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
Amazing, you've finally admitted you are an anti-14th 'states rightist'. Thanks.
Are you sure you want a State to be able to define your rights, paulsen?
-- It hasn't worked very well here in Calif. - As a moral majority has defined assault weapons as 'evil' and prohibited them.
In fact, if all our rights are subject to such 'definitions', do we even have inalienable rights, paulsen?
Yep, they can't take away your God-given unalienable rights to life, liberty, and the pursuit of happiness.
Guns are another matter. You need an amendment.
We have an amendment, the 2nd. - California joined the union with an agreement to honor & obey our US Constitution. Our state 'lawmakers' also swear that same oath. -- So have you my boy, at one point or another.
Give that some thought as you preach your anti-constitutional agenda, wherein you finally admit you are an anti-14th 'states rightist'.
Then you've missed my posts where I said that RLC platform (less the drugs) pretty much describes me, huh?
Yep, I missed that. You don't have the chutzpah to fly that hot air balloon very often.
The 9th Circuit is further Left than was the Politburo.
Very creative. And all these years I thought that it referred to one of my unalienable rights along with "life, liberty, and the pursuit of happiness". Please tell me what "liberty" was being referred to by our Founders in the Declaration of Independence? Is there no element of tyranny practiced by the monarchy and from which we are protected by the Bill of Rights?
Please explain why the Ninth Circus claims that the Second Amendment is a "collective right"? Using your interpretation of the necessity for a separate individual right to keep and bear arms for each state, why was it necessary for the Ninth to declare the Second Amendment to not protect an individual right?
What possible purpose can be served by an individual right as expressed in the Second Amendment? You would seem to be stating that it has no effect whatever. If a state has an RKBA, then its citizens have an individual right. If a state does not have an RKBA, then the citizens of that state do not have an individual right.
Why did our Founders bother?
Poor form to dodge a question by asking it back. Re your #114, you cited a number of cases which seems to indicate you believe that rights do not exist until case law provides them. On the contrary -- rights are usually violated until case law clarifies their protection. Which doesn't mean they are granted, but rather that violations of those rights are eventually curtailed.
Let me help you out a little. Article VI of the Constitution:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
So the Framers couldn't conceive that rights protected under the Constitution would be abrogated by states, but could be in danger from federal legislators unless specifically addressed.
Re the 14th Amendment you seem to be gnawing around, it was in response to the Black Codes passed by southern states in the period 1865-1868 to deny Freedmen the protections of the ballot box, the jury box, and the cartridge box, and out of Republican concerns that the Supreme Court would render the Equal Rights Act of 1868 unconstitutional.
The course you are advocating is a states' rights position, which fell through about 139 years ago. To argue that the Constitution applies only to the Federal government until parts of it are "incorporated" is specious, and an attempt to selectively deny the supremecy of the Constitution to fit your agendum.
Maybe RP is a clerk for a judge on the 9th Circus courts. That'd explain a lot...
As far as the militia is supposed to be an effective defense against a standing army -- one which possesses WMDs -- I would say yes.
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.
The 2nd Amendment does not allow for the restriction of arms, whether they be AR-15s or WMDs.
I'm still unconvinced of the soundness of an incorporated 2nd Amendment. How do we decide what arms are reasonable to keep and bear (artillery, mechanized calvary, etc.), and how do we do that without infringing on the right?
You are 100% correct. I was wrong when I cited the Emerson case. The Silvera case was the one in the 9th circuit, where Kozinski and Kleinfeld wrote their dissent.
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.
I'm still unconvinced of the soundness of an incorporated 2nd Amendment.
Weird comment, - 'incorporation' has nothing to do with the WMD issue.
How do we decide what arms are reasonable to keep and bear (artillery, mechanized calvary, etc.), and how do we do that without infringing on the right?
Read much? - Just above I illustrated the constitutional basis of why ALL weapons are 'reasonable' to possess. -- Regulations can be made as to how they can be stored & used, as long as such rules do not violate our basic rights.
Flat out prohibitions on possession of artillery, tanks, machine guns, etc are unconstitutional, as specified by the 14th & 2nd amendments.
L
How does one define "arms"? If one defines the term to include anything that could conceivably be used as a weapon, such a definition would include just about everything. I don't think the Founders intended it to be quite so broad.
As for WMD's, I find it hard to imagine situations where they could be used for individual or collective defense without endangering innocent people. To be sure, they can be legitimately useful in counter-offensive operations, but such operations fall outside the scope of duties of a militia.
If free speech were an unanienable, God-given right, then it couldn't be infringed or taken away. Your right to free speech is defined by the laws of society, as you well know. Or do you think you have a God-given, unalienable right to yell "fire" in a crowded theater, spread malicious slander about a private individual, utter fighting words, or yell profanities in front of children? What, you call that "liberty"?
"Please explain why the Ninth Circus claims that the Second Amendment is a "collective right"?"
Sure, if you promise to tell me why the Fifth Circuit, in U.S. v Emerson, claimed the Second Amendment is an "individual right".
The Ninth Circuit stated, "Because the Second Amendment does not confer (not "protect" as you claim) an individual right to own or possess arms, we affirm the dismissal of all claims brought pursuant to that constitutional provision." Do you disagree? Do you think the second Amendment "confers an individual right"? Is that where we get our "right"?
That's the problem. The defendants were looking for protection where none was to be had. The protection of their rights is found in their own state constitution, which, in this case, is stone-cold silent.
"If a state has an RKBA, then its citizens have an individual right. If a state does not have an RKBA, then the citizens of that state do not have an individual right."
I don't like the phrasing of that. Let's try this. You have a right to keep and bear arms. It's a fundamental right. Now, does the state in which you live protect that right or is it silent?
If your state constitution protects that right, then the state supreme court interpretation of the wording describes the limits of your rights. These interpretations are reflected in your state laws.
If, on the other hand, your state constitution is silent on the right to keep and bear arms (as it is in California and five other states), then your right is not protected. Your "right" is simply the arbitrary laws passed by the state legislature which, hopefully, reflect the will of the majority of the citizens of your state.
Don't look to the Second amendment of the U.S. Constitution for your protection. I'm very concerned about the way the Ninth read it (even though it had nothing to do with the case*).
Basically, they said, "Congress cannot ban arms because the people need them to form a militia to protect their state. And since the defendants weren't forming a militia to protect their state, we can ban their guns." Essentially ruling on a "collective right".
* SILVEIRA v. LOCKYER was not the right case to challenge the RKBA, and it definitely was not the right federal court to challenge it in. It was a disaster. It gave Judge Reinhardt the forum he was looking for to rebut the Fifth Circuit ruling in U.S. v Emerson. His rambling opinion was a direct assault on the opinion in Emerson (he mentions it often).
I didn't think so. Can you answer it? I'd love to see you try -- I could use the laugh.
"Which doesn't mean they are granted ..."
I agree. We have rights to begin with, some are unalienable, some are fundamental. State constitutions protect those rights, and case law reflects the state supreme court interpretation of the state constitution.
The Bill of Rights in the federal U.S. Constitution only applied to the federal government. Many states had laws contrary to the "rights" protected by the Bill of Rights, actually right up to the 1960's. I've got plenty of examples.
Please don't give me the tired, "Yeah, but they were violating the U.S. Constitution all that time and it wasn't being enforced" line of BS.
"The course you are advocating is a states' rights position, which fell through about 139 years ago."
On that, I agree. The 14th, along with the 17th, undermined the individuality of the states, as evidenced by the selective incorporation of the Bill of Rights under the Due Process Clause of the 14th.
One final question (now you have two to answer). You say the BOR applies to the states -- that would include, of course, the seventh amendment. Please tell me why I am not entitled to a jury trial in a state civil lawsuit? The seventh amendment states, " In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ..."
(Hint: The seventh amendment has not been incorporated, that's why) "Specious" my a$$.
Inane. - ANY inalienable right can be infringed upon by bad law.
Your right to free speech is defined by the laws of society, as you well know.
Nope, not 'defined', as a right is inherent. - but speech can be reasonably regulated.
Or do you think you have a God-given, unalienable right to yell "fire" in a crowded theater, spread malicious slander about a private individual, utter fighting words, or yell profanities in front of children? What, you call that "liberty"?
Rational folks call such laws reasonable regulation.
The Ninth Circuit stated, "Because the Second Amendment does not confer an individual right to own or possess arms, we affirm the dismissal of all claims brought pursuant to that constitutional provision." Do you disagree? Do you think the second Amendment "confers an individual right"? Is that where we get our "right"?
Our RKBA's is inherent with our right to self defense.
That's the problem. The defendants were looking for protection where none was to be had. The protection of their rights is found in their own state constitution, which, in this case, is stone-cold silent.
Our rights exist, regardless of whether the State protects them.
You have a right to keep and bear arms. It's a fundamental right. Now, does the state in which you live protect that right or is it silent? If your state constitution protects that right, then the state supreme court interpretation of the wording describes the limits of your rights. These interpretations are reflected in your state laws.
Bizarre thinking. Our fundamental rights exist whether the State protects them or not. - Our lawful actions can be reasonably regulated, but our rights cannot be violated to enforce such regulations/laws.
If, on the other hand, your state constitution is silent on the right to keep and bear arms (as it is in California and five other states), then your right is not protected. Your "right" is simply the arbitrary laws passed by the state legislature which, hopefully, reflect the will of the majority of the citizens of your state.
Our right to self defense, [RKBA's] exists whether a State recognizes it or not.
Don't look to the Second amendment of the U.S. Constitution for your protection.
Why not? - Our only other recourse is civil [or uncivil] disobedience.
I'm very concerned about the way the Ninth read it (even though it had nothing to do with the case*). Basically, they said, "Congress cannot ban arms because the people need them to form a militia to protect their state. And since the defendants weren't forming a militia to protect their state, we can ban their guns." Essentially ruling on a "collective right". * SILVEIRA v. LOCKYER was not the right case to challenge the RKBA, and it definitely was not the right federal court to challenge it in. It was a disaster. It gave Judge Reinhardt the forum he was looking for to rebut the Fifth Circuit ruling in U.S. v Emerson. His rambling opinion was a direct assault on the opinion in Emerson (he mentions it often).
ANY case that challenges the current systems 'wisdom' on gun rights is good. They are fighting an unwinnable regulatory battle, and they know it.
- [How is that you don't, paulsen?]
In the end, people will fight & die to retain their ability to defend themselves. Unreasonable regulations on our RKBA's only hasten the day when it is 'time'.
Good grief paulsen, get a grip. - The 7ths 'dollar clause' intent was to prevent petty lawsuits from clogging the jury system. - The amendment, if followed, PROTECTs your right to a jury trial in serious matters.
"Specious" my a$$.
Specious you are paulsen, and you just fell on your a$$ once again.
You've used up a lot of electronic ink to dodge the question here. Many scholars recognize that the Second Amendment "protects" an individual right. The clear meaning of the Ninth Circuit's reference to the Second Amendment was to deny that it referenced in any way an individual right. How is it not reasonable to presume that it would have been relevant if the Second Amendment DOES protect an individual right.
Much like the Ninth Circuit, you seem to enjoy quoting irrelevancy which may be literally true ("The Second Amendment does not CONFER an individual right") and then conclude from that that there is no individual right, which is exactly how the reference was used in the Ninth Circuit's opinion.
It is my recollection that US vs Miller states unequivocally that the Second Amendment refers to an "existing" right and that that right is in no way dependent upon the Second Amendment for its existence. Only tortured defenses such as that which you supply for the Ninth Circuit have allowed Miller to be used to support a "collective right" interpretation which is nowhere present in Miller.
First, it struck down Silveira v. Lockyer. The court knew the California constitution didn't protect Silveira, and the court knew that the second amendment 1) didn't apply to the states, and 2) the second amendment did not grant an individual right to keep and bear arms.
At the time the Ninth heard Silveira v. Lockyer, it "had already rejected the Second Amendment at least four times, holding that it does not create a fundamental individual right, and also that it is not a restriction on state laws because the Second Amendment only applies to the federal government. Fresno Rifle & Pistol Club v. Van de Kamp, 965 F. 2d 723 (9th Cir. 1992); Hickman v. Block, 81 F. 3d 998 (9th Cir. 1996), cert denied, 519 U. S. 912 (1996); San Diego County Gun Rights Committee v. Reno, 98 F. 3d 11121 (9th Cir. 1996); United States v. Mack, 164 F.3d 467, 474 (9th Cir. 1999)."
-- nationalreview.com
The second thing the Ninth did was to write an opinion destroying that of the 5th Circuit.
"you seem to enjoy quoting irrelevancy"
I enjoy quoting fact. You're the one making things up. You're the one who stated, "why was it necessary for the Ninth to declare the Second Amendment to not protect an individual right?" They never said that.
"It is my recollection that US vs Miller states unequivocally ..."
Uh, I'm going to wait for the actual quote from the actual case, if you don't mind. I don't trust your "recollection". Please provide it, then I'll comment.
"Our RKBA's is inherent with our right to self defense."
"Our rights exist, regardless of whether the State protects them."
"Our fundamental rights exist whether the State protects them or not."
"Our right to self defense, [RKBA's] exists whether a State recognizes it or not"
Well, there you have it. Our RKBA is rock solid.
But when I say, "Don't look to the Second amendment of the U.S. Constitution for your protection", you say, "Why not?"
BWAHAHAHAHA! What is it? Suddenly not so "rock-solid" on the "inherent", "fundamental", "RIGHT to self-defense", reasons? Don't lean too heavy on that second amendment there, tpaine, you may break it.
Why not? - Our only other recourse is civil [or uncivil] disobedience.
Any case that challenges the current systems 'wisdom' on gun rights is good. They are fighting an unwinnable regulatory battle, and they know it.
- [How is that you don't, paulsen?]
In the end, people will fight & die to retain their ability to defend themselves. Unreasonable regulations on our RKBA's only hasten the day when it is 'time'.
tpaine, you are a piece of work. Look at your post:
"Our RKBA's is inherent with our right to self defense." "Our rights exist, regardless of whether the State protects them." "Our fundamental rights exist whether the State protects them or not." "Our right to self defense, [RKBA's] exists whether a State recognizes it or not"
Well, there you have it. Our RKBA is rock solid.
No, it is being threatened by a bunch of anti-constitutional idiots, who you support.
But when I say, "Don't look to the Second amendment of the U.S. Constitution for your protection", you say, "Why not?" BWAHAHAHAHA! What is it?
Laugh maniacally on, paulsen.. - It's the only recourse we have from the tyranny of the majority that you support.
Suddenly not so "rock-solid" on the "inherent", "fundamental", "RIGHT to self-defense", reasons? Don't lean too heavy on that second amendment there, tpaine, you may break it.
The more you post like this paulsen, the more you convince everyone at FR of your basic idiocy.
Keep up the good work.
You failed to address the fact that the Ninth Circuit included the quote in question as a means of dismissing that the Second Amendment refers to an individual right. What they said, that the Second Amendment does not "confer" a right, while literally true, was intended to deny that an individual right exists.
You seem to ignore the self-serving judicial errors which have allowed the Ninth to make their ridiculous claims.
YOU have said, I believe, that the Second Amendment protects an individual right, but only from infringement by the federal government. Does this not obligate the Ninth Circuit to similarly recognize the individual right referred to in the Second Amendment? Or are they free to continue with the "collective right" invention?
Not at all. This wasn't a second amendment case -- this was a state of California law which did not violate the California or the federal constitutions. The Ninth ruled correctly in that sense.
As I posted the cases to you, it is well known that the Ninth Circuit 1) considers the second amendment binding only on the federal government, and 2) does not create an individual right. Now, given those two basic known facts, you can see how this wasn't a second amendment case.
However, that didn't stop Judge Reinhardt from taking the opportunity to bitch-slap the Fifth Circuit. And boy, did he. He carried on about "collective right", and militias, and Miller, and on and on. Had nothing to do with Silveira v. Lockyer -- it just gave him the opportunity to present the liberal side of gun rights. Here's an excellent article on the case.
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