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
I think I see what you're getting at - if unincorporated, the feds will lay off and leave it to the states. I still think it's better if it's incorporated. It gives us more tools to use to defeat gun legislation.
You are probably right, I looked at the case real quick just to find the context for Thomas' quote.
The exact same way as a ban on drugs or a ban on wheat, or a ban on child labor, aine.
BTTT
"I still think it's better if it's incorporated. It gives us more tools to use to defeat gun legislation."
If incorporated, just keep in mind that Congress and the USSC will be bound only by the wording of the second amendment, ambiguous as it is. They may decide that "bear arms" does not include concealed carry. That "keep arms' means in a public armory. That "arms" means a muzzle-loading rifle only. Or even that the second amendment only protects a "collective right" of the militia. ALL states are then bound by those decisions.
I like the state constitutions that read (like Maine): "Every citizen has a right to keep and bear arms and this right shall never be questioned". No confusion, no misinterpretation, and it's highly unlikely that the citizens of that state would allow their legislature to go against it.
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?
The exact same way as a ban on drugs or a ban on wheat, or a ban on child labor, ---
According to you, drugs are dangerous, & thus can be 'banned', overproduction of wheat can ruin our economy, thus be banned, and child labor banned as a criminal act, -- all under the power to regulate commerce?
What is dangerous, can ruin our economy, or criminal in merely owning an 'assault' type weapon?
Well, if they must rewrite it..Muttly wouldn't mind if they just changed the Original to ALL CAPS.
"--- just keep in mind that Congress and the USSC will be bound only by the wording of the second amendment, ambiguous as it is."
Typical of the closet anti-gun crusader, -- insist that the clear words of the 2nd are "ambiguous".
You 'out' yourself once again paulsen.
Geez. Look it up yourself. The reasons are given in the legislation.
Under the Commerce Clause? Yes.
Now you're saying that under the Commerce Clause, the Federal government can ban assault weapons. But, in the the following exchange you say different:
tacticalogic wrote: I'll be happy to withdraw the question if you can explain why Commerce Clause legislation must comply with the Fifth Amendment, but not the Second.
robertpaulsen responded: No, it has to comply with the second.
I ask again, how can you say the Constitution does not allow the Federal government to infringe the RKBA, but at the same time, the Constitution allows the Federal government to infringe the RKBA?
Do you see something in the Commerce Clause that I don't? Some exception?
It is robertpaulsen who sees in the Commerce Clause the authority to infringe the RKBA.
robertpaulsen also says the Second Amendment means the RKBA shall not be infringed by the Federal government.
Which is it?
I think I see what you're getting at - if unincorporated, the feds will lay off and leave it to the states. I still think it's better if it's incorporated. It gives us more tools to use to defeat gun legislation.
Agreed, but my question had more to do with Federal power under the Constitution to enact and enforce Federal gun laws.
Let's say the Feds passed a law that banned concealed carry of firearms in the US.
Would the incorporation status of Second Amendment affect the Feds authority to enforce that law within a State?
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?
The exact same way as a ban on drugs or a ban on wheat, or a ban on child labor, ---
According to you, drugs are dangerous, & thus can be 'banned', overproduction of wheat can ruin our enonomy, thus be banned, and child labor banned as a criminal act, -- all under the power to regulate commerce?
What is dangerous, can ruin our economy, or criminal in merely owning an 'assault' type weapon?
Geez. Look it up yourself. The reasons are given in the legislation.
Wrong again paulsen. -- Constitutional reasoning is NOT given in such 'legislation'. As you well know.
In any case, -- why do YOU defend violating our right to own assault weapons?
You asked if Congress can ban weapons under the Commerce Clause. I said yes. The U.S. Circuit Court of Appeals for the District of Columbia said yes. The USSC let it stand, "without comment". WTF don't you understand?
Now you bring up the second amendment. What does that have to do with the above? Why don't you just go ahead and bring up the fifth? The ninth? The tenth, while you're at it?
They can, and did, ban weapons under the Commerce Clause. That doesn't mean they could have constitutionally done it under the second amendment (or any other amendment), which was tacticalogic's question.
You're mixing apples and oranges, here. I'm done.
This has been going on for a couple of days now, with no resolution in sight. At some point you have to consider the possibility that it might be a case of making contradictory statements purely for the purpose of stirring you up and getting you to waste your time trying to get an explaination.
It is not magic thinking. The law professors, who are refugee lawyers from the real world, teach the anti-individual rights left dogma of the 2nd amendment. The 9th is consistent with their socialist professors.
If you think universities are the last bastion of communism, then law schools are the last bastion of the commie elite inteligencia.
Perhaps we need common sense law school control. Make some of these law professors work for a living. Regulate the number of law schools permitted in a state.
Under the commerce clause or the Second Amendment?
No, I did not ask if Congress can ban weapons under the Commerce Clause. I asked if you, robertpaulsen, believe the words of the Commerce Clause mean that Congress can ban weapons. Here's the quote:
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.
I was not asking how the Court has ruled or what Congress has said or done. It is a question about what robertpaulsen thinks the words of the Constitution mean.
Same thing with the Second Amendment. I am not asking what the Courts or Congress said. We all know what they said.
I am asking what you, robertpaulsen, think the words of the Second Amendment mean.
You, robertpaulsen, independent of what the Court or Congress says, believe the words of the Second Amendment mean that the RKBA shall not be infringed by the Federal government, correct?
So I ask again, do you, robertpaulsen, believe the words of the Commerce Clause allow the Federal government to infringe the RKBA such as the assault weapon ban? Not the Court, not Congress, I'm asking for robertpaulsen's understanding of the words of the Commerce Clause with respect to the RKBA.
They can, and did, ban weapons under the Commerce Clause.
Correct. Does robertpaulsen (not the Courts, not Congress) believe this is a Second Amendment violation?
I think you are a little too optimistic when you say "if unincorporated, the feds must lay off and leave it to the states." You know that the feds will still try and get their gun control legislation to pass strict scrutiny. Heck, the First Amendment sure didn't stop the feds from passing CFR.
I con't see how it would. The incorporation status would only affect whether state and federal, or just federal laws would be subjected to strict scrutiny.
That possibility has crossed my mind:)
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.