Posted on 03/13/2006 2:39:12 PM PST by Atlas Sneezed
The Second Amendment of the U.S. Constitution reads: 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. What does that mean exactly? Some 220 years later, legal scholars are still trying to figure it out.
The National Rifle Association supports the view that the Framers were speaking about individual rights when they wrote “the right of the People.” Gun control advocates have argued for the states’ rights model, which deems the key phrase “a well regulated militia,” and speaks only to a collective right that could be exercised by citizens rallying against federal tyranny or outside aggression.
Robert Weisberg, Edwin E. Huddleson Jr. Professor of Law at Stanford, says there is little consensus among academics about what right the amendment protects. “Some significant percentage of legitimate scholars would say there is substantial support for individual rights, though none of them would say it’s an absolute right. And there are plenty of legitimate scholars who say that constitutional history points the other way. Then there are some in the middle who just think it can’t be resolved: it’s unanswerable,” says Weisberg, who organized a two-day conference on gun control issues last fall.
Much of early American law was cribbed from British legal principles, including the notion that “rights” were synonymous with duties of citizenship. In the context of gun ownership, the language that speaks to persons bearing arms could be referring to citizen conscription in a time of need. A militia member was “an important civic figure, sort of a model citizen” whose willingness to take up arms against an occupying army was seen as essential to the security of the state, Weisberg says. Viewed through this historical portal, the idea that an armed militia extends gun rights to individuals is “an artifact of a model of citizenship that no longer exists.”
But Weisberg says one also could argue persuasively that owning guns for protecting the village or protecting one’s home are virtually indistinguishable. “Gun owners don’t lose their identities as individuals because they are members of a militia. There is a very close relationship between owning guns as part of the militia and owning guns period,” he notes.
In an influential 1989 article in the Yale Law Journal titled “The Embarrassing Second Amendment,” Sandy Levinson, JD ’73, a professor of law at the University of Texas, frames the issue by acknowledging the problem. “No one has ever described the Constitution as a marvel of clarity, and the Second Amendment is perhaps one of the worst drafted of all its provisions,” he wrote.
Levinson, though loath to give comfort to gun advocates, concludes there is ample evidence that the authors of the Bill of Rights were protecting citizens’ right to resist tyranny by use of force. Despite societal changes that would seem to render the notion of a militia irrelevant, he writes, “ ...it is hard for me to see how one can argue that circumstances have so changed as to make mass disarmament constitutionally unproblematic.”
The Supreme Court has done little to settle the matter. The case most often cited in the debate is United States v. Miller, et al, (1939) in which the Supreme Court reversed a lower-court ruling that had thrown out an indictment against two men accused of illegally transporting a sawed-off shotgun across state lines. The court said the law against the modified weapon was constitutional because a sawed-off shotgun has no “reasonable relation to the preservation or efficiency of a well regulated militia.” As is often the case when debating the Second Amendment, both sides claim Miller supports their argument.
One view maintains Miller aids the states’ rights model because the ruling implies that gun rights are only protected in the context of common defense. The other side counters: what if the weapons in question had been bazookas instead of sawed-off shotguns? The court might have ruled differently, they say, because it would be hard to argue that sort of weapon wouldn’t be useful to a state militia.
Since there were Supreme Court decisions involving the 2nd prior to 1900, there have to have been lower court decisions.
And where is such a list mentioned in any of the Federal or State Constitutions?
Must be hidden underneath all that "shall not be infringed" and "shall not be questioned" type stuff...
They record the purchase. It's not a registry.
The problem, of course, is that the victim disarmament crowd doesn't give a big rat's behind about any of this. It's all just a bunch of Euro-centric bigotry from dead white males - that's the gun-grabgber's take on what the Founders said. They're impervious to reason, facts and logic.
Doesn't leave much to debate with, does it?
Tis odd... unless you figure that the difficulty of interpretation is due to its clarity and the interpreters want to interpret the Second Amendment out of existence. But its clear language stymies them every time.
It's the old 'majority will' delusion again.
Makes no difference to him, - the majority can be in Congress or in Chicago, -- If they want a handgun ban, -- its the will of the people dontchaknow.
"They record the purchase. It's not a registry".
The PA State Police maintain a registry of all handguns as to make, model and serial number. They have been doing this for years.
That brought about a lawsuit against the State Police under the law "18 Pa.C.S.A. § 6111.4, “[N]othing in this chapter shall be construed to allow any government or law enforcement agency or any agent thereof to create, maintain or operate any registry of firearm ownership” within Pennsylvania."
The state Supreme Court said to hell with the law and upheld the "right" for the State Police to maintain such a registry.
The State Police do not keep a registry on long guns and shotguns.
Like I said before, you are always wrong. Give it up, man!
I would suggest that the professor spend some time in the Red Zone. He would find that the "artifact" model of citizenship is quite modern. His implied model, that of a serf, died in 1776.
Get modern or get out of the way......
"A rose by any other name..."
Not sure what is in the water where ever he is, but I'm betting it isn't healthy for you.
I guess it really doesn't matter. Why? Because they (whomever 'they' are) try to confiscate my weapons, there will be bloodshed (hopefully more of theirs then mine).
5.56mm
Properly regulated militia IMHO......
A decades old argument per se where the loser will be shot eventually.
Here is an interesting article, Joe:
Article Last Updated: 3/11/2006 02:36 PM
Troubling stint in jail sets Utahn on crusade
Gun laws: The arrest over a weapon for which he had a permit fuels a $3M suit
By Glen Warchol
The Salt Lake Tribune
Salt Lake Tribune
Correction: A report in Friday's Tribune incorrectly identified Gregg Revell, of Bountiful, and the Association of New Jersey Rifle and Pistol Clubs as co-defendants in a lawsuit filed against the New York and New Jersey Port Authority. They are the plaintiffs.
BOUNTIFUL - When Gregg Revell packed his bags for a trip to Pennsylvania last April, he had no idea how far he'd be traveling.
Before the week was out, the 57-year-old suburban real estate agent and grandfather would be arrested, thrown into one of the country's most notorious jails, strip searched and inoculated against his will. The soft-spoken Utah native would be on his way to becoming a poster child for the National Rifle Association in a $3 million lawsuit.
During a nearly five-day stay in a Newark, N.J., jail, he would meet a terrifying side of America that most Utahns see only on television and briefly would become a jailhouse mentor to drug dealers and violent criminals.
It started as a trip to pick up a BMW in Allentown, Pa., for a relaxing road trip back to Utah.
"I fix them up and sell them," Revell says. "Sometimes I make a profit. It's something I do for fun."
Revell, who has a Utah concealed weapon permit, usually takes a handgun with him for protection on his car trips.
Transporting a firearm in your luggage across country on an airline is not illegal, but involves some paperwork. Revell who has made a couple dozen such car-buying trips, knows the process. He fills out the Federal Aviation Administration paperwork, packs his .45 caliber pistol in a locked case, his hollow-point ammunition in another locked case and puts both in his checked luggage. He declares the gun to the ticketing agents.
"Sometimes I get a look, but it's never been a problem," he says.
Unfortunately, for Revell, his Allentown trip required a change of planes in Newark, N.J.
His plane was late arriving in Newark Liberty Airport and he missed his connection. Five hours later, he found himself boarding an airline chartered bus for Allentown, 90 miles away.
Revell also discovered his luggage had not made the connection. Northwest Airline agents apologized that his bags had been mismarked to stop in Newark. By the time he tracked the bags down, his bus had left and he was stuck overnight in New Jersey.
When he returned to the airport the next morning, April Fools' Day, and rechecked his bags - again declaring his handgun and ammunition - he was stopped by security officers of the Port Authority of New York and New Jersey.
"I wasn't the least bit nervous," Revell says. "I was only nervous about missing another flight."
Despite his explanations, Utah concealed weapon permit and his FAA document, Revell missed the flight because he was arrested and handcuffed: "I have never been arrested before. I have never felt anything degrading like that in my life."
"You don't have a permit to carry a gun in New Jersey," a Port Authority officer told him, according to Revell. "And you don't have a permit to carry hollow-point ammunition."
"I asked an officer if this had something to do with April Fool's Day," Revell remembers. "He said it most certainly did not."
In 1986, Congress passed the Firearm Owners Protection Act (FOPA) for citizens who are transporting firearms through various jurisdictions.
"Law abiding citizens who happened to wander into anti-gun jurisdictions could wind up being harassed and imprisoned," says Scott Bach, a New York-based attorney and member of the NRA board of directors. "FOPA was passed to end abuses."
Under the law, a citizen can transport an unloaded gun between two jurisdictions that don't prohibit it - as long as it is locked in a hard case with the ammunition locked in a separate hard case, "regardless of what local law says," explains Bach.
The law is routinely violated in "anti-gun" jurisdictions, Bach says, notably New York, Los Angeles and New Jersey.
Revell soon found himself in Newark's Essex County Jail.
"It is the lowest, it is the worst and it has the most hardened criminals of any correctional facility in the nation," says Bach. "It is horrific."
Revell, who would spend nearly four days in the jail, agrees.
"The jailers asked me, 'What the heck did you do to be in here?' They felt bad for me. But there was nothing they could do."
A judge set his bail at $15,000 and required the amount be paid in cash, not through the usual bail-bond arrangement.
"It's tough to come up with $15,000 on a weekend," Revell says.
While his family back in Utah got the money together, he spent nearly five days in jail, sometimes in holding cells crowded with 28 other prisoners.
"People were passed out on the floor in their own vomit," he says.
Prisoners were strip-searched in an a public room.
"For the only person with a white butt in a jail with 1,000 people, it was not a good situation," he says. "I could have given some people some ideas."
Revell figured that for survival, "I'd better make friends as fast as I could."
He listened to the hard luck stories of his cell mates.
"I would give them encouragement because a lot of them weren't very happy to be there. Because I was older than everybody, I was known as 'Pop.' ''
Everyone knew he was in on a gun charge, and some prisoners assumed it was for a violent crime.
"They all talked jive. It was hard for me to understand," Revell says. Until one of them asked him, "How many people did you waste?"
After a heart-to-heart with the prisoner, the man asked Revell if he would get him guns. "He would give me a great price."
Several prisoners befriended Revell despite the suburbanite's many faux pas, such as asking about their tattoos.
"There are some tattoos you just don't ask about," he says. "But some people would stand up for me if there was a problem."
His jail savvy friends told him they were in a tuberculosis quarantine for a few days, but after testing would join the rest of the jail.
"We can't protect you when we get in with the general population," his friends warned Revell.
"That scared me."
Hours before being transferred into the general prison population, a bail bonds employee finally showed up with the bail money. Ultimately, the bail was lowered, but by the time he had met the bail bond company's requirement that he pay in advance for a bounty hunter to track him back to Utah if necessary, Revell was out $20,000.
He was also 10 pounds lighter and had a blister on his arm from a tuberculosis inoculation. But he was free.
"I took the best shower of my life."
Within two months, prosecutors dismissed the charges against him. New York and New Jersey Port Authority officials did not respond to requests for an interview.
But the Utahn's story had come to the NRA's attention. The NRA is funding the $3 million lawsuit filed in January in federal court in New Jersey against the Port Authority. Revell and the Association of New Jersey Rifle and Pistol Clubs are plaintiffs.
Though he had grown up in a hunting family and had a concealed weapon permit, Revell had never been a guns-rights activist or even a member of the NRA.
"I am now," he says. "As is my wife."
The $3 million damage figure was set to make sure the case gets the attention of airports across the country, says Bach, who is president of the New Jersey gun clubs association.
"Unfortunately, that's the way things work," Revell says. "We want to get the laws adhered to or get new laws made if we need to do that. If I should win, a fair amount of the settlement will go to the NRA as a donation."
Revell never got his .45 back; Essex County never responded to his lawyers' requests.
But he did drive the BMW home from Allentown despite his traumatic experience.
"My family offered to fly me home," Revell says. "But I told them I needed a few days to clear my head. It was good to have a little thinking time."
http://www.sltrib.com/utah/ci_3588120
RP will love this story. He is a big fan of the government abusing citizens for no reason, even if it is against the Constitution or against the law.
While anyone familiar with the law can see this IS an "assault weapon":
Plain as day, right? Well, I'm not fooled. The libs wanted to ban guns they thought were just too ugly. The so-called "Assault Weapon Ban" was a stupid, foolish, very poorly conceived law that certainly infringed on the law that Shall Not be Infringed.
My thanks to Model1Sales for handly gifs to link to. (www.model1sales.com)
It's a database of handguns purchased after 1995. It is not a registry. In fact, the legislature expressly prohibited it. Under Act 17, Section 6111.4. Registration of Firearms, it clearly states:
"Notwithstanding any section of this chapter to the contrary, nothing in this chapter shall be construed to allow any government or law enforcement agency or any agent thereof to create, maintain or operate any registry of firearm ownership within this Commonwealth."
It is amazing that after 215 years of American jurisprudence such noteworthy and esteemed scholars as Messrs. Tribe, Larue, Nowak, Rotunda, and Young are still trying to figure out the 2d Amendment.
Today, our esteemed Constitutional Scholars find themselves arguing and interpreting the 2d Amendment in terms of "modalities," legal grammar," and "rhetorical structures." They identify such "law talk" as textual argument, historical argument, structural argument, doctrinal argument, prudential argument and ethical argument.
I am sure they use these "scholarly" inventions in arguing cases before the SCOTUS. Nonetheless, without “Rhetorical Structures” the Founding Generation, gave us, in scintillating clarity, their reasons for the 2d Amendment. Given so startling a difference in presentation, intent and content, I can only assume our esteemed "scholars" need such inventions so they may obscure what the Founders plainly told us.*
Between 1776 and 1791 the States and the People gave us thirteen State Constitutions, The Articles of Confederation and the U.S. Constitution. Comparisons of their like clauses, said in different ways, provide a clear view into the Early American's Constitutional Intent.
I suggest Messrs. Tribe, Nowak, Rotunda, Larue and Young read those Constitutions and take U.S. Constitution and the Second Amendment seriously.
I don't know anything about RP ~ I do know that NY and NJ have some of the most draconian gun laws in the country.
I sent it to Kevin, they guy who runs OFF (http://www.oregonfirearms.org) our state's gun Rights advocacy group. He is from NY and said that kind of stuff goes on all of time.
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