THE DANGER OF GUN-FREE SCHOOL ZONES

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Who Has the Right To Bear Arms?
The fight over the Second Amendment, explained.
By Dahlia Lithwick
Posted Wednesday, Nov. 21, 2007, at 10:54 AM ET

Do u wish to identify the SOURCE of this writing ?
Is it called " Explainer " ?

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The Supreme Court announced Tuesday that it would consider
whether the Constitution gives individuals the right to bear arms.

This is false.
The USSC has already held that
the rights of the First and Second Amendments are older than the Constitution,
and thus were not granted by it, but rather that the US Government,
when created, found them already in being.
US v. CRUIKSHANK 92 US 542 (1875)

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Dahlia Lithwick explained the arguments on both sides of this question
in a 2001 "Explainer," reprinted below.
In the intervening time a lot has changed, including the DoJ's stance on the question.

In a recent letter to the NRA, Attorney General John Ashcroft claimed that
the Second Amendment guarantees an individual the right to be armed.
This conflicts with the Justice Department's official legal position,
which holds that Second Amendment rights are limited to the collective
rights of states to regulate their own militias.

What rights are there to own a gun under the federal Constitution?


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The Second Amendment provides 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."

The issue turns on whether that right to bear arms represents
an "individual" or "collective" right. The NRA (and Ashcroft) advocate an
affirmative individual right, akin to First Amendment free speech protections,
granting us the right to have guns to hunt, protect ourselves, and hold
government storm troopers at bay.
Gun control activists and the Justice Department (save, apparently, for Ashcroft)

I thought that he DEFINED what the Justice Dept 's position is.
If not he, then WHO ??

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hold that the right as it is codified in the Second Amendment only protects the states' authority to maintain formal, organized militias. Because the Second Amendment only concerns federal efforts to regulate firearms,

That is not what the amendment says; it is a universal negative disability.

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state gun control efforts do not implicate the Second Amendment,
and most gun laws are promulgated at the state level.

State law and state constitutions may change, but the progress of Second Amendment jurisprudence is glacial. As a matter of pure legal precedent, the Justice Department likely has the winning argument in this debate
simply because the last time the U.S. Supreme Court ruled on this point was in 1939.

So what ??

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In United States v. Miller, the court held that the Second Amendment right to keep and bear arms is not applicable in the absence of a reasonable relationship to the "well regulated militia" provision of the Second Amendment.

No; that is a distortion.

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The court stated that:

In the absence of any evidence tending to show that possession or use of
a "shotgun having a barrel of less than eighteen inches in length" at this
time has some reasonable relationship to the preservation or efficiency of
a well regulated militia, we cannot say that the Second Amendment
guarantees the right to keep and bear such an instrument.

This is TRUE; the 2A only protects possession of WEAPONS.
The point was that in that mutilated condition it had not been proven
that the " instrument " was still a WEAPON, not useless junk.

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The Supreme Court has turned down every opportunity to accept a new case and clarify the question of whether Miller established a definitive test requiring some connection between guns and state militias or whether it was announcing a one-time-only rule about Jack Miller and his shotgun. Still, the lower courts have followed the first view, and, in the wake of Miller, virtually every lower court has accepted the state militia/collective rights test as a settled point of law. While a fascinating normative debate over whether or not the right should be an individual one rages in the academy

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This is FALSE.
The pro-freedom, individual right interpretation is called " the standard model "
among almost 100% of academicians who have investigated and written
upon the subject, including liberals like Harvard law professor Laurence Tribe
and Alan Dershowitz, the Felix Frankfurter Professor of Law at Harvard Law School.

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in think tanks, and around the candy machines at NRA headquarters,
the Second Amendment issue is not a close call in the courthouse.
Eminent legal scholars, including Sanford Levinson and historians such as
Emory's Michael Bellesiles,

Bellesiles is not an eminent legal scholar.
He is a liar, in disgrace; a charletan,
stripped of his Bancroft History Prize for multiple scandalous frauds.

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have done some staggering scholarly work on the subject of the original intent of the Framers and the prevalence of guns at the time of the founding of the country. [Updated May 8, 2002: Bellesiles' methodology has recently come under fire by constitutional scholars.] None of it has induced the Supreme Court to step into the fray.

The modern Supreme Court has invalidated federal gun laws,
most recently in United States v. Lopez, but not on Second Amendment grounds. Nothing about the decision in Lopez reinforces an individual's right to bear arms; it merely curbs congressional attempts to regulate guns, which is by no means the same thing.

Why do opinion surveys show that most American citizens believe in the individual rights position? Some legal scholars call this widespread public conviction a "hoax" and "false consciousness."

" Legal scholars " are not experts on "false consciousness"
and thay are almost 100% in support of the individual rights concept,
according to their published writings in law review articles.

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Some contend that the NRA has done a spectacular job of spinning an individual right out of law review articles, John Wayne movies, and effective propaganda. Others argue that the personal right to a gun is nevertheless a right whose time has come and that it's just a matter of the courts catching up to public opinion.

Wait and see what happens.
David

"Due to the well known fact that a wet bird never flies at night, the right of the people to keep and bear arms shall not be infringed."

The ONLY way anybody can even think about trying to make a case for gun control is via convoluted interpretations of the dependent clause, which is so meaningless that anybody who does it can legitimately be charged with having a problem with the English language.
The thing could as easily read:

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"Due to the well known fact that a wet bird never flies at night, the right of the people to keep and bear arms shall not be infringed."


The dependent clause is merely a motivation,
the independent clause is the law, period.

That is PERFECTLY correct.

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The law could read as above and somebody could produce a notarized and timed photograph of a wet bird actually flying at night and even THAT would not change anything. You'd still need a constitutional amendment with 2/3 vote of the states to legitimately change/remove the second amendment.

75% of the States needed to ratify

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As I see it, the 2'nd amendment is a political absolute.
I am perfectly willing to die trying to preserve it, as are millions of others.
The basic question to demokkkrats and liberals is simply this:
Are you willing to die trying to take it away from us?

The 2A was enacted by SUCCESSFUL REVOLUTIONARIES.
In any future revolution, thay wanted the citizens themselves to win.

In US v. MILLER 3O7 US 174 (1939) the US Supreme Court
approved the commentary of Judge Thomas M. Cooley:
"The right declared was meant to be a strong moral check
against the usurpation and
arbitrary power of rulers and as
a necessary and efficient means of regaining rights when
temporarily overturned by usurpation.


"The right is general- It may be supposed from the
phraseology of this provision that the right to keep and
bear arms was only guaranteed to the militia but this would
be an interpretation NOT warranted by the intent....But the
law may make provision for the enrollment of all who are fit
to perform military duty, or of a small number only, or it may
wholly omit to make any provision at all and if the right were
limited to those enrolled, THE PURPOSE OF THE GUARANTY
MIGHT BE DEFEATED ALTOGETHER BY THE ACTION OR
NEGLECT TO ACT OF THE GOVERNMENT IT WAS MEANT
TO HOLD IN CHECK.

The meaning of provision undoubtedly
is that THE PEOPLE from whom the militia must be
taken shall have the right to keep and bear arms and
THEY NEED NO PERMISSION OR REGULATION OF LAW
FOR THE PURPOSE." [emphasis added]

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You need to think about that.
The 2'nd amendment is something which you **** with at your peril.

Yes; the suppressionists, like Advocate,
shud think of what thay 'd do if W declared that it is obviously in
America 's " general welfare " for him to remain in office permanently,
so any further elections will be held in abeyance until further notice.

Wud Advocate advocate simply FORGETTING about democracy ?

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Dave, you provide some lengthy quotes,
but don't give the source.

I am not aware of having committed that error.
I am pretty careful to avoid that,
from decades of motion practice and probative brief writing.
I do not believe that your criticism is true or justified,
nor that u can point to any example of this infraction,
because none has ever existed, from my hand,
since I was a boy, when Truman was President.

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Would this be too embarrassing? Are they from some gun-owners' rag?

No.
Both the Declaration of Independence and the US Constitution
isssued forth from gun-owners, Advocate,
as well as all federal law from the 1700s and 1800s.
Congress was FULL of them; that 's a fact.

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You still have not provided anything in the constitution, or in federal law,
that includes a provision's rationale. Failure is your middle name ??.

I concede that there is nothing else in the US Constitution
with this structure; the Founders wrote it with a rhetorical flourish.
I cannot understand the reason that u deem this
to be of logical significance. Do u wish to create a new rule of
statutory construction, concerning this and then apply it retroactively ??

James Madison and Thomas Jefferson were gun-lovers like me.
Thay ALL were. Do u DENY that ??

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I must concede that the miserable, rotten Supreme Ct. majority may rule against gun control.
Then, we will get the freedom you seek -- the freedom to die from some punk's bullet.

HOW IS THAT DIFFERENT THAN NOW ??
PLEASE EXPLAIN.

ARE THE PUNKS HELPLESSLY UNARMED TODAY ????


It is sad to see one of my fellow citizens ( this is an assumption )
denouncing freedom as being " miserable, rotten ".

The punks (and everyone else) have armed themselves with guns
for centuries before the invention of electric tools and before computer aided design.
Do u believe that crime was worse in the 1800s ?

Advocate, are u AFRAID to visit Vermont
(one of America 's safest states, consistently for decades, per FBI stats)
because Vermont has NEVER HAD ANY GUN LAWS ??

Are u too fearful to visit Alaska, because Alaska repealed all of its gun control laws,
a few years ago ? OR do u feel SAFER in the streets of D.C.,
because guns have been banned there for several decades ?

Please TELL us, Advocate.
( I don 't think he WILL, folks. )
David

Dave, federal gun-control law certainly applies to Vermont and Alaska.

Dave, Alaska and Vermont do not require any license to be allowed to carry concealed weapons in public places, but there are laws in these states prohibiting concealed weapons in certain places (e.g., in Alaska it is not permitted to carry a weapon, concealed or otherwise, into a bar or tavern). [Wikipedia]

if u visit Alaska will [you] be terrified until u can find refuge in a bar ?
David

OmSigDAVID wrote:

if u visit Alaska will [you] be terrified until u can find refuge in a bar ?
David

When I used to conceal carry in Arizona the thing that I noticed was that NOBODY knew or cared if I had a gun. I know statistically that at least every 10th-15th adult was carrying as well and I didn't care either. I used to see people open carry and aside from a quick glance I never gave it a second thought. Even when I opened carry (before I had my CCW permit) I NEVER got any sort of response out of anyone (except people admiring my gun), parents didn't avoid me, kids didn't run away screaming, etc.

Dave, the court's majority held that A2 does not provide for an unfettered right to bear arms. I agree with that.

BTW, federal gun control, each year, keeps about 200,000 people from obtaining guns. Only god knows how many lives are saved by this.

just like no one who wants marijuana can get any
because its against the federal law

OmSigDAVID wrote:

]just like no one who wants marijuana can get any
because its against the federal law

Actually, it's MUCH easier to get a gun than it is to get marijuana.

The authorities seize and meld down untold thousands of guns each year. God only knows how many people are saved by this.

Dave, that is patent nonsense about guns being made in prison.
If any are made, the number is miniscule.

Dave, I am not only unafraid of guns, I have considered getting one for home protection. I don't think I need a concealed handgun, but would seek a permit should I need one. I fired many types of guns in the past.

Saying this, I still believe in strict gun control. We should do all we can to keep Sat. nite specials away from the punks.