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
But it is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition.
Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty.
In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended.
These amendments demanded security against the apprehended encroachments of the General Government -- not against those of the local governments.
In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States.
These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them. "
Why would Congress vote to admit into the Union a state that knowingly compromised the security and freedom of it's citizens?
What state didn't?
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? -292- Mrs mith, your inablity to comment on my rebuttal to your defense of 'Barron', or to answer my question, are duly noted.
AFAIK every state met the requirements of the federal militia law when it joined, and provided a republican form of government. What state didn't?
-304-
Poor form mrs mith, as you didn't answer the question.
Calif "compromised the security and freedom of it's citizens" by [imo unknowingly] passing a constitution in 1848 that had no RKBA's provision.
-- Congress unknowingly compounded the error by allowing statehood without such a protection, little realizing the day would come when 'states rights' zealots would use that error to prohibit possession of "assault" type weapons. Why do you favor such gun prohibitions Smith?
Moreover, I don't think a "republican form of government" is sufficient in and of itself. It must be a republican form of government that is consistent with the structure and architecture of our republic, as laid out in the Constitution.
Your assertion here might be more reasonable if in other amendments it did not "Congress shall make no law..." The amendments are written as specifically as is warranted. Thus the 1st amendment, at least did not apply to the states which had no institutions denoted Congress. A universal ban does not itemize those to whom the ban applies because any itemization limits the application and is surmounted when other institutions are invented that are not specified in the ban. The 2nd does not ban any specific nstitutions from any activity. It bans the activity to occur at all.
A "living constitution"alist has recourse to the founders if he thinks he can use them to support some fashionable stricture not actually found in the WORDING of the Constitution. That gets you all sorts of echos and penumbrae, and nuances.
The reason for that is it would not have been ratified if it had.
The Bill of Rights was not in any fashion a grant of more power over the states or the people to the new government.
So what Founder can you take recourse to to support including "by a state" in the Second Amendment?
I'd appreciate hearing that as none of the living constitutionalists have so far offered anything but contempt for the Founders' to support their opinions.
No wonder none of you have a Founder to cite for your interpretations.
Or even think you should have one.
" ...in every inhibition intended to act on State power, words are employed which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course in framing the amendments before that departure can be assumed. We search in vain for that reason. "
John Marshall, Barron 1833
"All the restraints intended to be laid on the state governments (besides where an exclusive power is expressly given to Congress) are contained in the 10th section of the 1st article..." John Marshall, Virginia Constitutional Ratification Convention of 1788
(What an example of faithfulness to the constitution!)
Today's living constitutionalist never search in vain for something in the constitution. They just assume it means what they want.
Do you believe the "substantial effects" test, which uses the Commerce Clause to expand Federal power, is an example of living constitutionalism?
John Marshall, Barron 1833
For a Fifth Amendment case perhaps. Does the phrase "being necessary for the security of a free state" hold any particular significance to a state?
Most of the blame for the Commerce Clause's abuse has to be laid at the feet of the elected branches IMHO.
The feds are granted some power over the militia elsewhere in the Constitution.
But nothing in the Bill of Rights can be turned into a grant of power to the federal government ( before the Fourteenth Amendment).
They have the power to keep a state from entering the Union. It appears to be more a implication of responsibility than a grant of power.
Yeah, but that's not in the Bill of Rights. Am I missing your point?
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