The second amendment

Re: Second Amendment Poll

So would you agree that the Second Amendment has two separate and independent components: one stating that militias are necessary and the other guaranteeing the individual's right to keep and bear arms?

The means are not qualified by the object


SCOTUS has never stated such a position. That conclusion is a forced misconstruction of what the Miller Court said.



Thank you for quoting the passage that is being terribly perverted.

Please note that the Court does not address the right to keep and bear arms; it is only addressing the object of the Amendment. The Court is explaining why the Amendment exists, not the right. The Court has always recognized the right as existing before the Constitution and the Bill of Rights were written and held that the right to keep and bear arms is not dependent in any way on the Constitution for its existence.

The sentence you quote above clearly maintains that opinion; the Court is only stating why, "the declaration and guarantee of the Second Amendment were made."

The Court is not stating that the right is being granted or permitted to be exercised only in agreement with and limited to the object of the Amendment. How can you ignore that the Court is only stating that a contested law must be held up to the object of the Amendment; that when a gun control law is claimed to be violative of the Second Amendment, IT (the 2nd Am, not the right to arms) "must be interpreted and applied with that end in view."

It is this single passage from Miller that has been mutated and misrepresented into the justification for a myriad of unconstitutional, gun control enabling lower federal court decisions. It is not a mistake, it is a forced misconstruction to judicially "legitimize" the destruction of our rights.

Can you defend that misconstruction?

Re: The second amendment


This was supposed to be the first post, sorry . . .

I cast no vote in your poll; the correct answer is not there.

In answering your question, I will begin by first stating a founding principle of this nation; the rights listed and secured in the Bill of Rights are not created by such enumeration and their scope can not be discerned from nor can the right be legitimately constrained by the words chosen to secure them.

Once one understands that tenet, all the arguments for limiting the right based on the lexicon and linguistics of the 2nd Amendment lose their foundation and significance.

The language of the 2nd is inspected and has been found to be useful for the courts to explore why the pre-existing right to arms is secured. The purpose, the "why" a provision exists is called by the courts, the object.

The object of the 2nd Amendment is to forever enable the civil power to summon a large group of citizens at a moments notice and have them muster with appropriate arms and a couple days provisions, ready to take the field in defense of that civil power or their own liberties. How that circumstance is guaranteed, the means, to ensure that that recourse will always be available to both the civil power and the people, is to guarantee the right of the people to keep and bear arms, forever inviolate, disarming individuals only for crimes committed and after due process.

While the object of the 2nd Amendment is a collective exercise, the only means to achieve it is by securing the individual right to arms.

Does anyone need definitions? From Webster's 1828 Dictionary . . .

OB'JECT, n. 2. That to which the mind is directed for accomplishment or attainment; end; ultimate purpose. MEAN, n 3. Instrument; that which is used to effect an object; the medium through which something is done. In this sense, means, in the plural, is generally used, and often with a definitive and verb in the singular. SECU'RED, pp. Effectually guarded or protected; made certain; put beyond hazard; effectually confined; made fast.

The 2nd Amendment is merely a promise that must be kept to the people for this government to fufill its promise to the states of a Republican form of government. It will not really be needed unless the government tries to take it away.

Re: The means are not qualified by the object
I do not re-enter this debate with any great relish. In my experience on these kinds of forums, I have quickly discovered that there exists a small but vocal coterie of "enthusiasts" who have one abiding interest: guns. They join these forums to debate the Second Amendment, using the canned arguments drawn from dozens of websites, and contribute nothing else to the on-line community. Far from being participants in a debate, they are the mere uncritical vectors of someone else's falsehoods and distortions about which they know very little and understand less.

I am, therefore, reluctant to encourage these "enthusiasts" by engaging in another utterly futile attempt to discuss this issue rationally and intelligently, since I know that I will most likely not be engaged in a discussion at all but will rather act solely as a straight man for the ventriloquist dummies of the gun lobby. On the other hand, Pete_Sakes has addressed me directly, so I feel some obligation to respond. I will add, however, that this obligation is not unlimited, and I will leave this thread at the point where the discussion ends and the platitudes begin.


The Second Amendment is the only instance in the Constitution where there is a clause explaining the purpose of the provision. Under traditional principles of statutory construction -- principles which would have been familiar to the drafters of the Constitution -- such provisions are to be interpreted in light of the stated purposes. That's what Miller said, and it was quite correct in its holding.


That makes absolutely no sense. How can a court interpret the Second Amendment and not interpret the right guaranteed thereby? Apart from the explanatory clause, which is an interpretive aid, there is nothing else except the right to bear arms. Are you suggesting that the explanatory clause is there to explain itself?


My interpretation is the only one that makes sense legally, constitutionally, logically, and grammatically. Yours is the forced misconstruction.

Re: The means are not qualified by the object



You have certainly mastered the art of condescension:

For the record, I must disagree with you. I must strenuously debate your conclusion and argue that "my interpretations" of the law are the only ones that make sense legally and constitutionally. But, that's my opinion. LOL

Joe, do you know which status, if any, the 1688 English Bill of Rights had when the 1789 American Bill of Rights was written? I'm asking because all the authors had been Enlishmen before the declaration of independence, most English law continued to be valid after the revolution, and nobdy argued for a repeal of any rights as far as I know. The 1688 Bill did include a paragraph stating


It seems plausible to me that the author of the American Bill of Rights might have referred to this paragraph from the English Bill of Rights. But I'm lacking the legal background to tell whether this is actually the case.

Re: The means are not qualified by the object

It's a gift.


LOL indeed. Once you have ceased your laughter and sufficiently composed yourself, perhaps you could answer the question that I posed to you earlier. To refresh your recollection, I asked: "So would you agree that the Second Amendment has two separate and independent components: one stating that militias are necessary and the other guaranteeing the individual's right to keep and bear arms?"

Thomas: The English Bill of Rights had an enormous influence on the drafters of the American Bill of Rights. As for the particular influence that the English Bill of Rights had on the Second Amendment, I am not certain. I would imagine that the drafters looked both to the English example as well as provincial/state bills of rights in crafting their own version.

Well I do like discussing this topic, I am good at it because I have devoted the last 25 years to reading the founding documents and SCOTUS's approved commentators.

I also find certain typical characters engaging in the debate. The ones I find especially fun are the lawyers who wrap themselves with the cloak of the bar to hopefully lend their arguments weight. By and large though, their scholarship on the right to arms only extends to the few misconceptions their leftist professors wanted them to know. Rarely have they done any reading beyond the few cases presented in ConLaw and they are woefully unprepared for any discussion requiring critical thinking or worse, one touching on the founding principles.

Now that we have the condescension and stereotyping out of the way perhaps a discussion can ensue.



Correct, The purpose (intent or object) of the provision. Your mistake is grounded in your inability to accept that the right to arms and the 2nd Amendment are two entirely separate entities. The words of the 2nd Amendment do not constitute or delineate the right to keep and bear arms; SCOTUS has made this clear, explained it quite well in Cruikshank and has never deviated from that principle.



I agree with that statement; I disagree with your misunderstanding of it and the conclusion you draw from it. The "stated purpose" was why the pre-existing right was secured. The 2nd Amendment only exists because of the vital importance of the individual's right to arms to fulfill the militia concept.



My belief is that SCOTUS can have no import or even an opinion as to the extent of my rights. Their only function and duty is to rule whether a law, as enacted, exceeds the strictly defined and limited powers conferred in the Constitution. It may be a fine distinction, but it is one none the less.

Let's look again at what the Miller Court stated.

"With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

This is an statement taken directly from Aymette's premise that, "the people acting in a body, for their common defence, . . . is the [stated] object for which the right to keep and bear arms is secured." Under what justification can it be said that it is the guaranteed right that is being "interpreted and applied?"

The subject open to the court's consideration is the "obvious purpose" of the provision to, "assure the continuation and render possible the effectiveness of [the militia.]" When a law is contested that might violate the 2nd Amendment, the guideline for interpreting and applying the 2nd Amendment to said contested law is the AMENDMENT'S "obvious" intent to further and preserve the militia. The means to achieve that object, the citizen's pre-existing right to keep and bear arms is not subject to the court's "interpretation" because it exists independently of any Constitutional provision.

I recognize that my position is not the present reality; the lower federal courts have misread, misrepresented and misused Miller to create a complicated collective right interpretation from a simple collective object explanation. When those cases are examined one can see the policy driven decisions.



The right to bear arms is not "in" the 2nd Amendment; you are referring to the clause called the guarantee. That clause does not create the right, it merely recognizes its existence and forbids the federal government (including the judiciary) from ever acting against it.



Well, the first part is not an "explanatory clause", it is defined by both Congress (in the Preamble to the Articles of Amendment) and by SCOTUS as a declarative clause. It is (in my opinion) stating a maxim, an axiom, a tenet of this form of government. The freely armed citizenry is an inseparable part of a classical Republic and it is a basic principle of this nation. The debates of the benefits and liabilities to a government inherent in an armed citizenry go back to Aristotle and Plato.

The clause, "A well-regulated militia, being necessary to the security of a free state," is just one more in a long list of principles that were once considered a "self evident truth."



How can that be when you inject words and concepts into statements where such inclusion is illegitimate?

Please show me where the Miller Court ever states that it is the "right" which is subject to interpretation. The word is used only four times in the decision.

The "declaration and guarantee of the Second Amendment" is not the right to arms anymore than the right to privacy "is" the 4th Amendment. Please don't tell me it all depends on what your definition of "is" is.

They did refer to it; always in the negative.

Such restrictions and qualifications (landholding, title, religion) were unacceptable to the American founders.

You have asked an important question; I am going to offer an on point answer that is comprehensive. (That means long)

The Laws of William and Mary and the English Bill of Rights did rein in the King somewhat but many of the class distinctions and religious discrimination remained in effect in England. These were the distinctions and qualifications the founders opposed and sought to forever forbid in America. As you said, English law was the system the founders were familiar with and much of it did remain pertinent and serviceable for day to day matters.

Back at the founding of this nation the only legal textbook was a four volume exposition on the English laws of William and Mary written between 1765-70 by Sir Blackstone. As Congress and the courts became more productive and our laws and legal system departed more and more from the English, an American treatise on the law seemed necessary. A Virginia Judge and law professor by the name of St. George Tucker used his prolific record keeping and lecture notes to annotate all four volumes of Blackstone's familiar explanation of English common law with the changes and differences now found in the American system.

This was published in 1803 and it quickly became known as the American Blackstone. It was the first treatise on common law written for the needs and conditions of the American legal profession. The treatise consisted of Blackstone's four original volumes, annotated by Tucker, plus numerous appendices on American law and the Constitution. The now five-volume work was the standard course of study on American law for a generation. Every prospective lawyer of the period began his studies by reading Tucker's Blackstone, and some American lawyers may never have read anything else.

So you are asking, What's the point?

The point is what Tucker wrote about the 2nd Amendment. His opinion is in direct conflict with the modern misconstructions being taught in law schools today and which Joe thinks are true.

The importance of Tucker's opinion is cemented further when one realizes that when Tucker's American Blackstone was published, most of the founding fathers were still alive and many were still active in politics. They read it! So the question is, if the anti-gunners are right and Tucker was wrong, why was there no outcry from the founders regarding St. George Tucker's interpretation of the 2nd Amendment? Thomas Jefferson recommended Tucker's Blackstone as part of the course of study for aspiring law students, since Tucker's work was "the best source for overall mastery of American law." It seems James Madison, the father of the Bill of Rights, so disagreed with Tucker's legal scholarship that he appointed Tucker to the Federal bench in 1813.

Here is what Tucker had to say:

The second volume of Tucker's American Blackstone contains Blackstone's commentary on what Blackstone called the five "auxiliary rights of the subject." These were rights (such as the right to seek legal redress in court, and the right to petition) whose main purpose was to safeguard primary rights. Blackstone had written:

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence[fn40] suitable to their condition and degree, and such as are allowed by law[fn41]. Which is also declared by the same statute 1 W. & M. st. 2 c. 2, and it is indeed, a public allowance under due restrictions, of the natural rights of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

Blackstone was explaining the English Bill of Rights, which states as you quoted: "That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law."

Tucker added his own analysis in two footnotes:

[fn40] The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government. [fn41] Whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England. The commentator himself informs us, Vol. II, p. 412, "that the prevention of popular insurrections and resistence to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws ."

Tucker's footnote 40 echoed the language of the Second Amendment. He distinguished the American right to arms from its British antecedent by noting that the American right had none of the limitations that were contained in the British right. Tucker 's criticism of the English Bill of Rights paralleled Madison's criticisms in a speech to Congress introducing the Bill of Rights.

"They [proposed amendments] relate 1st. to private rights--fallacy on both sides--especy as to English Decln. of Rts.--1. mere act of parlt. 2. no freedom of press--Conscience ... attainders--arms to protestts." -- James Madison, Notes for Speech in Congress Supporting Amendments (June 8, 1789), in 12 The Papers of James Madison 193-94, Charles F. Hobson et. al. eds., 1979

Tucker's footnote 41 quoted Blackstone's description of the English game laws, with their restriction on the ownership of hunting weapons as having the covert intent of disarming the non-aristocratic population. In his commentary on the game laws section of Blackstone, Tucker added his own condemnation of British practice, contrasting it with the robust right to arms in America:

The bill of rights, 1 W. and M, says Mr. Blackstone, (Vol. 1 p. 143,) secures to the subjects of England the right of having arms for their defence, suitable to their condition and degree. In the construction of these game laws it seems to be held, that no person who is not qualified according to law to kill game, hath any right to keep a gun in his house. Now, as no person, (except the game-keeper of a lord or lady of a manor) is admitted to be qualified to kill game, unless he has 100l. per annum, &c. it follows that no others can keep a gun for their defence; so that the whole nation are completely disarmed, and left at the mercy of the government, under the pretext of preserving the breed of hares and partridges, for the exclusive use of the independent country gentlemen. In America we may reasonably hope that the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.

Tucker's American Blackstone contained several appendices, including a lengthy appendix analyzing the new American Constitution. Again, this was used as the only American legal textbook for many decades throughout the United States.

Although Tucker had addressed the Second Amendment in his footnotes to Blackstone, this constitutional appendix gave Tucker the opportunity for a fuller exposition:

This may be considered as the true palladium of liberty . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

Tucker holds that the right to arms in America is exercised without qualification or restriction; a militia requirement would have been just as unacceptable as a restriction based on religion.

Tucker's constitutional analysis remains powerful in modern times. For example, Tucker was the first scholar to argue that the First Amendment advanced far beyond English common law freedom of press. While freedom of press in England meant only freedom from prior restraints, Tucker argued that the First Amendment left Congress with no power at all to punish newspapers, even after the fact. Justice Hugo Black later observed that Tucker 's appendix set forth "the general view held when the First Amendment was adopted and ever since."

Justice Black was right to cite Tucker as the definitive source for original intent. "While Tucker published his [American] edition of Blackstone in 1803, he began writing it in 1790, as he prepared lectures for his courses at William and Mary. The ideas and arguments in his volumes are thus perhaps as contemporaneous to the Founding as it is possible to find." Because "[g]reat weight has always been attached, and very rightly attached, to contemporaneous exposition," the Supreme Court has cited Tucker in over forty cases.

I hope this answers some of your questions and illuminates some of the fallacies in the anti-gun position. The modern "collective right" interpretation is the new kid on the block and it is entirely without merit.

Other Constitutional experts, called "approved commentators" by SCOTUS all agree with Tucker. I would recommend Cooley and Rawle as very instructive. We can discuss them also if you would like.

Re: Second Amendment Poll



It isn't that simple.

Any constitutional analysis must begin with the evident truth that government is formed to secure inalienable rights that are bestowed upon each individual by virtue of birth alone.

There are no "constitutional rights" per se. Fundamental rights either exist or they don't. The existence of a fundamental right is not derived from the constitution. A fundamental right, however, is secured against governmental infringement by the supreme law of the land.

When our founding fathers determined to form a "republican" form of government, they did so as a means to secure individual fundamental rights from governmental infringement. We are supposed to be a nation ruled by law, not by the mob--not by the transient views of the majority. What our nation is supposed to be in contrast to what it actually is are two different things. We are basically a semi-unenlightened, but evolving society.

[At one time, the majority of the people believed that black people were inferior to white people and their condition of involuntary servitude was a necessary consequence of that inferiority and that slavery was actually good for them in a paternalistic sense. The supreme law of the land was unable to protect and secure the individual rights of black people until just recently in the grand scheme of time.]

The right to keep and bear arms is a fundamental right. The existence of this right does not rely on the existence of the Constitution--it does not rely on any judicial interpretation of the Second Amendment. Regardless of the purpose for including the Second Amendment in the constitution--regardless of whether having an armed citizenry is necessary to the security of a free state--regardless of any purpose our founding fathers might have declared in the Bill of Rights--the right of the people to keep and bear arms is a fundamental right that shall not be infringed by the government--and this right must be recognized within the context under which our government was formed--to secure the rights of all individuals.

The words of our founding fathers ring as true today as when the Declaration of Independence was written:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

Our government is far from perfect. In countless laws and regulations, our government infringes upon individual fundamental rights in every conceivable manner. Every now and then, our courts will figure this out and society moves forward. But, we do not live in an age of enlightenment and our society may continue to evolve for thousands of years and we may never attain true enlightenment. Despite constant backsliding, we are making progress--about an inch of progress every century.

As an example, all individuals have a fundamental and equal right to engage in the common occupations of our times. Even so, this fundamental right was not recognized for minorities and the female gender for centuries and centuries. In 1871, the United States Supreme Court held that the Fourteenth Amendment did not prevent the states from denying an otherwise qualified individual's application for a law license on the basis of gender.

See Bradwell v. Illinois (Justice Joseph P. Bradley, concurring):

"Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband's consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counselor.

"It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and can not be based upon exceptional cases."

http://search.eb.com/women/pri/Q00171.html

At one time, the United States Supreme Court held that a state may criminalize private sexual relations between consenting adult partners. The Court claimed that no person had a "constitutional right" to engage in sodomy. However, the Court has since determined that the people have a fundamental right to privacy--to be free from unwarranted governmental intrusions into their private affairs.

Our society is evolving--but slowly.

Our fundamental rights are not frozen in time--they have always existed, and always will exist--it's only a matter of recognizing them.

If our "fundamental rights" were only those that were recognized at a point frozen in time, then black people would still be slaves, women would still be denied the ability to engage in common occupations, and homosexuals would still be imprisoned due to their alleged "deviant" and "criminal" behavior. If that were the case, then the Supreme Court could determine that all able-bodied MEN (not women) have the "constitutional right" to own a musket (but no other firearm) and that right is limited to the extent that musket ownership is necessary to a well-regulated militia.

Constitutional scholarship reveals over and over again that judicial determinations are often based upon how the world state of affairs existed at the time the constitution was written as a convenient means or excuse to reach a pragmatic result that is acceptable at the time the opinion is written--but won't be acceptable a hundred years thereafter.

This is the best possible answer that I can give your query. Given today's political climate and extensive gun control regulation, I doubt our Supreme Court will be brave enough to hold that the right to keep and bear arms is a fundamental right that exists irrespective of the Second Amendment and transcends any necessity for a militia.

Dred Scott Case
Language from the famous Dred Scott case:

"The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government [60 U.S. 393, 450] can exercise no power over his person or property, beyond what that instrument confers, nor lawfully deny any right which it has reserved.

A reference to a few of the provisions of the Constitution will illustrate this proposition.

For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.

Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.

These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law."

http://laws.findlaw.com/us/60/393.html

The Result of the Dred Scott case: Because Dred Scott was "property" and was not a "citizen" as that word was intended by the framers of the constitution at the time the constitution was written, Dred Scott did not have standing to bring a suit to gain his freedom--the U.S. District Court did not have jurisdiction to hear the case.

This is like someone saying that he studied "approved commentators" (whatever the hell that means) in medicine and so he now feels qualified to perform open-heart surgery.


Well, I must admit that this argument is different from all the "gold-fringed flag" paranoiac fantasies usually put forward by the typical gun fanatic. Of course, I'm not saying it's any better, just different.



That's not a distinction, that's a delusion.
The amendment sets the parameters for permissible governmental regulation of the right. Yours is a distinction without a difference.


That doesn't explain why this "self-evident truth" was placed in the Second Amendment.


Your attempts to distinguish between the amendment and the "right" are fatuous. When the court interprets the amendment, it interprets the extent to which the government can restrict the right. Thus, any time the court deals with the amendment it deals with the right. It's two sides of the same coin.

Debra_Law: You could have saved yourself a lot of effort if you had just admitted you didn't want to answer my question.

No special powers of discernment are required to understand the founding principles. The Constitution was written to be understood by everyman and it was then; political discussion then centered on the philosophy not the policy. It was understood that as long as government remained true to its principles, policy would take care of itself. Today though, the principles have been vacated by the left and their "evolving" Constitution and some of their policy can only be described a seditious and treasonous.

The founder's were well read and they had diverse political models to choose from in forming our government. When one understands the principles, deciding what is and is not a legitimate exercise of governmental power is easy. One certainly does not need to have a formal instruction in the law to do this; in fact, in reflecting upon the many conversations I have had with attorneys it seems to be a severe handicap.

I honestly am surprised you find the term "approved commentator" so alien; it is used quite often in Supreme Court decisions and is in fact, used in US v. Miller!

"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators."

The opinion then quotes selected excepts from those "approved commentators." Personally, I find it astounding that someone who claims to be an attorney finds this term so mystifying . . . but, because practice is always worthwhile, I will indulge you with an explanation.

The term "approved commentators" is not of the NRA's design or mine; it happens to be the term used by SCOTUS to refer to the large body of works that are deemed by them to be instructive regarding the principles supporting the Constitution. The writings of Aristotle, Cicero, Grotius, Locke, Sidney, Harrington, Cato's Letters, the English Whigs, Rousseau, Burgh, Montesquieu and many others that influencedd the founders are on their "reading list." These are the writers SCOTUS surveys, to enlighten them on original intent. Also included in the fraternity of "approved commentators" are the exceptional Constitutional scholars who wrote in the 1800's; Tucker, Rawle, Story, Cooley and others wrote about the 2nd Amendment and the separate and distinct right to arms in a fashion that would very likely give you a shudder.

Just because they are unknown and invisible to you doesn't make them irrelevant to the issue. In fact, when your position is finally extinguished with great prejudice, the shock on your face will be a secondary gift to the nation from SCOTUS.

What conclusion do you draw from the Cruikshank Court's statement that,

"The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. "

So I ask you, what is the "it" in the above excerpt? The IT is not, "in any manner dependent upon that instrument [the Constitution] for its existence" and "[t]he second amendment declares that IT shall not be infringed.

The IT in SCOTUS's opinion, is without a doubt a separate entity from the 2nd Amendment. The IT is the right of bearing arms for lawful purpose.

From where is the power to impact rights conferred to SCOTUS? Their jurisdiction, as established by the Constitution, ". . . shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority;" (emphasis added). Our fundamental rights are not dependent in any way on the Constitution for their existence so it follows then that they certainly can not fall "under" the Constitution or under the purview of any governmental body created by it. SCOTUS's jurisdiction is of laws and only laws and their power extends only to deciding whether that law exceeds the strictly defined and limited powers conferred by the Constitution. If SCOTUS did their job correctly, our rights and their scope would never be an issue.

And yes, I know that in Marbury the judicial role was expanded but even then as outlined in Marbury, certain areas remained off limits to judicial review and activism.


The only "parameter setting" regarding powers exercised by government is the Constitution of the United States of America. That there is a 2nd Amendment forbidding federal action against the arms of the people is a nice thing; nice but completely unnecessary. The more important fact that limits all federal action against the arms of the people is the complete silence of the Constitution regarding that issue. The Bill of Rights is not a "ya got everything up to this stuff" grant of power. Your position is exactly the argument warned about in 1791; why the idea for a Bill of Rights should be scrapped. I find that argument coming from a "member of the bar" unconscionable.


I don't know why it is there; I only can say that it does not impact the right that is being protected. There are quite a few provisions in state constitutions that correlate to the syntax and grammar of the federal 2nd. None of them are interpreted with the declaratory clause as a controlling factor on the right later secured. For instance the Rhode island Constitution states:

"The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, . . ."

Am I safe to assume that your opinion on this provision is that the "press" only intends mass media outlets and since the "people" can not all be reporters, the individual right to publish sentiments on any subject is not protected and is subject to whatever restrictions government wishes to place on it?

There are many reasons why my position is correct, some are above, (I hope you answered my query about Cruikshank above). There are others, not the least of which is what "well-regulated" actually means.

Then it should be child's play for you to rebut it. Show me one ruling by SCOTUS that states a parallel to your contention. Wasn't Justice Harlan's wonderful dissent in Poe v. Ullman discussed in your due process class? How do you explain away that statement that has since been elevated to the opinion of the Court?

". . . the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints,"

It is really dumbfounding what we must erase to conform to your position; honestly, are the concepts of inherent and inalienable rights something new to you?

Not if they are doing their job correctly. Tell me, what happens when the court must decide on a claimed rights infringement case when there is no provisional issue involved? How can they review the right when, because of history, the provision securing the right is of no effect?

What is the condition of a felon's rights and the right to arms specifically? (I am looking for the actual term used)

Bill of Rights


You are absolutely correct. Many of our founding fathers objected to the inclusion of a bill of rights in the constitution because they feared (and reasonably so) that the government would use the bill of rights as a means of limiting fundamental rights.

In England, the King was supreme. The King could do no wrong. The King's power to rule was "devine" and did not emanate from the consent of the governed. In the Federalist 84, Hamilton explained that the English Magna Carta and other English bills of rights were concessions obtained from the King who otherwise had absolute power to do as he wished. The same is not true for this Country. Concerning the significance of the Magna Carta and other English bills of rights, Hamilton said:

"It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations."

Hamilton warned:

"I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."

http://odur.let.rug.nl/~usa/D/1776-1800/federalist/fed84.htm

Hamilton's fears have been proven to be well-founded. Over and over again, men disposed to usurp, have used the language contained in the bill of rights as a limitation on rights (rather than a command not to usurp the right) and as justification of government regulation of fundamental rights when no governmental power to do so exists. The most obvious example is government regulation of the [inalienable] right to keep and bear arms. The government has no power to do so, but it does it anyway.

For everyone who is sleeping in apathy, wake up and smell the coffee.

USA v. Emerson
UNITED STATES OF AMERICA v. TIMOTHY JOE EMERSON
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, SAN ANGELO DIVISION
46 F. Supp. 2d 598
April 7, 1999, Decided


Opinion by SAM R. CUMMINGS

Defendant Timothy Joe Emerson ("Emerson") moves to dismiss the Indictment against him, claiming that the statute he is prosecuted under, 18 U.S.C. § 922(g)(8), is an unconstitutional exercise of congressional power under the Second Amendment to the United States Constitution. For the reasons stated below, the Court GRANTS Emerson's Motion to Dismiss.

BACKGROUND

On August 28, 1998, Emerson's wife, Sacha, filed a petition for divorce and application for a temporary restraining order in the 119th District Court of Tom Green County, Texas. The petition stated no factual basis for relief other than the necessary recitals required under the Texas Family Code regarding domicile, service of process, dates of marriage and separation, and the "insupportability" of the marriage. The application for a temporary restraining order--essentially a form order frequently used in Texas divorce procedure--sought to enjoin Emerson from engaging in various financial transactions to maintain the financial status quo and from making threatening communications or actual attacks upon his wife during the pendency of the divorce proceedings.

On September 4, 1998, the Honorable John E. Sutton held a hearing on Mrs. Emerson's application for a temporary restraining order. Mrs. Emerson was represented by an attorney at that hearing, and Mr. Emerson appeared pro se. Mrs. Emerson testified about her economic situation, her needs in the way of temporary spousal support and child support, and her desires regarding temporary conservatorship of their minor child.

During the hearing, Mrs. Emerson alleged that her husband threatened over the telephone to kill the man with whom Mrs. Emerson had been having an adulterous affair. However, no evidence was adduced concerning any acts of violence or threatened violence by Mr. Emerson against any member of his family, and the district court made no findings to that effect. Furthermore, the court did not admonish Mr. Emerson that if he granted the temporary restraining order, Mr. Emerson would be subject to federal criminal prosecution merely for possessing a firearm while being subject to the order.

ANALYSIS

As stated above, Emerson was indicted for possession of a firearm while being under a restraining order, in violation of 18 U.S.C. § 922(g)(8) ("the Act"). This statute states that:

(g) It shall be unlawful for any person--
(8) who is subject to a court order that--

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury . . . .

Second Amendment

Emerson claims that 18 U.S.C. § 922(g)(8) violates his rights under the Second Amendment to the United States Constitution.

[DEBRA'S NOTE: This is a common mistake made in legal arguments and analysis--people declaring their rights pursuant to or under a constitutional amendment. Fundamental rights automatically exist by virtue of birth. They are not derived from or created by the constitution. People need to start using the correct language. The federal law violated Emerson's fundamental, inalienable right to keep and bear arms--and this fundamental right is explicitly secured against governmental infringement via the Second Amendment.]

The Second Amendment states that:

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.

Only if the Second Amendment guarantees Emerson a personal right to bear arms can he claim a constitutional violation. Whether the Second Amendment recognizes an individual right to keep and bear arms is an issue of first impression within the Fifth Circuit.

[DEBRA'S NOTE: The inalienable right to keep and bear arms was recognized and existed before the Constitution was written. The Second Amendment was not necessary to secure that right against governmental infringement. The government has never had the power to regulate firearms.]

Emerson claims that he has a personal right to bear arms which the Act infringes, while at oral argument on the Motion to Dismiss, the Government claimed it is "well settled" that the Second Amendment creates a right held by the States and does not protect an individual right to bear arms.

[DEBRA'S NOTE: The Bill of Rights was never intended to "create" rights; it was intended to secure fundamental rights from governmental infringement.]

Second Amendment Schools of Thought

Two main schools of thought have developed on the issue of whether the Second Amendment recognizes individual or collective rights. These schools of thought are referred to as the "states' rights," or "collective rights," school and the "individual rights" school. The former group cites the opening phrase of the amendment, along with subsequent case law, as authority for the idea that the right only allows states to establish and maintain militias, and in no way creates or protects an individual right to own arms. Due to changes in the political climate over the last two centuries and the rise of National Guard organizations among the states, states' rights theorists argue that the Second Amendment is an anachronism, and that there is no longer a need to protect any right to private gun ownership.

The individual rights theorists, supporting what has become known in the academic literature as the "Standard Model," argue that the amendment protects an individual right inherent in the concept of ordered liberty, and resist any attempt to circumscribe such a right.

Textual Analysis

A textual analysis of the Second Amendment supports an individual right to bear arms. A distinguishing characteristic of the Second Amendment is the inclusion of an opening clause or preamble, which sets out its purpose. No similar clause is found in any other amendment. While states' rights theorists seize upon this first clause to the exclusion of the second, both clauses should be read in pari materia, to give effect and harmonize both clauses, rather than construe them as being mutually exclusive.

The amendment 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." Within the amendment are two distinct clauses, the first subordinate and the second independent. If the amendment consisted solely of its independent clause, "the right of the people to keep and bear Arms, shall not be infringed," then there would be no question whether the right is individual in nature.

Collective rights theorists argue that addition of the subordinate clause qualifies the rest of the amendment by placing a limitation on the people's right to bear arms. However, if the amendment truly meant what collective rights advocates propose, then the text would read "[a] well regulated Militia, being necessary to the security of a free State, the right of the States to keep and bear Arms, shall not be infringed." However, that is not what the framers of the amendment drafted. The plain language of the amendment, without attenuate inferences therefrom, shows that the function of the subordinate clause was not to qualify the right, but instead to show why it must be protected. The right exists independent of the existence of the militia. If this right were not protected, the existence of the militia, and consequently the security of the state, would be jeopardized.

Historical Analysis

"There is a long tradition of widespread lawful gun ownership by private individuals in this country." A historical examination of the right to bear arms, from English antecedents to the drafting of the Second Amendment, bears proof that the right to bear arms has consistently been, and should still be, construed as an individual right.

The Colonial Right To Bear Arms

The American colonists exercised their right to bear arms under the English Bill of Rights. As in England, the colonial militia played primarily a defensive role, with armies of volunteers organized whenever a campaign was necessary. Statutes in effect bore evidence of an individual right to bear arms during colonial times. For example, a 1640 Virginia statute required "all masters of families" to furnish themselves and "all those of their families which shall be capable of arms . . . with arms both offensive and defensive...." The individual right to bear arms, a right recognized in both England and the colonies, was a crucial factor in the colonists' victory over the British army in the Revolutionary War. Without that individual right, the colonists never could have won the Revolutionary War. After declaring independence from England and establishing a new government through the Constitution, the American founders sought to codify the individual right to bear arms, as did their forebears one hundred years earlier in the English Bill of Rights.

The Ratification Debates

A foundation of American political thought during the Revolutionary period was the well justified concern about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is "a chimerical idea to suppose that a country like this could ever be enslaved . . . Is it possible . . . that an army could be raised for the purpose of enslaving themselves or their brethren? or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?" Noah Webster similarly argued:


Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.

George Mason argued the importance of the militia and right to bear arms by reminding his compatriots of England's efforts "to disarm the people; that it was the best and most effectual way to enslave them . . . by totally disusing and neglecting the militia." He also clarified that under prevailing practice the militia included all people, rich and poor. "Who are the militia? They consist now of the whole people, except a few public officers." Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein.

The framers thought the personal right to bear arms to be a paramount right by which other rights could be protected. Therefore, writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included "the right to keep and bear arms" in a list of basic "human rights" which he proposed to be added to the Constitution.

Patrick Henry, also in the Virginia convention, eloquently argued for the dual rights to arms and resistance to oppression: "Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined." Thus, the federalists agreed that an armed populace was the ultimate check on tyranny.

While both Monroe and Adams supported ratification of the Constitution, its most influential framer was James Madison. In The Federalist No. 46, he confidently contrasted the federal government of the United States to the European despotisms which he contemptuously described as "afraid to trust the people with arms." He assured his fellow citizens that they need never fear their government because of "the advantage of being armed...."

By January of 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several specific amendments were proposed, but were not adopted at the time the Constitution was ratified. The Pennsylvania convention, for example, debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia. The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to amendments to assure ratification. Samuel Adams proposed that the Constitution

Be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defence of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of their grievances: or to subject the people to unreasonable searches and seizures.

Drafting the Second Amendment

When the first Congress convened on March 4, 1789, James Madison, who had previously advocated passage of the Constitution without amendments, now pressed his colleagues to act on a bill of rights. When his initial efforts failed to produce any response, he drafted his own version of a bill of rights and presented them to members of Congress on June 8 of that year. His version of what would later be the second amendment read:

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

That Madison envisioned a personal right to bear arms, rather than merely a right for the states to organize militias, is evident from his desired placement of the right in the Constitution. Madison's original plan was to designate the amendments as inserts between specific sections of the existing Constitution, rather than as separate amendments added to the end of the document. Madison did not designate the right to keep and bear arms as a limitation of the militia clause of Section 8 of Article I. Rather, he placed it as part of a group of provisions (with freedom of speech and the press) to be inserted in "Article 1st, Section 9, between Clauses 3 and 4." Such a designation would have placed this right immediately following the few individual rights protected in the original constitution, dealing with the suspension of bills of attainder, habeas corpus, and ex post facto laws.

Thus Madison aligned the right to bear arms along with the other individual rights of freedom of religion and the press, rather than with congressional power to regulate the militia. This suggested placement of the Second Amendment reflected recognition of an individual right, rather than a right dependent upon the existence of the militia.

At that point, the Senate took up the Bill of Rights. Unfortunately, Senate debate on the issue was held in secret, and therefore no record exists of that body's deliberations. The Senate form of the second amendment now described the militia not as "the best security" of a free state, but as "necessary to the security" of a free state, an even stronger endorsement than Madison's original description. The Senators also omitted the phrase describing the militia as "composed of the body of the people." Elbridge Gerry's fear that future Congresses might expand on the religious exemption clause evidently convinced the Senate to eliminate that clause as well. Even more important, however, was the Senate's refusal of a motion to add "for the common defense" after the phrase "to keep and bear arms.". Thus the American Bill of Rights, like the English Bill of Rights, recognized the individual's right to have weapons for his own defense, rather than for collective defense. In this form, Congress approved the Second Amendment and sent the Bill of Rights to the state legislatures for ratification.

Structural Analysis

The structure of the Second Amendment within the Bill of Rights proves that the right to bear arms is an individual right, rather than a collective one. The collective rights' idea that the Second Amendment can only be viewed in terms of state or federal power "ignores the implication that might be drawn from the Second, Ninth, and Tenth Amendments: the citizenry itself can be viewed as an important third component of republican governance as far as it stands ready to defend republican liberty against the depredations of the other two structures, however futile that might appear as a practical matter." Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 651 (1989).

Furthermore, the very inclusion of the right to keep and bear arms in the Bill of Rights shows that the framers of the Constitution considered it an individual right. "After all, the Bill of Rights is not a bill of states' rights, but the bill of rights retained by the people." Of the first ten amendments to the Constitution, only the Tenth concerns itself with the rights of the states, and refers to such rights in addition to, not instead of, individual rights. Thus the structure of the Second Amendment, viewed in the context of the entire Bill of Rights, evinces an intent to recognize an individual right retained by the people.

Judicial Interpretations

The Court notes that several other federal courts have held that the Second Amendment does not establish an individual right to keep and bear arms, but rather a "collective" right, or a right held by the states. However, the only modern Second Amendment case from the Supreme Court is United States v. Miller, 307 U.S. 174 (1939). Jack Miller was charged with moving a sawed-off shotgun in interstate commerce in violation of the National Firearms Act of 1934. Among other things, Miller had not registered the firearm, as required by the Act. The court below dismissed the charge, accepting Miller's argument that the Act violated the Second Amendment.

The Supreme Court reversed unanimously, with Justice McReynolds writing the opinion. Interestingly enough, he emphasized that there was no evidence showing that a sawed-off shotgun "at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia." And "certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." Thus, Miller might have had a tenable argument had he been able to show that he was keeping or bearing a weapon that clearly had a potential military use. Justice McReynolds went on to describe the purpose of the Second Amendment as "assuring the continuation and rendering possible the effectiveness of [the Militia]."

It is difficult to interpret Miller as rendering the Second Amendment meaningless as a control on Congress. Ironically, one can read Miller as supporting some of the most extreme anti-gun control arguments; for example, that the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly used for modern warfare, including, of course, assault weapons. Under Miller, arguments about the constitutional legitimacy of a prohibition by Congress of private ownership of handguns or, what is much more likely, assault rifles, thus might turn on the usefulness of such guns in military settings.

Miller did not answer the crucial question of whether the Second Amendment embodies an individual or collective right to bear arms. Although its holding has been used to justify many previous lower federal court rulings circumscribing Second Amendment rights, the Court in Miller simply chose a very narrow way to rule on the issue of gun possession under the Second Amendment, and left for another day further questions of Second Amendment construction.

Prudential Concerns

Some scholars have argued that even if the original intent of the Second Amendment was to provide an individual right to bear arms, modern-day prudential concerns about social costs outweigh such original intent and should govern current review of the amendment. However, there is a problem with such reasoning. If one accepts the plausibility of any of the arguments on behalf of a strong reading of the Second Amendment, but, nevertheless, rejects them in the name of social prudence and the present-day consequences of an individual right to bear arms, why do we not apply such consequentialist criteria to each and every part of the Bill of Rights?

As Professor Ronald Dworkin has argued, what it means to take rights seriously is that one will honor them even when there is significant social cost in doing so. Protecting freedom of speech, the rights of criminal defendants, or any other part of the Bill of Rights has significant costs--criminals going free, oppressed groups having to hear viciously racist speech and so on--consequences which we take for granted in defending the Bill of Rights. This mind-set changes, however, when the Second Amendment is concerned. "Cost-benefit" analysis, rightly or wrongly, has become viewed as a "conservative" weapon to attack liberal rights. Yet the tables are strikingly turned when the Second Amendment comes into play. Here "conservatives" argue in effect that social costs are irrelevant and "liberals" argue for a notion of the "living Constitution" and "changed circumstances" that would have the practical consequence of erasing the Second Amendment from the Constitution.

Other commentators, including Justice Scalia, have argued that even if there would be "few tears shed if and when the Second Amendment is held to guarantee nothing more than the state National Guard, this would simply show that the Founders were right when they feared that some future generation might wish to abandon liberties that they considered essential, and so sought to protect those liberties in a Bill of Rights. We may tolerate the abridgement of property rights and the elimination of a right to bear arms; but we should not pretend that these are not reductions of rights."

Thus, concerns about the social costs of enforcing the Second Amendment must be outweighed by considering the lengths to which the federal courts have gone to uphold other rights in the Constitution. The rights of the Second Amendment should be as zealously guarded as the other individual liberties enshrined in the Bill of Rights.

Constitutionality of 18 U.S.C. § 922(g)(8)

18 U.S.C. § 922(g)(8) is unconstitutional because it allows a state court divorce proceeding, without particularized findings of the threat of future violence, to automatically deprive a citizen of his Second Amendment rights. The statute allows, but does not require, that the restraining order include a finding that the person under the order represents a credible threat to the physical safety of the intimate partner or child. 18 U.S.C. § 922(g)(8)(C)(i). If the statute only criminalized gun possession based upon court orders with particularized findings of the likelihood of violence, then the statute would not be so offensive, because there would be a reasonable nexus between gun possession and the threat of violence. However, the statute is infirm because it allows one to be subject to federal felony prosecution if the order merely "prohibits the use, attempted use, or threatened use of physical force against [an] intimate partner." 18 U.S.C. § 922(g)(8)(C)(ii). Therefore, by criminalizing protected Second Amendment activity based upon a civil state court order with no particularized findings, the statute is over-broad and in direct violation of an individual's Second Amendment rights...Under this statute, a person can lose his Second Amendment rights not because he has committed some wrong in the past, or because a judge finds he may commit some crime in the future, but merely because he is in a divorce proceeding. Although he may not be a criminal at all, he is stripped of his right to bear arms as much as a convicted felon. Second Amendment rights should not be so easily abridged.

[DEBRA'S NOTE: Again, the right to keep and bear arms is not a "Second Amendment right." It is a fundamental right that is secured against infringement by the Second Amendment.]

It is absurd that a boilerplate state court divorce order can collaterally and automatically extinguish a law-abiding citizen's Second Amendment rights, particularly when neither the judge issuing the order, nor the parties nor their attorneys are aware of the federal criminal penalties arising from firearm possession after entry of the restraining order. That such a routine civil order has such extensive consequences totally attenuated from divorce proceedings makes the statute unconstitutional. There must be a limit to government regulation on lawful firearm possession. This statute exceeds that limit, and therefore it is unconstitutional.

CONCLUSION

Because 18 U.S.C. § 922(g)(8) violates the Second and Fifth Amendments to the United States Constitution, the Court GRANTS Emerson's Motion to Dismiss the Indictment. A judgment shall be entered in conformity with this opinion.

USA v. Emerson
OF COURSE, the Court of Appeals reversed. Emerson petitioned the United States Supreme Court for a writ of certiorari--and review was denied.

Just like the Supreme Court tiptoed around the issue of the phrase "UNDER GOD" in the Pledge of Allegiance, the Court refuses to hear cases concerning the fundamental right to keep and bear arms.

The Associated Press 1/24/03 7:38 PM

LUBBOCK, Texas (AP) -- A man was sentenced Friday to 2½ years in prison for owning guns while under a protective order -- a limitation on gun rights that an appeals court held was constitutionally acceptable.

The U.S. Supreme Court last June declined to hear arguments that Timothy Emerson should have been allowed to keep his guns under the Second Amendment right to "keep and bear arms."

Emerson was indicted after the restraining order was issued during his divorce in 1998. He owned several rifles and a handgun at the time.

A federal judge dismissed the charges, but the 5th Circuit Court of Appeals overturned the decision in 2001, ruling that an individual's right to bear arms could be restricted in some circumstances.

In Emerson's case and a similar one the Supreme Court also rejected, the Bush administration told the Supreme Court that the Second Amendment protects an individual as well as the collective right to gun ownership. That position reversed decades-old policy on the Second Amendment.

The administration, though, did not support Emerson's appeal, saying the Second Amendment right was still subject to reasonable restrictions.

The Supreme Court's decision not to hear the case sent it back to the district court, where Emerson was convicted in October.

Emerson's attorney, David Guinn, argued at trial his client shouldn't be punished for owning guns that were legal once his divorce was completed. He plans to appeal the sentence.

Emerson had faced a maximum of five years in prison and a $250,000 fine.

Then why should I place any confidence in your analysis? Your 25 years of studying the constitution would put you on the same level as someone who has spent 25 minutes scrutinizing the document.


Indeed it is. I also have no clue what Justice McReynolds was talking about when he said "approved commentators." That, however, should come as no great surprise, since McReynolds was a judicial cipher, someone who would have made Clarence Thomas look like Benjamin Cardozo. As the late Senator Paul Simon once remarked: "While it is not ideal, the Supreme Court can operate with eight members, and whatever problems that presents it is much better than approving someone like Woodrow Wilson's appointment of Justice James McReynolds, the clear winner of the award as the worst justice to serve on that high body."


It's a term used by the Supreme Court? Really? Name another case, besides Miller, in which the court uses this phrase.


To the extent that anyone can discern McReynolds's meaning of the phrase "approved commentators," his meaning is not the same as yours. From the context of the Miller decision, it is likely that McReynolds was referring to commentators on the constitution. Obviously, someone who predated the constitution, like Grotius or Montesquieu, would not be found on such a list.


I assure you that my face will register not the slightest degree of perturbation.


U.S. v. Cruikshank deals with a Southern mob's attempts to intimidate a pair of black citizens. Two of the counts of the indictment against Cruikshank (one of the mob) accused him of attempting to deprive those blacks of their constitutional rights to bear arms. The supreme court quashed the indictment, holding that the right to bear arms was not a right guaranteed to citizens as against other citizens. In this, Cruikshank is in keeping with the jurisprudence of the Reconstruction court, as exemplified in the Civil Rights Cases. With 25 years of constitutional study under your belt, Pete_Sakes, I would have expected you to realize that.


From the constitution, the structure of the government, and the rule of law.


This is a fantasy held by those who do not understand either the law or the concept of rights.


After 25 years of study, you don't know why that clause is in the second amendment? Really, Pete, I'm disappointed to learn of this gap in your knowledge.


I happily concede that I am no expert on the Rhode Island constitution. I can only surmise that the term "press," as found in that document, has been interpreted more broadly than simply "newspaper." In that same regard, I would imagine that you interpret the term "arms" in the second amendment to encompass more than flintlock rifles.


I never had a "due process class." I'd venture to say that no one has ever had such a class.


Those are very nice sentiments.


I have no idea what you're trying to say.


The terms of use prohibit me from offering legal advice. If you want to run that risk, you'll have to do it on your own.

This is incorrect. The Supreme Court has ruled that regulation is banned if it interferes with people having certain guns (those types that are useful to the militia).

The appeals court in Emerson went even farther with the right.

The lower court in the Miller ruling went farther yet, although they were later overturned.