Constitutional Gun Banning
C. D. Tavares
"The Second Amendment: Fraud and Fact." (The comments in
brackets are MINE.)
FRAUD: The Second Amendment to the Constitution guarantees each
individual the unlimited right to own and use guns for hunting,
self-protection, target shooting, or other individual pursuits.
[COMMENT: Since the Second Amendment is about people's control
of the government, sporting purposes are a total strawman.]
FACT: Although the gun lobby, led by the National Rifle Association,
literally spends millions of dollars each year promoting this false
claim, the truth is the federal courts have unanimously held that the
right to keep and bear arms is limited to participation in an
organized militia... that the Second Amendment does not guarantee the
right of individuals to own and to carry arms.
[COMMENT: Notice they say "federal courts," not "the Supreme Court."
I find the term "unanimous" to be somewhat unbelievable. Are there
any federal court rulings that say otherwise? Are there any federal
courd rulings that DO say what HCI claims? I've seen references on
tpg in the past to "rulings on which the SC refused to hear appeals..."]
FRAUD: Because the Second Amendment guarantees Americans the right to
bear arms, the government cannot forbid Americans to own firearms,
such as handguns, or even assault weapons.
FACT: No federal court in history has ever overturned a gun control
law on Second Amendment grounds. To the contrary, the courts have held
that this amendment does not prohibit Congress from regulating the
interstate sale of weapons, nor does it prevent the states from
regulating the use and sale of firearms as they see fit.
FRAUD: Because it contains the phrase, "the right of the people to
keep and bear arms," the Second Amendment was meant to confer an
individual right to own and use firearms.
FACT: During colonial days, Americans held a great distrust of
standing armies and, in order to get the Constitution ratified, the
framers had to include a Bill of Rights provision to protect state
militias from federal encroachment. Thus, "of the people" refers to
the right of the people to participate in organized state militias,
free from interference by the federal government.
[COMMENT: Boy, THAT provision sure worked real well.]
FRAUD: A "well-regulated militia" refers to those persons who live
within the boundaries of any given state, and that's why each citizen
of a state retains a fundamental "right to keep and bear arms."
[COMMENT: Who the hell has ever claimed THAT?]
FACT: The term "well-regulated militia" has been consistently viewed
by the federal courts as the active, organized militia of each state.
Moreover, the US Supreme Court has twice held that the National Guard
is the modern day equivalent of a state militia. Of course, the
National Guard does not use privately owned firearms at all.
[COMMENT: What are these federal court rulings? As for the Guard
argument, this will come as quote a shock to my fellow Massachusans,
since the federal government is about to decimate OUR "state" militia
by cutting our National Guard back to the bone.]
Comments? Provable lies? Citations?
--
c...@pdp.sw.stratus.com --If you believe that I speak for my company,
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Robert Paull
Stuf about HCI deleted..........What's worse, HCI is trying to get school
textbooks to reflect their and only their point of view. BARF.
--------------
RP
Frank Crary
>Here's an interesting HCI document I just came across called
>"The Second Amendment: Fraud and Fact."
>FRAUD: The Second Amendment to the Constitution guarantees each
>individual the unlimited right to own and use guns for hunting,
>self-protection, target shooting, or other individual pursuits.
Technically true, since the Court has ruled (on several occasions) that
the right of private citizens to own guns is subject to reasonable
limitations. I don't think the Court recognizes _any_ right to be
"unlimited."
>...the truth is the federal courts have unanimously held that the
>right to keep and bear arms is limited to participation in an
>organized militia...
I don't believe any Supreme Court ruling on gun ownership ever refered
to an organized militia. The closest they came, was in US v. Miller,
were they ruled that only weapons usefull to a militia are protected.
There was a lower court ruling (I don't have the reference) which, in
effect, said that the Second Amendment didn't really mean it. But this
ruling doesn't stand _any_ close inspection: It cites, for example,
vague passages on the militia (which imply that widespread, private
gun ownership isn't needed for an effective, modern militia) from an
"authority" on the Constitution. But if one looks at the cited work,
one finds clear statements on the next page, saying that the Second
Amendment protects private gun ownership, _regardless_ of the needs
of a well organized militia. I've heard the ruling described as "not
even up to undergraduate levels of research."
>that the Second Amendment does not guarantee the
>right of individuals to own and to carry arms.
In US v. Cruikshank, the Court ruled on private ownership of firearms,
saying that, "The second amendment declares that it shall not be
infringed..."
>FACT: No federal court in history has ever overturned a gun control
>law on Second Amendment grounds.
This is out of date: A federal court in Illinois has overturned the
National Friearms Act of 1934, on the grounds that Congress has no
power to regulate firearms sales, except as part of enforcing a tax.
Since a 1986 law prevents further taxes from being collected, NFA 1934
is viod, as it enforces a non-existant tax.
>...nor does it prevent the states from
>regulating the use and sale of firearms as they see fit.
In Presser v. Illinois, the Court ruled that, "...the States cannot,
even laying the constitutional provisions in question out of view, prohibit
the people from keeping and bearing arms, so as to deprive the United
States of their rightfull resource for maintaining the public safety [the
militia], and disable the people from performing their duty to the general
government."
In Patsone v. Pennsylvania, the Court (O. W. Homes writting the decision)
said that, while hunting weapons could be banned to enforce a ban on
hunting, "The prohabition does not extend to weapons such as pistols that
may be supposed to be needed occasionally for self-defense."
>FRAUD: Because it contains the phrase, "the right of the people to
>keep and bear arms," the Second Amendment was meant to confer an
>individual right to own and use firearms.
The Bill of Rights was based on several proposed sets of amendments, and\
it can reasonable be assumed that an amendment similar to the Second
Amendment would have had a similar intent. For example,
"That the people have a right to keep and bear arms for the defence of
themselves and their own state, or the United States, or for the
purpose of killing game; and no law shall be passed for disarming the
people, or any of them, unless for crimes committed, or real danger of
public injury from individuals..." (Proposed by the Pennsylvania minority.)
_Every_ Supreme Court ruling to consider (or even mention) the Second
Amendment has treated it as an individual right, even if not an
unlimited one.
>FACT: During colonial days, Americans held a great distrust of
>standing armies and, in order to get the Constitution ratified, the
>framers had to include a Bill of Rights provision to protect state
>militias from federal encroachment.
Section Eight, Article One of the Constitution puts arming, determining
the manner of training, and the manner of calling up the militia under
control of the Congress. This is in no way is altered by the Second
Amendment: The States have no authority to arm, train or call up the
militia, except as specified by Congress.
Further, Madison had originally planned to insert the amendments into
the text of the Consitution, rather than append them to the end of
the document. What became the Second Amendment was to have been placed
in Section Nine, Article One next to clauses on Habius Corpus, trial
by jury, and other personal rights. It was _not_ to have been inserted
in Section Ten, where the state vs. federal powers are specified.
>FRAUD: A "well-regulated militia" refers to those persons who live
>within the boundaries of any given state, and that's why each citizen
>of a state retains a fundamental "right to keep and bear arms."
Under US Title X, "militia" means all men between that ages of 18
and 45.
>FACT: The term "well-regulated militia" has been consistently viewed
>by the federal courts as the active, organized militia of each state.
In US v. Miller and Presser v. Illinois, the Supreme Court took the
term "militia" in the context of the Second Amendment, to mean armed
citizens in general: "...the Militia comprised all males physically
capable of acting in concert for the common defense... these men were
expected to appear bearing arms supplied by themselves and of a kind in
common [military] use at the time."
>Moreover, the US Supreme Court has twice held that the National Guard
>is the modern day equivalent of a state militia. Of course, the
>National Guard does not use privately owned firearms at all.
The Supreme Court has ruled specifically that the National Guard is
_not_ the same as the state militias, and that it is subject to Presidential
orders as part of the "standing army." They have ruled that the National
Guard is also _part_ of the militia.
Frank Crary
UC Berkeley
IC...@asuacad.bitnet
by Mark Moritz, for the GUN DEVILS Shooting Club at Arizona State
University, c/o Student Life -0512, ASU, Tempe, AZ 85287-0512.
Re: Supreme Court interpretations of the Second Amendment.
The Court most recently mentioned the Second Amendment in dicta in
United States v. Verdugo-Urquidez, 110 S. Ct. 1839 (1990).
Verdugo-Urquidez was a citizen and resident of Mexico, and a drug
dealer. The Mexican police arrested him in Mexico, and brought
him to the U.S., where the U.S. cops arrested him. With the
permission of the Mexican police, the U.S. narcs searched his
residence (in Mexico), and found documentary evidence detailing
drug shipments to the U.S. Verdugo-Urquidez moved for suppression
of that evidence as a violation of the Fourth Amendment prohibition
against unreasonable searches and seizures.
The question for the court: Does the Fourth Amendment apply to
non-resident non-citizens outside the U.S.? The answer: no.
The court's reasoning: The Fourth Amendment protects the right of
"the people" to be secure against unreasonable searches and
seizures. Who are "the people"? According to Chief Justice
Rehnquist, the phrase "the people" was a term of art used by the
Framers. Rehnquist wrote:
The Second Amendment protects "the right of the people
to keep and bear Arms," and the Ninth and Tenth
Amendments provide that certain rights and powers are
retained by and reserved to "the people." See also U.S.
Const., Amdt. 1, ("Congress shall make no law ...
abridging ... the right of the people peaceably to
assemble"); Art. I, s 2, cl. 1 ("The House of
Representatives shall be composed of Members chosen every
second Year by the People of the several States")
(emphasis added). While this textual exegesis is by no
means conclusive, it suggests that "the people" protected
by the Fourth Amendment, and by the First and Second
Amendments, and to whom rights and powers are reserved
in the Ninth and Tenth Amendments, refers to a class of
persons who are part of a national community or who have
otherwise developed sufficient connection with this
country to be considered part of that community. 110 S.
Ct. at 1061.
Since Verdugo-Urquidez is not part of "the people," he is not
protected by the Fourth Amendments (nor, apparently, by the First,
Second, Ninth, or Tenth).
The Supreme Court therefore views the words "the people" in the
Second Amendment to have the same meaning as in the First, Fourth,
Ninth, and Tenth Amendments. If "the people" really meant the
right of states to maintain a militia then we would be left with
the absurd notion that only the states have the right to peaceably
assemble, only the states have the right to be secure in their
persons and property, etc. The Supreme Court's position is
indisputable: the Second Amendment protects the individual right
to bear arms.
Also instructive is the Report of the Subcommittee on the
Constitution of the Committee on the Judiciary, United States
Senate, 97th Congress, Second Session (February 1982):
The conclusion is thus inescapable that the history,
concept, and wording of the second amendment to the
Constitution of the United States, as well as its
interpretation by every major commentator and court in
the first half-century after its ratification, indicates
that what is protected is an individual right of a
private citizen to own and carry firearms in a peaceful
manner.
This hardly supports the premise that an individual right is
"universally unaccepted."
Anti-gunners frequently use the "big lie" technique, to the effect
that "the Supreme Court has consistently ruled that the Second
Amendment does not apply to individual citizens; it only protects
the right of the National Guard to go duck hunting." Here is a
nutshell history of Supreme Court rulings on the Second Amendment:
United States v. Miller, 307 U.S. 174 (1939). Mr. Miller was a
very bad dude, charged with a laundry list of heinous crimes. They
threw the book at him, including carrying a sawed-off shotgun, a
violation of the National Firearms Act of 1934. When his case came
up before the Supreme Court, Miller had skipped; he was a fugitive.
No lawyer appeared to argue his side of the case; only the
government lawyers showed up. (Some fair trial, huh?) Now, if the
Second Amendment only protected the state militia, the case would
have been easy. All the court would have had to do was say that
Miller could not own a gun because he was not a member of the
militia, end of discussion. But they didn't say that. Why not?
In effect, they conceded that the Second Amendment protects an
individual right, but still said that it was constitutional for the
government to prohibit sawed-off shotguns. Their reasoning?
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.
There are three interesting things about the court's statement.
First, of course it was not in their notice; nobody was present to
bring it to their notice! Second, had a knowledgeable advocate
been present, he would have brought to the court's notice that
short-barrelled shotguns have long been used as ordinary military
equipment, from Revolutionary War blunderbusses to luparas in the
Spanish-American War to trench-cleaners in The War To End All Wars.
Subsequently, U.S. troops used sawed-off shotguns in World War II,
and "tunnel rats" used them in Vietnam.
Third, and most important, is that the court seems to be saying
that the Second Amendment only protects the right of individual
citizens to have "ordinary military equipment." Very interesting.
What are semi-automatic "assault rifles" if not ordinary military
equipment? When California's assault rifle ban reaches the Supreme
Court, Miller will present a real problem for the anti-gunners.
There are no other Supreme Court cases in the 20th Century, but
there are dozens of state cases that support the individual right
to bear weapons (not "sporting goods"). See, for example,
State v. Swanton, 129 Ariz. 131 (Ct. App. 1981) ("[T]he term 'arms'
as used means such arms as are recognized in civilized warfare. .
. ")
State v. Kessler, 289 Or. 359 (1980) ("[T]he terms 'arms' most
likely would include only the modern day equivalents of the weapons
used by colonial militiamen.")
also
State ex rel. City of Princeton v. Buckner, 377 S.E. 2d 139 (W.Va.
1988)
Barnett v. State, 72 Or. App. 585 (1985)
State v. Delgado, 298 Or. 395 (1984)
City of Lakewood v. Pillow, 180 Colo. 20 (1972)
City of Las Vegas v. Moberg, 82 N.M. 626 (Ct. App. 1971)
and dozens more.
There were few, if any, gun control laws on the books until after
the Civil War. Then, suddenly, every Southern state had a law
prohibiting newly-freed slaves from owning guns. (Guess why? It
was getting damned dangerous for the Klansmen to lynch blacks.)
The Fourteenth Amendment rendered those "Black Codes"
unconstitutional, so the Southerners figured out some backdoor
methods. One was banning cheap guns (the term Saturday Night
Special has its origin in the racial slur "Niggertown Saturday
Night," which was similar to "Father's Day in Harlem" or "Chinese
Fire Drill.") Another was a permit system/waiting period/
background check, requiring approval of the sheriff, who usually
just happened to be a Klansman.
United States v. Cruikshank, 92 U.S. 542 (1876). In Louisiana, a
hundred or so good old boys got word that there were some "uppity
niggers" having an organizational meeting, to try to protect
themselves against constant attacks by white gangs. The good old
boys got together and crashed the party. They took away the
Negroes' guns, and then proceeded to murder them. They were
charged with conspiring to deprive their victims of their
constitutional rights to assemble, and to bear arms.
The court ruled that (1) the First and Second Amendments did not
apply to the states, (2) the Fourteenth Amendment only prohibited
the State from depriving the people of their rights, and the good
old boys were not agents of the State, and (3) the controlling
Enforcement Acts protected only those rights "granted by the
Constitution." The court said that the rights to assemble and to
bear arms were fundamental rights. They were not "granted" by the
Constitution, but were inalienable; they were rights with which the
victims were "endowed by their Creator." Therefore, the rights
were not protected by the Enforcement Acts, and the KKK boys
literally got away with murder! (This is a case proudly cited by
people who call themselves "liberals," instead of the racist scum
that they really are.)
Presser v. Illinois, 116 U.S. 252 (1886). Presser had organized
a society of German immigrants (Lehr und Wehr Verein) who believed
that regular military drill was an important part of good
citizenship. Four hundred of them paraded through downtown
Chicago, carrying rifles. Presser was charged with parading
without a license, and organizing and maintaining a private army.
He claimed that the Illinois statutes violated his rights under
the First Amendment (freedom of assembly) and the Second Amendment
(right to bear arms). The court ruled that the Bill of Rights
applied only to the federal government, not to the States, and that
any State could prohibit free speech, free exercise of religion,
assembly, bearing of arms, etc.
In Presser, the Court never mentioned the individual right to bear
arms; the case dealt only with an armed organization.
Miller v. Texas, 153 U.S. 535 (1894). Texas had a law forbidding
the carrying of weapons, and authorizing arrest without warrant
for any violation. Miller claimed this violated the Second
Amendment and the Fourth Amendment. The Court again ruled that
"the restrictions of this amendments operate only upon the Federal
power." But they admitted that it was possible that the Fourteenth
Amendment might cause the Bill of Rights to apply to the States as
well. However, Miller did not raise his objection early enough.
"If the Fourteenth Amendment limited the power of the States as to
such rights . . . we think it was fatal to this claim that it was
not set up in the trial court." Id. at 538.
Subsequent to Cruikshank, Presser, and Miller v. Texas, the Court
ruled that the Fourteenth Amendment does in fact cause the Bill of
Rights to apply to the States. In effect, those three cases have
been invalidated. To believe otherwise is to believe that the
States can restrict religion, speech, and assembly, to execute
unreasonable searches and seizures, to deny jury trials, or to
infringe the right to bear arms.
An important note: the Court never doubted for an instant that
the right to bear arms was not an individual right which the
Federal government could not infringe. These cases never talked
about the Second Amendment being a right of States to organize
militias. It has always been assumed that the right to bear arms
is a right of individual citizens to bear arms.
Perhaps the Supreme Court's most infamous decision was Dred Scott
v. Sandford, 60 U.S. (19 How.) 393 (1857). Chief Justice Taney
said that Negroes could not be "citizens," because if they were,
they would have the right to vote, to assemble, to speak on
political subjects, to travel freely, and "to keep and carry arms
wherever they went." Id. at 417. Taney, the classic racist, found
that prospect inconceivable. It is noteworthy, though, that the
Supreme Court considered the right to carry guns wherever they go
an individual right of every citizen, along with voting, speaking,
assembling. "Nor can Congress deny the people the right to keep
and bear arms, nor the right to trial by jury, nor compel anyone
to be a witness against himself. . . ." Id. at 450. Obviously,
"the people" refers to all citizens, not the states or militia, or
the rest of the sentence becomes meaningless. See Verdugo-
Urquidez, supra.
What the Second Amendment protects is an individual right to bear
military weapons, not for hunting, not for target shooting, not
for repelling foreign invaders, but for the purpose of preventing
oppression of the people by their own government. The historical,
textual, structural, doctrinal, prudential, judicial, and
legislative evidence is devastating. The claim that this is
"universally unaccepted" is as ludicrous as Saddam Hussein's claim
of victory over the Great Satan.
Any intelligent person who wishes to study the matter seriously
should begin with S. Levinson, The Embarrassing Second Amendment,
99 Yale L.J. 637. Professor Levinson (University of Texas) is a
devout liberal (as am I) who set out to prove once and for all that
the Second Amendment does not protect an individual right (etc. ad
nauseam, per Sultan). To his great embarrassment (hence the
title), he found overwhelming evidence to the contrary. He had the
academic integrity to admit it, for which he deserves great
admiration. He does not like gun ownership, any more than some
people like flag-burning or organized religion, but he recognizes
that the individual right exists, whether one likes it or not.
Sources of information on the Second Amendment:
U.S. SUPREME COURT
U.S. v. Verdugo-Urquidez, 110 S.Ct. 1839 (1990).
U.S. v. Miller, 307 U.S. 174 (1939).
U.S. v. Cruikshank, 92 U.S. 542 (1876).
Presser v. Illinois, 116 U.S. 252 (1886).
Miller v. Texas, 153 U.S. 535 (1894).
Dred Scott v. Sandford, 60 U.S. 393 (1856).
LAW JOURNAL ARTICLES
Bordenet, The Right to Possess Arms: The Intent of the Framers
of the Second Amendment, 21 Univ. W. Los Angeles L. Rev. 1
(1990).
Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637
(1989).
Hardy, The Second Amendment and the Historiaography of the Bill
of Rights, 4 jour. of Law & Politics 1 (1987).
Halbrook, What the Framers Intended: A Linguistic Analysis of
the Right to "Bear Arms", 49 Law & Contemp. Problems 151 (1986).
Dowlut, The Current Relevancy of Keeping and Bearing Arms, 15
Univ. Balt. L. Forum 32 (1984).
Kates, Handgun Prohibition and the Original Meaning of the Second
Amendment, 82 Mich. L. Rev. 204 (1983).
Caplan, The Right of the Individual to Bear Arms: A Recent
Judicial Trend, 1982 Detroit Col. L. Rev. 789 (1982).
BOOKS
Hardy, Origins and Development of the Second Amendment, (1986).
S. Halbrook, That Every Man Be Armed: The Evolution of a
Constitutional Right (1984).
ed. Kates, Restricting Handguns: The Liberal Skeptics Speak Out
(1979).
OTHER
The Right to Keep and Bear Arms, Report of Subcom. on the
Constitution of the Senate Judiciary Comm. 97th Cong. 2d Sess.
(Feb. 1982).
wayne john warf
>In article <19...@transfer.stratus.com> c...@sw.stratus.com (C. D. Tavares) writes:
>>FACT: No federal court in history has ever overturned a gun control
>>law on Second Amendment grounds
>This is out of date: A federal court in Illinois has overturned the
>National Friearms Act of 1934, on the grounds that Congress has no
>power to regulate firearms sales, except as part of enforcing a tax.
>Since a 1986 law prevents further taxes from being collected, NFA 1934
>is viod, as it enforces a non-existant tax.
>
!!!Wait!!! Don't leave me hanging! What's the background of the case,
opinion, implications. How about Title II, still valid? I hadn't heard
about this one.
--
* WW...@ucs.indiana.edu**I speak for me,OK?**sic semper tyrannis *
* NRA LIFE* *NRA Certified Instructor* *Penna. R&PA* *Ind. SR&PA *
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* Bloomington, IN 47405 USA* *Pennsylvania CCW Lic.*Indiana CCW Lic. *
Frank Crary
>>This is out of date: A federal court in Illinois has overturned the
>>National Friearms Act of 1934, on the grounds that Congress has no
>>power to regulate firearms sales, except as part of enforcing a tax.
>>Since a 1986 law prevents further taxes from being collected, NFA 1934
>>is viod, as it enforces a non-existant tax.
>!!!Wait!!! Don't leave me hanging! What's the background of the case,
>opinion, implications. How about Title II, still valid? I hadn't heard
>about this one.
Someone posted the full text of the ruling a few months ago. The case was
(I think) US v. Rock Island Arsenal, and was ruled on in 1990. It's
certainly going to be appealed. The ruling cited the debates around the
National Firearms Act of 1934. The Congressmen cited were basically saying,
"We'd like to ban machinegun out right, but we don't have any legal authority
to do so. We can, however, put a prohibitive tax on them, and make lost of
restirctive registration laws to help enforce the tax." (Apparently, in 1934,
Congress was still concerned about the Constitutional limits on its powers...)
Since 1986, Congress has barred BAFT from collecting (some of?) the taxes
specified by NFA 1934. The federal district court for northern Illinois
has apparently ruled that, since the tax is no longer collected, there is
no legal or Constitutional justification for the registration laws (E.g.
they are justified only to collect a tax, and are no longer valid since the
tax is no longer collected.)
IMPORTANT NOTE: A ruling from a district court is valid _only_ within that
court's district. This ruling applies _only_ to northern Illinois. If you
are arrested for owning an unregistered machine gun any where else, your
lawyer can cite the case as a precident, and the judge may concur, but
not automatically.
Frank Crary
UC Berkeley