Posted on 12/16/2002 8:10:29 PM PST by Dallas
When the 9th Circuit Court of Appeals in San Francisco earlier this month upheld California's assault-weapons ban, it said the purpose of the Second Amendment was to maintain effective state militias, not to give individual Americans a right to bear arms. Thrilled gun-control proponents claimed a major victory and predicted further victories once the Constitution is eliminated as a barrier to any and all gun controls.
But they should be wary of what they wish for. More gun control could be achieved if the courts accepted a different interpretation of the Constitution, the one held by the National Rifle Association (NRA), Attorney General John Ashcroft (news - web sites) and the 5th Circuit Court of Appeals in New Orleans -- that the Second Amendment gives individuals a constitutional right ''to privately possess and bear their own firearms.''
That would open the door to a national registry, a database on the whereabouts of every firearm and a critical precondition to such controls as comprehensive licensing and ballistic fingerprinting. A national registry would require that when guns are sold and resold, the seller and buyer submit paperwork to the government. Police then could trace a bullet or spent shell casing to the owner of a murder weapon. It would also enable the police to determine from whom and where an unlicensed gun owner obtained his firearm.
Database needs support
An effective registry, however, cannot be created without the cooperation of tens of millions of gun owners who fear that registration would lead to confiscation, as happened in Great Britain after the 1996 school massacre in Dunblane, Scotland. Gun owners must be secure in the belief that they enjoy an inviolate constitutional right to keep and bear arms. If the Constitution were read to guarantee U.S. citizens a right to possess firearms, gun owners might support firearms registration and other gun controls aimed at preventing and solving gun crimes.
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.'' The NRA and millions of gun owners, focusing on the second clause, believe that the amendment guarantees adult Americans with clean records the absolute right to possess and even carry weapons. Gun-control proponents, emphasizing the first clause, argue that it guarantees the states only the right to control their militia units.
Ironically, in their zeal to eliminate the Second Amendment as a barrier to unrealistic gun controls, the gun controllers have in fact constructed a huge obstacle to achieving any gun control, including ballistic fingerprinting.
Incredibly, the Supreme Court has not decided a Second Amendment case in almost 70 years. Just recently, the court declined to review the 2001 case in which the 5th Circuit Court of Appeals agreed with the individual-rights theory. This long period of Supreme Court silence has given gun owners the time to develop and nurture a confident belief that the Second Amendment is a vital individual right, just like and just as important as the First Amendment right of free speech.
A different interpretation
If the Supreme Court were so inclined, it could easily render a strong individual-rights interpretation of the Second Amendment. There is a mountain of impressive scholarship supporting that view, some of it produced by mainstream and even liberal constitutional law theorists. A decision -- especially a unanimous one -- recognizing that the Second Amendment protects individuals, not states, would change the whole nature of the gun-control debate by paving the way for a national registry that makes ballistic fingerprinting, comprehensive licensing and other forms of regulation possible to implement and enforce.
In the end, such action probably would not entirely prevent tragedies such as the recent Washington-area sniper murders. But it could save lives and help capture criminals by enabling the police to trace a bullet or casing found at a crime scene back to the owner of the gun that fired the bullet.
James B. Jacobs is the Warren E. Burger Professor of Law and the director of the Center for Research in Crime and Justice at New York University Law School. He is also the author of Can Gun Control Work?
Regards, Slim
Hope yer cold gets better !!
Stay Safe !!
Regards, Slim
Sorry, but you're not reading the words based on the meaning at the time: Here's a direct quote from Federalist 29, by Alexander Hamilton, completely in context:
The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, nor a week nor even a month, that will suffice for the attainment of it. To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well regulated militia, would be a real grievance to the people and a serious public inconvenience and loss.
In context, "well regulated" means properly performing, or well disciplined, when referring to soldiers. This jives with a definition from 1690, as found in the Oxford English Dictionary, 1989, 2nd Ed.
It has nothing to do with control by any entity. It simply means what it says.
Mark
The First is already gone, to a degree. Look at campus speech codes. Try using the word "niggardly" in a Washington DC City Council meeting. The Left does not care about Law, they care about Power. They have confidence that they will be able to raise a mob to intimidate anyone who disagrees with them. That's why they need to disarm the middle class -- an armed man is very hard to intimidate, and it's even harder to recruit a mob of rent-a-thugs to go against him
It has nothing to do with control by any entity. It simply means what it says.
Agreed. Among the definitions of "regulate" the one most appropriate to the Second Amendment (actually, the entire Constitution, esp. Article 1, Sec 8) is "to keep in good working order". As in to "regulate" a clock so that it keeps proper time.
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