Posted on 12/06/2005 10:16:58 AM PST by neverdem
The Second Amendment: Citizens really are 'an army of one.'
SANFORD LEVINSON, a distin- guished constitutional law pro- fessor, wrote in the Yale Law Journal that the Second Amendment suffers from a lack of serious scholarship. Few law students envision the Second Amendment as an area of lucrative practice upon graduation. His article, "The Embarrassing Second Amendment," sent a shock wave through academia by suggesting that the amendment might actually mean what it says.
Issues involving guns have taken center stage in the cultural divide that separates Red and Blue America. Gun-control advocates point to the militia clause of the Second Amendment, arguing that it warrants a collective, rather than an individual, right to keep and bear arms. However, history--buttressed by the Founders' clear understanding--dictates that the amendment guarantees this right to individual Americans.
The U.S. Supreme Court has not dealt directly with the Second Amendment since 1939. Then, United States v. Miller held that a sawed-off shotgun was subject to registration because there was no evidence before the court that it had a military use. This opinion suggests that any demonstrably military weapon should enjoy the protection of the Second Amendment. The Supreme Court has conjured rights from the Constitution that do not exist in the text--while disparaging those rights contained in the document itself--leaving both sides of the gun debate cause for concern in any future rulings.
Oblique references in subsequent cases lend credibility to an individual-rights interpretation. The late Chief Justice William Rehnquist noted in a 1990 case, United States v. Verdugo-Urquidez, that the use of "the people" in the Bill of Rights was used not to avoid an "awkward rhetorical redundancy," but rather was chosen as a "term of art employed in select parts of the Constitution." He noted that the use of "the people" in the First, Second, Fourth, Ninth and 10th Amendments was within the context of protecting that class of persons who are part of the national community.
A guns-and-ammo mandate When adopted by the states, the Second Amendment generated no controversy. State and federal militia laws required citizens to keep arms and ammunition in their homes. These statutes specified everything from the number of cartridges to the amount of gunpowder that Americans were to keep on hand. Arms and accouterment for militia service were exempted from levy for indebtedness, and failure to have the proper equipment could draw fines.
The greater concern, as articulated by the great orator Patrick Henry, was how to provide guns to those who could not afford them. The bearing of arms was both a right and responsibility of citizenship, with arms being legally denied to those who were not citizens.
The militia--Richard Henry Lee, who put forth the motion to write the Declaration of Independence, described it as "the people themselves"--stood in marked contrast to the hated standing army. Equally despised was a "select militia" that excluded general citizen participation.
The very idea that citizens might be barred from militia membership was itself an indication of tyranny. To the Founders, a "well regulated" militia was capable of being directed in proper military order, serving those functions otherwise performed by a regular army.
The original purpose of the entire Bill of Rights was to prevent federal intrusion into the fundamental liberties of the people. The collective-rights interpretation contends that the militia clause limits the scope of the right to keep and bear arms, guaranteeing only that states can maintain a National Guard. The flaw of this interpretation is clear in the language of the Second Amendment, which secures the rights of the "people," and not the "states," to keep and bear arms.
The right to be armed for personal protection is well recognized by common law and preserved under the Ninth Amendment. The English Bill of Rights had guaranteed--in 1689, only to Protestants--arms for defense of self. William Blackstone wrote in his influential Commentaries that "Self-defense is justly called the primary law of nature so it is not, neither can it be, in fact, taken away by the law of society."
Defend thyself The U.S. Supreme Court reiterated, in the 2005 case of Castle Rock v. Gonzales, that government cannot be held liable for failure to protect the lives of its citizens. Personal self-defense remains an individual responsibility.
The Second Amendment serves two higher callings.
On a practical level, armed citizens provided the ultimate security against enemies and tyrants, without the cost of paid government forces.
On a philosophical level, the Founders knew that our ultimate success depended on the character of the people. George Mason wrote in the Virginia Declaration of Rights that "no free government, nor the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality and virtue."
Much is assured us by the Bill of Rights--but much is also expected of us.
The ideal citizen was self-determinative and self-reliant, while consciously dedicated to the common good. A willingness to defend self and country, with privately owned arms, was the crucial indicator of character. Citizens possessed of both power and virtue were necessary to continue a republican form of government. Indeed, the American paragon is the Minuteman, typically represented as a yeoman farmer, who goes back to the plow when his martial duty is done.
The Second Amendment guarantees our sacred rights, but also reminds us of our solemn responsibilities. Benjamin Franklin observed that "those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty or Safety."
The Founders meant what they wrote--even if, as professor Levinson indicated, some today may find it "embarrassing."
TOM MONCURE of Stafford County, a former assistant counsel to the National Rifle Association, now serves as senior counsel to the attorney general of Virginia.
"An armed society is a polite society. Armed men are citizens, disarmed they are mere subjects."
And, all too often, victims of those who disarmed them.
Well, I've got a patent for a point-detonating shotgun slug from 1991. The NFA didn't stop me. Although I did have some brief issues with the local constabulary until I rightly pointed out to them that there were no laws on the books to cover my invention (which is sold in very modest numbers only to the US military).
In its extreme application my little invention makes a shotgun into an effective light-anti-tank weapon. It won't take out a heavily armored MBT, but a BMP or similar vehicle is susceptible to the HEAT version.
Is is is or is is ain't?
Yes is is with one constraint
Is is never is becuz
Once you've said is is is wuz!
"But if any one should ask: must the people, then, always lay themselves open to the cruelty and rage of tyranny - must they see their cities pillaged and laid in ashes, their wives and children exposed to the tyrants lust and fury, and themselves and their families reduced by their king to ruin and all the miseries of want and oppression, and yet sit still? Must men alone be debarred the common privilege of opposing force with force, which Nature allows so freely to all other creatures for their preservation from injury? I answer: Self-defense is a part of the law of nature; nor can it be denied the community, even against the King himself." - Barclay, Against Monarchy.
The Second Amendment - Commentaries
http://www.freerepublic.com/focus/f-news/1016481/posts
Thanks for the link!
Funny, the meaning of "is" went through my mind when I read that post also.
I am constantly amazed at those that don't understand that sentence, that the comma means the same as "and".
that's just ammo tho isn't it? i'm referring to totally new weapon designs.
but that sounds like a really cool design.
link?
Link? I don't sell the bloody things over a website! The patent is currently licensed to a firm in Colorado that sells equipment only to military and LEO's. They only make a few thousand rounds per year of my little toy thus I don't make a lot of money on it.
My point, again, is that the only hassles I had when developing the thing was from the local county mounties. The Feds didn't bother me at all.
I'm no big fan of the Feds on guns and gun control, just pointing out that development is not a prohibited activity. If you want to develop a military application full-auto you can get a permit via any number of agencies to circumvent the ATF. DARPA is one of them.
Yep, just ammo. But it does change a shotgun into a more formidable weapon at a very low expense.
I understand your point and it is well taken. As far as "link", I'm just curious how it works. Thought maybe there was a tech review or something.
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.