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
Wow, -- coming out of the closet, are you?
-- Short barreled shotguns have been part of the standard issued military arms for hundreds of years. -- This is a 'given' to anyone who knows military weapons.
Why do you think short shotguns are 'evil'?
I don't share the court's erroneous opinion, I posted that so arthurus could view the important portion of the ruling.
The 'states rights view' claims that States can prohibit ANYthing a majority sees fit to call 'evil'.
Police powers are used in the same way, as I explained in #236.
Then why do you subscribe to a view that does not honor the principles of our Constitution?
Whether it honor's the principles of our Constitution is moot, but as I already wrote, "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."
Horsesh*t Billybob. Senator Jacob Howard of Michigan, introduced the 14th Amendment, specifically stating that the privileges and immunities clause would extend to the states “the personal rights guaranteed and secured by the first eight amendments.” What happened subsequently is that a bunch of Democrats hijacked the case law and created the partial incorporation or non-incorporation theories out of nothing. You know better - original intent does matter.
"IF there is an individual right to keep and bear arms, as referred to in the Second Amendment, and IF citizens of the United States are immune to federal infringement of such right, and IF such immunity is among the "privileges and immunities" due process (my guess is that the second amendment would be incorporated under this clause, not P&I) referred to in the Fourteenth Amendment, THEN why does my right to keep and bear arms depend in any way on the Constitution of California?"
At that point it wouldn't, since now the federal government and the USSC are defining the meaning of the second amendment, and the Supremacy Clause is in effect.
Sure they can. Article I, Section 8 Clause 16 allows the federal government to "provide for organizing, arming, and disciplining the Militia ..."
What's the problem?
"RP asks us to believe an interpretation ..."
What????
The USSC is not allowed to confer citizenship. Congress is given the power in Article I, Section 8, Clause 4, "To establish an uniform Rule of Naturalization ..."
And therein was the problem, and that's why the 14th amendment was necessary.
Thank you for settling this issue.
By contrast, it was clear from most Members of Congress and most ratufying state legislatures that the BOR were intended, when written, to apply only to the states.
John / Billybob
Please read post #239.
Once again you find a way to disallow freedom when there is a way to recognize freedom. As I pointed out before, Dred Scott lacked only the economic value of a slave to be a free man. Since he was born in the United States, he hardly needs naturalization, he only requires freedom from slavery.
WHO thought that the BOR would be selectively incorporated? Please provide an act of "incorporation" which used the "due process" clause. The very word "incorporate" implies a process to include in the body of privileges and immunities. To what would the word "incorporate" refer if the issue is "due process"?
Would incorporation of the Second Amendment have any disadvantages with respect to Federal encroachment on the RKBA?
Does having the Second Amendment unincorporated help protect the RKBA from Federal encroachment?
And robertpaulsen said: "No. The USSC said nothing about "privileges and immunities" in the above case. The "P&I vs. due process" argument is a separate subject. "
robertpaulsen also said: It was thought that the U.S. Constitution BOR would be selectively incorporated under the P&I Clause of the 14th amendment. The USSC surprised everyone and used the Due Process Clause of the 14th amendment instead. Why? I don't know.
I think that you need to read Gitlow v. New York a little more carefully.
With regard to freedom of speech the decision states:
"For present purposes we may and do assume that freedom of speech and of the press -- which are protected by the First Amendment from abridgment by Congress -- are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States."
Since the court decided AGAINST Gitlow and ruled that his liberty was not deprived without due process, the question arises, how did the Supreme Court make the determination that freedom of speech was included among those liberties. Their reference to the First Amendment protection is only relevant in light of the "privileges and immunities" which are extended to citizens of the United States.
Ken H also asks:"Does having the Second Amendment unincorporated help protect the RKBA from Federal encroachment?"
The term "incorporation" is used to describe the glacially slow process whereby the Supreme Court accepts difficult cases and provides the freedom we seek from onerous state laws.
There is quite a controversy within the pro-gun community regarding which cases should be considered. Since I wish to have my infringed right restored in my lifetime, I don't feel that I have the luxury to wait for just the right case.
Those who believe that there is some optimum series of cases would probably prefer to see the smallest possible movement in each successive case.
Generally, the Supreme Court should decide cases which remove federal infringements prior to suggesting that the Second Amendment applies to individual states.
A decision that "shall not be infringed" is equivalent to "Congess shall make no law" would be a great start. This would shut down the unConstitutional system of FFLs, gun registration, the BATFE, and anti-bayonet laws. If only our Founders had been just a little more suspicious of government power. I am sure that they are rolling in their graves to hear me say that. A simple ruling that requiring a serial number on a firearm is an infringement would have almost the same effect.
Recently, the Massachusetts Supreme Court warned the legislature of Massachusetts that they needed to allow gay marriage. The government actually has no business interfering with what was a church matter for centuries, but the Massachusetts Supreme Court has taken a different approach to the problem of granting freedom.
In much the same manner, the US Supreme Court needs to warn the states that it will no longer facilitate gun control and it needs to warn the Congress that there may be need to start the amendment process with regard to WMDs or nuclear tactical weapons. This is long past due.
Once the US Supreme Court clears up the federal system, it would then be time to recognize that the "right" to keep and bear arms cannot be infringed by anybody, including the states. The encouraging trend in concealed-carry laws has already resulted in both Vermont and Alaska not requiring permits. Incorporation of the Second Amendment would require that all states stop infringing the right to carry a concealed arm.
Our nation survived pretty well for a century and a half with almost no laws restricting the right to keep and bear arms by free persons. As recently as 1934 the federal government disguised the National Firearms Act as a tax mechanism because it was obvious at the time that they could not do otherwise and still claim that there was no infringement. There is no justification to believe that we cannot continue to survive without anti-gun laws.
The quote was from the Senator who introduced the Amendment John. I would be like reading the McCain or Feingold on the CFR {disaster). Same story is true from the House as well (see John Bingham of Ohio for instance). You are just looking for a way to get your pet theory (partial incorporation) to work. Sorry to be so negative. I do respect your opinion - I just disagree and I think this is an important point.
It would certainly be a move in the right direction!
Once the US Supreme Court clears up the federal system, it would then be time to recognize that the "right" to keep and bear arms cannot be infringed by anybody, including the states. The encouraging trend in concealed-carry laws has already resulted in both Vermont and Alaska not requiring permits. Incorporation of the Second Amendment would require that all states stop infringing the right to carry a concealed arm.
My $64,000 question--
Would it make any difference in how and where a restrictive Federal gun law would apply if the Second Amendment is incorporated versus unincorporated?
I would further recommend "The Right to Keep and Bear Arms under the Second and Fourteenth Amendments The Framers' Intent and Supreme Court Jurisprudence" by Stephen P. Halbrook for your reading John and for the others in this debate. When looking for original intent, see the part of the article where Halbrook examines the voting patterns of those who approved the 14th Amendment and how they also voted in favor (to a man) of the Freedman's bureau bills federally protecting 2nd Amendment rights. "When reintroduced after the President's veto, and as passed, the Freedmen's Bureau Act protected the "full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms". Cong. Globe, 39th Cong., 1st Sess., 3412; 14 Stat. 176 (emphasis added)."
Would incorporation of the Second Amendment have any disadvantages with respect to Federal encroachment on the RKBA?
Does having the Second Amendment unincorporated help protect the RKBA from Federal encroachment?
What I'm getting at is this:
Would incorporation of the Second Amendment open the door for the Feds to apply a restrictive gun law more widely than if it remains unincorporated?
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