are they wrong to do so? Yes. Now we are in the position of having some absolutely terrible case law to deal with.

[Dead Corpse]

Notice how all the cites he uses are from this century, post-WW1 when all this crap started. It has been an incremental march since then.

Also notice that something so fundamental as a right to protect ones self and ones property is so cavalierly tossed aside as a government granted permission in rp's mind.

[RKV]

I beg your pardon, I should have been much more clear. I consider the doctrine of "partial incorporation" to be in error. I recognize that there are plenty of scholars and jurists who support theories which make the BOR partly applicable to states or not at all. My reading of history and the 9th and 10th Amendments (Article 6 and other parts of the Constitution as well) makes me find such arguments to be wanting in logic.

[RKV]

You have to ask the question "Who benefits?" from the suppression of the natural law right to self defense to understand the motivation of the people who twist the plain meaning of the Constitution to justify [so-called] gun control laws. In general, laws used to disarm a minority (like the Black Codes and laws against selling arms to Native Americans) were used to weaken their ability to defend themselves so they could be oppressed. The same is true of New Yorks Sullivan gun laws, where white people could get permits and immigrants could not. Today, the socialists want us disarmed, and its not hard to figure why.