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Posted on 06/12/2002 11:39:25 AM PDT by Sir Gawain
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There is NO Constitutionally Sanctioned Gun Control!
By Deborah Venable Published 06. 11. 02 at 22:06 Sierra Time
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Okay, folks, we are in the final stretch here with our Second Amendment Rights and we had better change tactics or we will lose them forever! I’m really out of patience with this issue, and everyone who values freedom should be too! Let me reiterate – there is NO Constitutionally sanctioned gun control – none – nada – zilch! So why do all the folks who claim to believe in Second Amendment rights still put the stupid qualifications on it? It is no darned wonder we are losing this battle! The NRA, probably the most valuable tool against all-out gun grabbing we have, is so weighted down in political correctness that they are almost non-effectual on the issue. They do their wheeling and dealing to satisfy the liberal socialist agenda instead of steadfastly defending the intention of the Founding Fathers. The “right of the people to keep and bear arms” does not leave any room for the Federal government to place ANY restrictions on free people. Period. The only folks who should not have access to guns are those who are not free anyway. They are either locked up in jails or mental institutions. But if they are out on the streets with the rest of us, they have the same rights, and we had better start including everybody in the defense of those rights or none of us will have any! Does a building have to fall on everybody before they see that? It is not up to the government to determine who has what privileges. If anybody can read our Constitution and find the support for this line of thinking, they must be on mind-altering drugs or something. Same with believing that search and seizure is okay in some instances, or filtered speech is okay – for goodness sakes, read the Bill Of Rights again without the prejudice! ALL of our security problems would instantly dissolve if the government would butt out of the individual’s right to protect himself! Crime would diminish, prisons would be places where we put real law-breakers and the drug problems would take a gut punch like this “war on drugs” has failed to deliver. Society would get real polite again, and issues of morality would be well defined between good and evil, beneficial and detrimental, right and wrong. Those who would see the citizens of this country fall under some worldwide jurisdiction would quickly find out that they didn’t have as much power as they think they have. The elites who control every aspect of our lives by holding the purse stings of debt would be all but silenced while we set about to reestablish a monetary system of exchange that did not abide a cashless philosophy, horrendous taxation to run an immoral machine of evil control over us all. They could take their secret meetings and their inhuman agendas for world control and stuff them where the sun don’t shine, because a truly free people would never be duped by their arrogant wealth manipulations. The long and short of it is that achieving the American Dream is all but impossible unless we embrace the true meaning of freedom. The combination of useless legislation, tyrannical executive orders, and ungodly legal code would be dissolved in a sea of Natural Law and God given rights that would once again lead humanity out of the dark ages and into a world of beautiful justice, unlike any the world has ever known, but that the Founders envisioned. It all begins with a steadfast refusal to accept qualifications on what we know to be right! We can’t expect anyone who affiliates with party politics to accomplish the task of taking our country back. It will not happen. We need to stop thinking we can pick the lesser of the evils to lead us away from evil. We need to stop accepting promises made by people who have no allegiance to freedom – but instead benefit from world control elitists. The nine people who sit on the bench of the Supreme Court need to be reminded that they are not Gods – just people who are supposed to be literate enough to interpret the Constitution first and not seek out precedents from an immoral past to support continuing a long haul to tyranny. Some of us out here have not put our brains in the pickle jar yet! Do people exist who could pick up the reins of true representation of freedom and ride the horse of politics through the halls of justice and reform? I believe they are out there, shaking their heads and saying to themselves, “Why should I bother? Nobody cares, and I could never get elected anyway.” I hope they are out there, and I hope they will be recognized and encouraged to follow their aspirations for a free America once more. The kind of people I am talking about will openly condemn barricades to liberty, swear a solemn oath to God and country – and mean it, and throw their white hats into the ring full of black ones every single chance they get. These people could show us who they are by refusing to be whores to the mantra of gun control. That would be a very convincing first step. |
And precisely what do they get in return for their compromises? Nothing.
The NRA works so hard to be "moderate" (meaning always having a willingness to give the gun grabbers half of what they want this year and the other half next year instead of all at once), yet they are consistently painted as dangerous, foaming at the mouth, child-killing extremists by every reporter with a pen.
Hey, if they are going to execute you for a crime no matter what you do, you might as well commit it.
Actually, the Emerson ruling goes past that, I believe. IANAL, but the concept I have read is that of "strict scrutiny". Reasonableness, or being "rational", applies to all laws. They must be well-defined and must be crafted with the expectation that they accomplish a legitimate goal. "Strict scrutiny", however, is the criteria used to judge laws which affect rights. There is a burden on government to pass only legislation which addresses a "compelling interest" and the law must tread as lightly as possible on the right being infringed.
Emerson may yet get another day in court. The remand to the lower court means that Emerson will face trial. The trial judge will have to make decisions regarding the meaning of the law. Emerson will be able to challenge the details with regard to whether "strict scrutiny" will permit the law or not.
One area which will have to be covered are the circumstances under which Emerson regains his right to keep and bear arms. Where will the confiscated guns be? Who has the burden to care for them and return them to a person such as Emerson when he is no longer under a restraining order? To claim that this law treads lightly on the right to keep and bear arms but fails to protect Emerson's property, just because he "might" commit a crime while under a restraining order, is pretty hard for me to swallow.
If a person is imprisoned, then the government has an obligation to free him when his sentence is up. How is such an obligation carried out in cases like Emerson's. When does Emerson get a re-consideration of the restraining order so that he can have his guns back?
There are many hurdles yet to cross for the Lautenberg law and it may not, and should not, be able to cross them.
The reason why Ashcroft and Olsen filed the brief they did, was because they actually read the entire 2nd Amendment, which was not quoted in this opinion rant. Does the writer need a building to fall on him to see that the Amendment specifically uses the phrase, "well-regulated?" That can't be ignored, just because we don't like it. (And I support gun rights and individual ownership, including concealed carry laws)
We will win our arguments not solely with passion, but with precision and logic. The "new" position of DOJ is correct. First, the Second Amendment is the only Amendment in the Bill of Rights that has been narrowly interpreted and has been considered a "group right." Of course, since the Bill of Rights are individual rights of the people, this judicial fallacy has never held water. Accordingly, an individual right must read broadly, and any goverment effort to curtail that right must be subject to strict scruitney.
Second, there is no question that the language of the Amendment permits regulation by the government. Sorry, we can't ignore the four corners of the Amendment.
I subscribe to the idea that militia in the context of the Amendment refers to all able bodied people, as the term was used at the time. Thus, the militia reference is consistent with the individual rights aspect. However, the right to regulate same is not cured by that analysis.
As for a REAL analysis of the arguments, I submit the following article: Guns and the Constitution
Prof. Eugene Volokh, UCLA Law School
(from the Wall St. J., April 12, 1999, p. A23)
A federal judge in Texas has just done something no federal court had done in more than 60 years: He held that the Second Amendment protects people's right to keep and bear arms. If this decision is affirmed by the Fifth Circuit Court of Appeals, the case has a very good chance of going to the Supreme Court, which hasn't yet resolved this issue. And behind the narrow Second Amendment matter lies a deeper question about the utility of a written Constitution.
As in many constitutional cases, the defendant -- Timothy Emerson, a San Angelo doctor -- isn't the best of fellows. During Dr. Emerson's divorce proceedings, his wife claimed he had threatened to kill her lover. The state divorce court apparently made no findings on this, but entered a boilerplate order barring Dr. Emerson from threatening his wife.
Though this state order said nothing about firearms, a little-known federal law bars gun possession by people who are under such orders. Dr. Emerson not only failed to dispose of his guns, as the law required, but eventually brandished one in front of his wife and daughter. He was then prosecuted under the federal law, though for gun possession rather than gun misuse.
The instinctive reaction here is that Dr. Emerson is the very sort we'd like to disarm, trouble waiting to happen. But when the divorce court issued its order, Dr. Emerson hadn't been found guilty of anything. Had he been convicted of a felony, all agree he would have lost his right to keep and bear arms as well as his right to remain at liberty. Here, though, there was no trial, no conviction, no finding of misconduct or future dangerousness. So when the federal law barred Dr. Emerson from possessing guns, he was a citizen with a clean record, just like you and me. Hence his Second Amendment defense.
The hot constitutional question is whether the Second Amendment protects only states' rights to arm their own military forces, or whether it protects an individual right. If the states-rights view is correct, Dr. Emerson could have been disarmed with no constitutional worries -- and so could anyone else. But the Second Amendment's text and original meaning pretty clearly show that it protects individuals. The text, which is reprinted nearby, says the right belongs to people, not states. And in the Bill of Rights "the right of the people" refers to individuals, as we see in the First and Fourth Amendments.
Moreover, the Second Amendment is based on the British 1688 Bill of Rights and is related to right-to-bear-arms provisions in Framing-era state constitutions. The British right must have been individual; there were no states in England. Same for the state constitutional rights; a right mentioned in a state Bill of Rights, which protects citizens against the state government, can't belong to the state itself. So in the Framing era, the "right to bear arms" meant an individual right.
What about the militia? The Second Amendment secures a "right of the people," not of the militia; but in any event, as the Supreme Court held in 1939, the Framers used "militia" to refer to all adult able-bodied males under age 45. Even today, under the 1956 Militia Act, all male citizens between 18 and 45 are part of the militia. (Women are probably also included, given the Supreme Court's sex-equality precedents.) "Well-regulated militia" in late 1700s parlance meant the same thing -- "the body of the People capable of bearing Arms," which is how an early propsoal for the amendment defined it. And the individual-rights view is the nearly unanimous judgment of all the leading 1700s and 1800s commentators and cases.
Based on this evidence, federal Judge Sam Cummings concluded Dr. Emerson's gun possession (though not his gun misuse) was constitutionally protected. If the Second Amendment is to be taken seriously, then Judge Cummings was right, and the other lower court cases holding the contrary were wrong.
If, that is, the Second Amendment is to be taken seriously. The notion of a written, binding Constitution tells us it should be, but cases like this lead some to wonder. Why, they ask, should today's decisions be bound by the dead hand of the past? If we have a "living Constitution" onto which courts may graft new rights, why can't they prune away obsolete ones?
These are genuinely tough questions, which go far beyond just the Second Amendment, and which have been raised in past controversies by conservatives as well as liberals. Let me give a few responses.
First, government entirely by the sometimes hyperactive hand of the present also has flaws. The benefits of liberties, however real, are often less visible than the costs. When we see Dr. Emerson before the court, accused of making violent threats, it's tempting to treat the right to possess guns as a nuisance. But we don't as easily see the hundreds of thousands of people who use guns each year in self-defense, including separating spouses who defend themselves against would-be abusers.
Second, modern innovations that restrict traditional liberties are often oversold. Realistically, people willing to violate laws against violent crime will rarely be deterred by laws against gun possession. Conversely, if Dr. Emerson is the poster child for why some shouldn't have guns, he is equally an example of how the law could effectively punish people for misusing guns (by brandishing them in a threatening way) rather than just for having them. Maybe ignoring the Constitution is neither so valuable nor so necessary.
Third, while some think gun rights are "obsolete," others disagree. Since 1970, 15 states have enacted new state constitutional rights to bear arms or strengthened old ones; 44 constitutions now have such provisions. In the mid-1980s, nine states let pretty much all law-abiding adults get a license to carry concealed weapons; now the number is 31. A conclusion that the right is obsolete thus doesn't rest on any unambiguous consensus; it can rest only on the judge's personal policy preferences. Do we trust judges that much?
And finally, do we trust judges to determine when other provisions -- the Establishment Clause, the privilege against self-incrimination, the jury trial, the freedom of speech -- become obsolete, too?
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