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
Sorry for the repitition WT, we posted within a minute or so of each other.
I would challenge you to make the connection using the actual Miller decision itself. The case was remanded to lower courts on the question of whether a short-barreled shotgun was useful to a militia. The Miller decision is consistent with finding that the National Firearms Act would be unenforceable with regard to such a weapon, regardless of who possessed it.
The Ninth Circus and similar lower courts misread Miller to presume that the militia does not consist of the people and that there is some test of the person's suitability to carry out militia services. The "right" referred to in the Second Amendment is that of the people and not that of the militia.
With respect to militia weapons, the federal militia was constituted in 1792 (if my memory serves), and while the statute has been modified (last in the 1950s), all adult males ages 17-45 are members of the unorganized militia unto this day. If a state could deny its citizens the right to own arms of a type which are suitable for militia (i.e. military) service (e.g. limit ownership to single shot rimfire .22 LR), then the Congress could not call forth the militia as provided in Article I, Section 8 Clause 15. If the states could disarm the citizens then Article II section 2 clause 1 which empowers the President to command the state's militias would be meaningless. No reasonable form of construction for the Constitution can be accepted which makes its provisions (the Constitution's) meaningless. RP asks us to believe an interpretation which would make it possible for a state governor to collude with a foreign power to take over the state and tyranize the citizens (hey kind of sounds like the UN today, huh?).
By congress is not in the amendment. Only our current crop of activist judges seem to be reading things into the Constitution which are not there nor if they took the time to read the Federalist Papers were not intended to be there.
One has to work at writing a modifying statement which negates the second portion of the phrase "the right of the people to keep an bear arms shall not be infringed".
It would have to be something like this:
"Because guns can kill people you can ignore the following: the right of the people to keep an bear arms shall not be infringed". But that is obviously not what the framers of the Constitution intended.
Try it. I am sure someone can come up with a phrase which modifies the RKBA but it will strange and convoluted.
I would be interested to hear what Billybob has to say about the applicability of the BOR on the states subsequent to passage of the 14th Amendment, especially since the debate in the Senate clearly indicated that the intent was to apply the BOR to the states (as I quoted from the Congressional Record earlier on this thread).
Not a problem. Perhaps we both need to get a life.
During my most recent reading of the Dred Scott decision, I am struck by the short-shrift given to the fact that there were free blacks living in various states at the time of our nation's founding.
Taney et al. simply suggested that everybody considered them just slaves without masters. By so doing, Taney avoids the unpleasant realization that the only thing which separates a "citizen of the United States" who happens to be black and a slave is whatever economic value had to be provided in order to buy freedom for a slave.
The Dred Scott decision could as easily have found Dred Scott to be a free citizen of the United States and could have ruled that his prior owner should have recourse to civil proceedings to recover the lost economic value from the slave seller who sold him a defective product.
I would be interested to hear what Billybob has to say about the applicability of the BOR on the states subsequent to passage of the 14th Amendment, especially since the debate in the Senate clearly indicated that the intent was to apply the BOR to the states (as I quoted from the Congressional Record earlier on this thread).
225 RKV
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See #214, and don't hold your breath.
"Get a Rope."
"No"???
State law prevents you from carrying firearms in National Parks? State law prevents you from carrying firearms on a commercial aircraft? State law prevents you from carrying firearms within 1000 feet of a school?
Once again, it seems to me that you want to have it both ways.
When it suits disarmament, you support the idea that there are no "unalienable rights" and only rights enumerated in state constitutions cannot be infringed.
When it suits disarmament, you support the idea that the Second Amendment does not "create" or "confer" a right to keep and bear arms, despite having enumerated such a right by its clear prohibition against infringement.
When it suits disarmament, you support the fantasy "collective rights" concept to restrict the protections of the Second Amendment to militias, and not to the people explicitly protected by that amendment.
When it suits disarmament, you support exclusion of the unfettered right to keep and bear arms from the "privileges and immunites" which were enjoyed even by free blacks at the time of our nation's founding.
When it suits disarmament, you support ignoring the clear language of the Fourteenth Amendment, extending the privileges and immunities of United States citizens to the citizens of every state, by suggesting that states alone may decide what privileges and immunities citizens will have and that only "due process" is relevant.
We are about to become two nations, due to conflicts between Federal District courts which no amount of "compromising" can make go away. Just as Lincoln observed that the nation cannot continue half-free and half-slave, our nation cannot continue half-armed and half-disarmed.
I understand your view, but as you know from our previous discussion of this, I find the power to regulate arms dangerously arbitrary given the lack of any such provision within the amendment. What is to prevent the strict regulation of hazardous substances/weapons from applying to other arms?
Though it wasn't defined during the Convention's debates, we can assume it includes more than personal weapons: the amendment's purpose was to prevent the militia from being rendered ineffective -- disarmed -- before a standing army. Their ineffectiveness is just as certain if, while not fully disarmed, they are prevented from bearing arms of equal calibre to those of their (potential) opponent.
The supreme court has implied in the short shotgun decision which I cannot cite right now(I wish I could find it) that "arms" is what the military uses.
I understand your view, but
No, obviously you don't understand.
as you know from our previous discussion of this, I find the power to regulate arms dangerously arbitrary given the lack of any such provision within the amendment.
The power to reasonably regulate arms is protected by the rest of our constitutional rule of law. Prohibitions are not 'reasonable'.
What is to prevent the strict regulation of hazardous substances/weapons from applying to other arms?
Common sense law applied by rational men. - If we can't find rational 'lawmakers', we throw the rascals out & replace them. - If we cant throw them out we rebel. - Got the concept?
'Miller' decision.
Thanks.
To the left-wing, every order of regulation against arms is perfectly reasonable, as the weapons' very existence is thought to endanger the rights of others, common interests, or whatever justification may fall under the purview of police powers. We cannot replace the sizeable portion of our population that promotes and facilitates this tyranny, at best we can separate ourselves from them, which is why I subscribe to the States' rights view.
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
However, the Court applied this new doctrine piecemeal and selectively. One by one it "incorporated" various Amendments against the states. However, to date the Court has left the 2nd Amendment (and the 27th, also part of the BOR, out in the cold and unenforced).
Whether or not the incorporation doctrine is legitimate, it is probably too late to go backwards and reject that doctrine. However, it is clearly a dishonest doctrine as long as some parts of the BOR remain unenforced. (Sadly, intellectual dishonesty is, all too often, par for the course on the part of the Supreme Court.
I trust that answers your questions.
John / Billybob
Post Script: Sorry it took so long for me to get back to you. I was on the road all day today.
Police powers are used in the same way, as I explained in #236.
Do you honor the principles of our Constitution?
Yes. Do the courts? No.
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