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
The authors of the BOR weren't given to superflous prose. Those words are there for some reason. Why? What idea are they trying to convey, and what are the implications of that message?
I personally think the phrase comes from the relationship of the debate at the time to the militia powers of the new central government.
A good example of this concern, which implies the inclusion of that phrase, is a remark of George Mason:
"The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless — by disarming them...
Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army."
It's preferable to a Catch-22.
Irrespective of what what was said by the founders, since the 14th Amendment is now the law of the land, the first 8 amendments should be treated by the courts as having been incorporated given the wording of the amendment itself and the clearly stated intentions of its authors (particularly see how it goes directly opposite Dred Scott). I have already repeated excerpts from the Congressional Record which prove the original intent - see previous posts. The judicial theory of partial incorporation is a fig leaf for tyranny of the majority.
Ironically, the reasoning behind their intent proves the amendment, at present, more malignant than benevolent.
The 14th Amendment (XIV) was necessary to enforce the 13th. States were using their police powers to not only deny basic rights, but to virtually imprison the freed slaves in a condition not unlike their prior one. XIV remedied their predicament at the high cost of altering the structure of our government: States no longer could decide what limits were practical for our rights, as they were abusing this power to subjugate blacks.
Today, almost 140 years later, we have come full circle. The Federal government is the entity which denies us our rights, and thanks to XIV, where we must find redress. It is no more logical for us to appeal to the SCOTUS than it was for freed blacks to appeal to their State courts. California, and the other left-wing States, populate the Fed judiciary with judges who are just as sure to approve of infringements on the RKBA as they would be sitting on a State bench.
Tyranny of the majority indeed. The only solution I see is to repeal XIV, or reduce the scope of its influence.
Somewhat.
I'm not sure I understand your answer.
It seems to me that the Federal government is either reading things into the Commerce Clause or they are not. I don't see how an interpretation can be somewhat incorrect.
Judges use "doctrines" to try to match law to actual cases, just as mechanics use "rules" instead of actual physical laws to work on machinery.
Why isn't using a "doctrine", as opposed to the actual words of the Constitution, an example of living constitutionalism?
I think "substantial effects" is more a poor "doctrine" than a deliberate attempt at living constitutionalism.
What's the difference?
Most of the blame for the Commerce Clause's abuse has to be laid at the feet of the elected branches IMHO.
How could substantial effects be an abuse but not an example of living constitutionalism?
"The way to have good and safe government is not to trust it all to one, but to divide it among the many, distributing to every one exactly the function he is competent to. Let the National Government be entrusted with the defence of the nation and its foreign and federal relations; the State governments with the civil rights, laws, police and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man's farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best."
-Thomas Jefferson to Joseph C. Cabell, 1816.
I submit that the difference lies in how subjective you have to get to get from A to B. You are free to disagree.
I personally think the phrase comes from the relationship of the debate at the time to the militia powers of the new central government.
A good example of this concern, which implies the inclusion of that phrase, is a remark of George Mason: "The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless — by disarming them... Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army."
Sounds like Mr. Mason believed the national government should have some active role or interest in making sure the militia stays viable - you cannot "neglect" what is not your responsibility. How do you suppose they might go about doing that?
The New Deal Commerce Clause came about not by finding words in the Constitution that weren't there, but by finding meanings in the words that aren't part of the idea it was intended to convey.
I think of living constitutionalism as a judicial power grab rather than a legislative or executive one. The commerce and welfare clauses' abuses have been led by the elected branches instead of the judiciary.
I don't know how far I could show that is a useful distinction to make but I don't want to call every abuse of Constitutional powers "living constitutionalism".
Mason's remarks are a complaint he made at the Virginia Ratification Convention about the Constitution expressly giving the new national government an 'active role' in the State militias. Mason's concern was that those new powers it would have over the militia would allow it to disarm them.
That's why he wanted an amendment to protect the state militias.
To the everlasting pain of the "collectivists" Madison answered Mason's, and other anti-federalists', concern by barring the federal government from disarming "people" instead of "the militia".
The legislative and executive branches could not get away with Commerce Clause abuse if the judicial branch honored its oath to the Constitution. They are certainly co-conspirators.
You wrote:
Today's living constitutionalist never search in vain for something in the constitution. They just assume it means what they want.
Isn't that what all three branches have done with the "substantial effects" doctrine?
I don't know how far I could show that is a useful distinction to make but I don't want to call every abuse of Constitutional powers "living constitutionalism".
Do you agree that the substantial effects doctrine is an unconstitutional way to interpret the Commerce Clause?
Here again is George Mason at the Va. Ratification Convention:
"...Let us advert to the 6th article. It expressly declares, that "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; any thing in the Constitution or laws of any state to the contrary notwithstanding."
Now, sir, if the laws and Constitution of the general government, as expressly said, be paramount to those of any state, are not those rights with which we were afraid to trust our own citizens annulled and given up to the general government?
The bill of rights is a part of our own Constitution. The judges are obliged to take notice of the laws of the general government; consequently, the rights secured by our bill of rights are given up.
If they are not given up, where are they secured? By implication! Let gentlemen show that they are secured in a plain, direct, unequivocal manner. It is not in their power. Then where is the security? Where is the barrier drawn between the government and the rights of the citizens, as secured in our own state government?
These rights are given up in that paper; but I trust that this Convention will never give them up; but will take pains to secure them to the latest posterity."
There is just no way to turn any part of the BOR into a grant of more power to the federal government.
And just what was this "active role" they were given?
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"
Would you like a link to the Constitution?
Not necessary. In your opinion, how well have they carried out their responsibility?
So Mason was wise to be concerned wasn't he? (Amazing fellow that George Mason.)
Now the question is, is doing something that is an obvious abrogation of a constitutionaly mandated responsibily by Congress unconstitutional?
They don't have to exercise it, as Mason knew.
You can't "neglect" what isn't your responsibility. And I don't believe in power without responsibility.
The national defense has been met with an army.
There is no requirement in the Constitution that the federal government support the state militias. Mason noticed that.
And yet seemed to have some sense of an implicit responsibility that went with that power. Or was that a penumbra?
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