Rewrite the Second Amendment?

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."

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.

I think the paragraph that immedietly precedes what you cited is the most compelling:

But on this Court's understanding of congressional power under these two Clauses, many of Congress' other enumerated powers under Art. I, 8 are wholly superfluous. After all, if Congress may regulate all matters that substantially affect commerce, there is no need for the Constitution to specify that Congress may enact bankruptcy laws, cl. 4, or coin money and fix the standard of weights and measures, cl. 5, or punish counterfeiters of United States coin and securities, cl. 6. Likewise, Congress would not need the separate authority to establish post offices and post roads, cl. 7, or to grant patents and copyrights, cl. 8, or to punish Piracies and Felonies committed on the high Seas, cl. 10. It might not even need the power to raise and support an Army and Navy, cls. 12 and 13, for fewer people would engage in commercial shipping if they thought that a foreign power could expropriate their property with ease. Indeed, if Congress could regulate matters that substantially affect interstate commerce, there would have been no need to specify that Congress can regulate international trade and commerce with the Indians.

Many argued that we didn't need a BOR either, since, if the power weren't granted, it couldn't be exercised.

But we have one, don't we?

We have Article I, Section 8. Why do we need Article I, Section 10? Seems to me we have quite a few redundancies in the U.S. Constitution.

But, let's go along with Justice Thomas.

Question: Do you think the framers of the constitution wrote the Commerce Clause with the intention that it may be subverted by individual states? Ken H cited Justice Thomas. Allow me to cite one Justice also, Justice Hughes:

"It is unnecessary to repeat what has frequently been said by this court with respect to the complete and paramount character of the power confided to Congress to regulate commerce among the several states. It is of the essence of this power that, where it exists, it dominates. Interstate trade was not left to be destroyed or impeded by the rivalries of local government. The purpose was to make impossible the recurrence of the evils which had overwhelmed the Confederation, and to provide the necessary basis of national unity by insuring 'uniformity of regulation against conflicting and discriminating state legislation.'

Texas Federalist said: "That seems to be a very easy standard for a defendant to meet.

I would prefer to think that it is a very difficult standard for a prosecutor to meet.

Even if one were to grant the Supreme Court the power to rule that there are some arms that are protected and others that are not, it would be yet another reach to suggest that it is a burden on a defendant to prove such a distinction in a court of law.

Well, I got a few minutes to read Thomas's opinion. There is more just in Thomas's opinion than I knew of the early history of the Commerce Clause. Other than that Marshall case on shipping there was no problems with it until the 1940's.

I said earlier my personal opinion was that "substantial effects" was an abuse of the Constitution. However, that is in the subjective nature of "substantial"- trivial effects are actually considered substantial by judges as Rehnquist pointed out.

Bear in mind that "intrastate activities that -have such a close and substan- tial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions- are within Congress' power to regulate.", and there is a huge amount of that today while there was little in our early years. It seems it is going to be very difficult to find a bright line for the courts. I wish Justice Thomas success.

Oh yeah, I forgot.

Would you care to define "correct reading"? I (truly) have no idea what this means.

Since Marbury v. Madison there is only the USSC intepretation and that is the "correct reading", like it or not. I can comment on that.

RE: The 1994 Federal AWB
Navegar Inc. and Penn Arms Inc. challenged the federal ban in 1995 saying that Congress exceeded its power to regulate interstate commerce when it outlawed such weapons in 1994.

A federal trial judge and the U.S. Circuit Court of Appeals for the District of Columbia upheld the ban, stating that the law was a permissible ``regulation of activities having a substantial effect on interstate commerce.''

This ruling was appealed to the USSC which rejected it without comment, thereby letting stand the lower court ruling.

Neither the 1968 Gun Control Act nor the 1994 AWB amendment were challenged on second amendment grounds. I have no idea what the courts would have said. No one, including the NRA, had the cojones to bring the case.

Now, in my opinion, the USSC should rule both statutes unconstitutional as a federal violation of "shall not infringe". Would the USSC rule that way? I doubt it.

"It seems it is going to be very difficult to find a bright line for the courts."

"Bright line" or not, the USSC is the final arbiter of "substantial effects". Bear in mind that this USSC (including Justice Thomas) recently struck down two Commerce Clause cases, the Violence Against Women Act (Brzonkala v. Morrison and United States v. Morrison, argued January 11, 2000), and the Gun-Free Schools Act [United States v. Lopez (93-1260), 514 US 549 (1995)].

So it's not as though the USSC is helpless in the face of an out-of-control Congress. Quite frankly, he ought to look in the mirror at his own activist USSC. All in one week:

"June 23 (Bloomberg) -- The Children's Internet Protection Act doesn't violate the U.S. Constitution's First Amendment, the court ruled 6 to 3. The 2001 law, which has never taken effect, requires libraries seeking a share of about $200 million in federal aid to install pornography-filtering devices on all computers available for public use."

"June 26 (Bloomberg) -- The U.S. Supreme Court struck down Texas's homosexual sodomy law, handing gay-rights advocates a victory that overturns a 1986 ruling and says people have a right to commit such sex acts in private."

"June 23 (BBC News) -- The US Supreme Court has upheld the right of a university law school (University of Michigan) to take race into account when deciding whether or not to allocate a student place."

And then, of course, we have this little goody: "On December 10, 2003 the United States Supreme Court in McConnell v. FEC upheld the two major portions of the Bipartisan Campaign Reform Act--soft money ban and issue ads. In the 300-page decision, 5 of the 4 Justices sided with campaign reformers on all but two issues in the case."

Yessir. Gotta watch out for that out-of-control Congress with that "Commerce Clause".

Now, in my opinion, the USSC should rule both statutes unconstitutional as a federal violation of "shall not infringe". Would the USSC rule that way? I doubt it.

I agree and I also doubt it. But maybe there is hope in a passage from the 1997 case of Printz v. U.S., where the Supreme Court struck down provisions of the Brady Bill requiring state law enforcement to conduct background checks for handgun purchasers. The Court struck down the provision because the federal government cannot compel state officers to act. Justice Thomas concurred and wrote: "[If] the Second Amendment is read to confer a personal right to 'keep and bear arms,' a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale and possession of firearms, run's afoul of that Amendment's protections." Hey, at least it's a ray of sunshine.

Neither the 1968 Gun Control Act nor the 1994 AWB amendment were challenged on second amendment grounds. I have no idea what the courts would have said. No one, including the NRA, had the cojones to bring the case.

I can't see the NRA making their first sustained push in the Supreme Court challenging the assault weapons ban because, even if the Court did find an individual Second Amendment right, they could too easily find that the assault weapons ban nevertheless passed strict scruitiny. I would look a more favorable case, like where an individual in Washington DC or other city that had a complete firearms ban used a firearm in self defense in his home and was arrested for possession of a firearm.

Would you care to define "correct reading"? I (truly) have no idea what this means.

"Correct reading" = "the meaning".

When asked what you think the correct reading of something is, you are being asked what you think the meaning is.

Now that that's settled, I'd like to get a clarification of your position.

In your opinion, based on how you understand the meaning of the actual words of the Commerce Clause, does Congress have the constitutional authority to ban assault weapons under the Commerce Clause.

Feel free to expound, but I'd appreciate it if you would include an unhedged "yes" or "no" in the answer.

Now, in my opinion, the USSC should rule both statutes unconstitutional as a federal violation of "shall not infringe".

That would seem to imply a "yes" to my question above, but I'd still appreciate an answer.

I said earlier my personal opinion was that "substantial effects" was an abuse of the Constitution.

I agree.

That raises a question on early constitutional history.

I was under the impression that although there were barriers and tariffs prior to 1787, there was a thriving trade among the several States in both Colonial times and in early years of the Republic. Is that correct?

Wasn't interstate commerce large enough at the time that the Commerce Clause was thought to be necessary by the Founders?

I would look a more favorable case, like where an individual in Washington DC or other city that had a complete firearms ban used a firearm in self defense in his home and was arrested for possession of a firearm.

The following would have been a good one. IIRC Ron Dixon was charged with disorderly conduct, not the gun charge.

[Brooklyn District Attorney Charles Hynes said,]"We're not disputing that Mr. Dixon had a right to shoot the person who broke into his house. But he had no right to have that gun."

-- New York City: Outlawing Self-Defense

Such a case would afford the USSC an opportunity to incorporate the Second Amendment.

I can see the advantage to incorporation in striking down some State and local laws which infringe the RKBA.

What about the negatives of incorporation?

From a constitutional standpoint, would an incorporated Second Amendment empower the Feds to pass and enforce restrictive gun laws more so than an unincorporated Second Amendment?

Due to a temporary glut on the world market, U.S. wheat farmers are going bankrupt. Congress, with the consent and approval of the people, passes a law which regulates the interstate shipment of wheat. This law, however, will be undermined and rendered impotent if individual states allow farmers to plant and harvest as much wheat as they want, for whatever purpose they want.
Question: Do you think the framers of the constitution wrote the Commerce Clause with the intention that it may be subverted by individual states? Ken H cited Justice Thomas. Allow me to cite one Justice also, Justice Hughes:
Allow me to cite George Washington:
"if, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield."

Question: Do you think the framers of the constitution wrote the Commerce Clause with the intention that it may be subverted by individual states?

Ken H cited Justice Thomas. Allow me to cite one Justice also, Justice Hughes:

"It is unnecessary to repeat what has frequently been said by this court with respect to the complete and paramount character of the power confided to Congress to regulate commerce among the several states. It is of the essence of this power that, where it exists, it dominates. Interstate trade was not left to be destroyed or impeded by the rivalries of local government. The purpose was to make impossible the recurrence of the evils which had overwhelmed the Confederation, and to provide the necessary basis of national unity by insuring 'uniformity of regulation against conflicting and discriminating state legislation.'

422 paulsen

______________________________________

Question: Do you think the framers of the Constitution wrote the Second Amendment with the intention that it may be subverted by individual states?
Allow me to paraphrase Hughes:

'It is unnecessary to repeat what has frequently been said by defenders of our RKBA's with respect to the complete and paramount character of the supreme power of our US Constitutional law.

It is of the essence of this power that, where it exists, it dominates. Our right to bear arms was not left to be destroyed or impeded by the rivalries of local government.

The purpose was to make impossible the recurrence of the evils which had necessitated our revolution, and to provide the necessary basis of national unity by insuring 'uniformity of regulation against conflicting and discriminating state legislation.'

"I would look a more favorable case, like where an individual in Washington DC or other city that had a complete firearms ban used a firearm in self defense in his home and was arrested for possession of a firearm."

We had a case like that here just last December. Given the level of public support for the homeowner, there was no way the Attorney General was going to prosecute the case. End result? Pass a law which makes it OK to have a gun, as long as it's used to shoot a home invader. Any other time, it's illegal. Clowns to the left of me, jokers to the right ....

"Earlier this legislative session, the Illinois Senate passed SB2165 with strong bipartisan support. SB2165 would provide an affirmative defense to a violation of a municipal ordinance that prohibits, regulates, or restricts the private ownership of firearms if the individual who is charged with the violation used the firearm in an act of self-defense or defense of another. The bill was drafted in response to a home invasion in Wilmette, Ill. during which the homeowner shot and wounded a home invader who broke into his home around 10:30 one night - the second break-in at that home in 24 hours. Subsequently, the homeowner was arrested and charged with a crime because Wilmette prohibits its residents from owning handguns. The homeowner's arrest sparked nationwide outrage over the fact that a citizen could be arrested for protecting his family from harm."
-- 4-22-04

We get a juicy case, and the gun-grabbers backpedal and write a compromise.

"In your opinion, based on how you understand the meaning of the actual words of the Commerce Clause, does Congress have the constitutional authority to ban assault weapons under the Commerce Clause."

Do you see something in the Commerce Clause that I don't? Some exception? Does it say, "Congress shall have Power To regulate Commerce ... among the several States with the exception of guns, drugs, pornography, and whatever we feel they shouldn't?

If you read further in the Federalist Papers, you will find that the Founding Fathers were against any standing military in the time of peace and it was their intention that the entire populace be armed always to be called upon in the time of war.

Even more interesting is that during WW-2, our gov't was basically broke, they had to call upon citizens to buy War Bonds to fund the war, and literally ask for dontaions of items for the troops. I can recall a woman on an antique show who had a pair of old binoculars from WW-2. The apprasier said they had no value ordinarily, but since she had produced a letter from the Gov't that showed that they were loaned to Gov't for the war, the battles that they had been used in and thanking her for the use upon thier return, they had significant historical value.

There was no income tax and the gov't didn't bilke it's citizens out of their money only to squander it on bloated buracracy as they do now..

Here's one cite, but not the one I was looking for:

"The Court’s decisions have tended to follow trade developments. In the early history of our county, only rare products were not produced locally. Markets were local and state regulations had little impact on commerce between the states.

In the 1800’s, though, the market shifted. People began congregating in cities and towns. Transportation improved, and more goods were produced for a national market. The Court struck down many state regulations on commerce clause grounds to protect the fledgling economy and encourage growth. These rulings placed the power to regulate this national commerce solely in the hands of Congress. Justice Harlan Stone has said that the Court’s interpretation of the commerce clause, more than perhaps any other single element, bound the states into a nation.

Commerce clause opinions during the 19th century illustrate some of the central concerns that the Justices had in trying to establish the proper role of the state and federal governments. The Court sought to preserve the territorial integrity of the states, while simultaneously acknowledging Congress’ power under the Constitution to regulate interstate commerce. Industries challenged many state laws during this period and succeeded in establishing a federal right that only Congress can regulate interstate trade."
-- alalm.org/Articles/Article3.htm

As I said, there were few federal statutes on interstate commerce for the courts to rule on prior to the late 19th, early 20th century. USSC rulings haven't "changed" -- they were simply created.

Ken H wrote:
"In your opinion, based on how you understand the meaning of the actual words of the Commerce Clause, does Congress have the constitutional authority to ban assault weapons under the Commerce Clause."

Under the Commerce Clause?
Yes.
And that was also the opinion of a federal trial judge and the U.S. Circuit Court of Appeals for the District of Columbia. And the USSC let that opinion stand "without comment". Do you see something in the Commerce Clause that I don't? Some exception? Does it say, "Congress shall have Power To regulate Commerce ... among the several States with the exception of guns, drugs, pornography, and whatever we feel they shouldn't?

How does a ban on owning an 'assault weapon' serve to regulate commerce "among the several states" , paulsen?

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