Posted on 12/31/2002 12:28:10 PM PST by ATOMIC_PUNK
California's Assault Weapons Ban does Indeed Violate the Constitution
By Robert Greenslade Published 12. 29. 02 at 19:16 Sierra Time |
The recent decision by the Ninth Circuit Court of Appeals concerning California's assault weapons ban will undoubtedly fuel the debate concerning the Second Amendment. The appellants in this case asserted: "the California Assault Weapons Control Act and its 1999 revisions violated their Second Amendment rights." In their opinion, the Court rejected this assertion "[b]ecause the Second Amendment does not confer an individual right to own or possess arms." Instead, the Court ruled: "the Second Amendment affords only a collective right to own or possess guns or other firearms." Since it is impossible to analyze these statements in a single article, this commentary will focus on another constitutional provision that invalidates every general assault weapons ban. During the debates in the Federal [Constitutional] Convention of 1787, there was an extensive debate concerning the militia. On August 23rd, a committee report was delivered to the Convention. The following clause was under consideration: "To make laws for organizing, arming & disciplining the Militia, and for governing such part of them as may be employed in the service of the U.S. reserving to the States respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed" "Mr KING, by way of explanation... the Committee meant... by arming, specifying the kind size & caliber of arms..." "Mr KING added, to his former explanation that arming meant not only to provide for uniformity of arms, but included authority to regulate the modes of fournishing, either by the Militia themselves, the State Governments, or the National Treasury..." This provision, with a slight modification in verbiage, was adopted as Article 1, Section 8, Clause 16 of the Constitution for the United States. In their decision, the Ninth Circuit acknowledged that the weapons California sought to regulate or ban are military type weapons. Since the word "arming" in Clause 16 includes individual citizens providing their own military weapon, no State can pass a general statute that negates or interferes with this constitutional provision. "This constitution, and the laws of the United States which shall be made in pursuance thereof;.shall be the supreme law of the land;.any thing in the constitution or laws of any state to the contrary notwithstanding." Under this provision, the Constitution and all laws passed pursuant to that document are the supreme law of the land. This means the "arming" provision enumerated in Clause 16 is supreme and above the California Assault Weapons Control Act. When a state law conflicts with a power enumerated in the Constitution, it violates the supremacy clause and is unconstitutional on its face. (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (1) the organized militia, which consists of the National Guard and the Naval Militia; and Since the California National Guard is a sub-component of the militia of the United States [i.e., State militias in the service of the government of the United States], and members of the militia can be required to provide their own military weapon pursuant to Clause 16, California's Assault Weapons Control Act cannot, under any circumstance, be applied to these two individuals. The Court's ruling on the Second Amendment also immunizes these individuals from the ban. If the Amendment only "affords" a collective right to keep and bears, as the Court claims, then these individuals have standing to assert a Second Amendment challenge as members of the militia. In addition, every individual between the ages of 17 to 44 who meets the qualifications referenced above, and is not a member of the National Guard or the Naval Militia, is a member of the unorganized militia of the United States. This means everyone from the 19-year-old college student to the 43-year-old doctor is subject to the "arming" requirement enumerated in Clause 16. Thus, there must be a general right to purchase and possess a military firearm or this provision would be an absurdity. Even if California could pass a general assault weapons ban, it could not prevent individuals between the ages of 17 and 44 from possessing this type of weapon because they could be required to report for federal service with that weapon in hand at any moment. It is also important to note that Clause 16 helps disprove some of the misconceptions being advanced concerning the Second Amendment. In their decision, the Ninth Circuit stated: "Our review of the debates during the Constitutional Convention, the state ratifying conventions, and the First Congress, as well as the other historical materials we have discussed, confirmed what the text strongly suggested: that the amendment was adopted in order to protect the people from the threat of federal tyranny by preserving the right of the states to arm their militias." Preserve the "right" from what? The federal government is a government of limited enumerated powers. It can only exercise those delegated powers granted to it by the Constitution. The Ninth Circuit would have us believe that the States, when they sent their delegates to the Federal Convention to revise the Articles of Confederation, authorized their representatives to grant the federal government the power to disarm their militias, and the States wrote and adopted the Second Amendment to prevent the federal government from exercising this constitutional power over their militias. If the Ninth Circuit had conducted the comprehensive review of the historical materials surrounding the adoption of the Constitution as it claimed, it would have found there is not a single fact that supports this ridiculous assertion. The California Assault Weapons Control Act is an unconstitutional encroachment on the exclusive power of Congress to prescribe the mode of arming the State militias pursuant to Clause 16 of the Constitution for the United States. |
1st ...The right of the people peaceably to assemble...
2nd ...The right of the people to keep and bear arms shall not be infringed.
3rd ...The right of the people to be secure in their persons...
I see a lot of things in the constitution that say "The People" What part do they not understand?
Or, alternatively, if they rule against the American people, who then find the entire constitutional contract between government and the governed to be null and void, with no more continuation of the legitimate authority for either a federal court system, or and federal government at all.
If the Second Amendment goes, so does Article II of the Constitution...and Article III.
-archy-/-
I wonder if he's a Freeper. If there's any help I can give him I will.
Gun manufacturers soon skirted the description of "assault weapons" to produce stripped-down guns that still can accept hi-cap magazines, and the antis are trying hard (and winning in CA and NJ among other places) to ban these too.
Soon, the term "assault weapon" may refer to anything that holds more than one or two low-powered rounds. The objective is to ban them all. Really.
So, in answer to your question, yes, I mind very much not being able to own an "assault weapon", and I will not comply.
Have I left any out? Are you worthy to be trusted with so much power? The State of Cali doesn't think so...
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