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
Do you think that a correct reading of the Constitution means that no level of government may infringe the RKBA?
No, several are not. The Fourth, Fifth and Sixth for instance.
The purpose of the Bill of Rights was expressed in it's preamble:
"THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution "
I do not like the huge power a total incorporation of the first eight amendments gives the federal government, but that was apparently the intent of the Fourteenth's authors.
What these so called idiotic judges fail to realize is, if you chip away at the foundation of the house you live in long enough it will one day collapse on top of you.
Agreed.
I do not like the huge power a total incorporation of the first eight amendments gives the federal government, but that was apparently the intent of the Fourteenth's authors.
A proper reading of the Fourteenth Amendment means that the USSC would strike down State laws which violate the BOR.
The fact that Courts write their own laws and "remedies" is not the fault of the BOR or the Fourteenth Amendment.
The meaning of the Commerce Clause has been corrupted via the "substantial effects" doctrine to allow the Federal government to impose itself on State and local governments, as well as individuals.
When Congress passed the 1994 assault weapon ban, they used the Commerce Clause as its authorization.
As with the BOR and the Fourteenth, there is nothing wrong with the Commerce Clause and we do not want to get rid of it.
The problem is with legislators and judges who dishonor their Oath to the Constitution and twist the meaning for their own agenda.
It was clearly the intent of the Congress to incorporate the first 8 amendments when passing the 14th Amendment - see the Congressional Record quotes above. The courts have failed to follow this intent and are in error when they do so. Futher, others of the founding generation had different opinions than the ones you quote. In particular see Jefferson "At the height of the debate, in December 1787, Thomas Jefferson, then serving as ambassador to France, wrote a letter to his friend James Madison, one of the chief authors of the new constitution. 'A bill of rights,' Jefferson wrote, 'is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.'" I would add that the need for incorporation is no more clearly demonstrated than in the case of the 2nd Amendment. It was denied to the newly freed slaves in the reconstruction period for the express purpose of suppressing their political power - tyranny of the majority.
Are state constitutions written before, or after a state is admitted into the Union by Congress?
Of course the Fourteenth changed things. That's why I find it very, very silly that people try to retroactively make the Second Amendment apply to states.
What's their point other than to rub their "living constitutionalism" in our faces?
Of course they have also written- or rewritten- them after they joined too.
Notice Marshall's weasel wording qualifier, -"these amemdments"-. --- The BOR's amendments themselves need no such 'indicators', as the supremacy clause make clear that the States are bound to honor ALL of the constitution as the Law of the Land.
Marshall was trying to hold the union together with his erroneous 1833 Barron decision. His decision gave credence to the states rightists efforts to ignore our BOR's protections, necessitating the passage of the 14th amendment to end the controversy.
-- Needless to say, those who value State power over individual rights are still among us, subverting our most basic principle of personal liberty.
Why they are so obsessed is a true mystery. Can you explain it?
The preamble still does not alter the direction of the 2nd amendment. It is a fat prohibition against anybody doing any infringing.
I find it very silly to claim that CA can infringe upon our inalienable right to keep & bear 'assault style' weapons. -- Why do you do so, smith?
What's your point other than to rub your "states right concept" in our faces?
U.S. v Miller; Millers attorneys never showed up at the supreme court.that's the short version of how that ruling came about.
I believe every state has had a constitution before it joined the union. -smith-
Utah had to rewrite their state constitution several times before it was approved by Congress, and admitted as a state. Too bad CA was admitted without a RKBA's clause, aye? I guess it's just tough luck now for all the US citizens who move to CA and lose their inalienable right to bear certain types of weapons.
Can you tell us why this is must be so, smith?
Of course that doesn't matter to living constitutionalists.
What ever you think the constitution says- it does!
You have a lot of judges these days who think like you and your friends. And you and your friends are the reason why we do.
Oh I understood that, and it's quite correct. The Fourteenth Amendment constitutionally applied the BOR to the states.
These living constitutionalists don't understand that that is what happened. They don't even think it was neccessary to amend the Constituttion- just to decide it is 'better' for it to mean something else is sufficient for them.
I believe it was Scalia who said that living constitutionalist judges are happy because everything they think would be good in the Constitution-is!
If I may attempt to divine the rationale which those who value the erroneously named "states rights" supporters, I would describe it as follows, based on their historical use of this fraudulent doctrine. They want tyranny of the majority at the state level (by eliminating recourse to federal power to limit state power). See the post-bellum South and the treatment of the newly freed slaves for a case study (i.e. Jim Crow laws). BTW states have powers, not rights. Individuals have rights, which limit governmental power.
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