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Reruns The Doghouse
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An Individual Right Partisanconservative 09/02/01 Dear PiC Members, Let me 1st extend an appreciation to the PiC founders, for allowing me this opportunity to speak about the Bill of rights, and the element of "individual rights", as it pertains to them. This opportunity has given me much more time to assess the legal aspects & history in the right to bear arms, besides the more modern understanding of guns and the facts involved that demonstrate their effect at reducing crime, which has been occurring over the last decade+ in the U.S.
Let me begin by prefacing that I’m a proud member of the NRA, and a declared Independent Conservative with no party affiliation. I have no legal education or experience in law, thus I must gain most of my information through written resources, and legal pundits that I deem credible and honest. I am obviously biased in my opinions, and hold convictions that are near and dear to me. So, I will do my best to be as concise, informative, and objective as possible, given those aspects of myself that I’ve just mentioned. It is also to my advantage not to be a legal scholar, since as a result, I have no need, obligation, or desire to parse words, or decide on which definition of "is" that I’m going to use. I’ll simply copy segments from transcripts, in their full, and allow you folks to read for content and desired comprehension.
Here was the question that initiated such a lengthy response on my part: "Good morning, and a polite question. You have been presented with overwhelming evidence that the courts of this country find no individual right in the 2nd Amendment. You live in the 9th Circuit, which has been perhaps the most demonsytative of the circuits on this issue, If you raise a constitutional defense to a state or federal gun charge in a 9th Circuit court you will lose. Period. How then, as you are being taken to jail or stare up at a large fine can you claim that you were exercising a protected right?" <PiC post # 148231>
This would imply an impasse. On the one hand, most lawyers, liberal legal scholars, lower courts, and bureaucrats seem united in their conviction that U.S. citizens have no right to keep and bear arms. While, on the other hand, most Americans insist they do have such a right. Where does this leave us? In situations where a dispute arises over the meaning of the Constitution, scholars generally turn to the writings of the framers to discern their original intent. Not only did the Framers have a clear intent in mind, but they also left an unmistakable paper trail, in the form of letters, pamphlets, and articles, stating those intentions. Any HONEST scholar, who takes the trouble to READ the available documents will come to the obvious conclusion that the 2nd Amendment is an individual right.
However, it has been argued by various liberal legal scholars and like minds, both in the mainstream and here in PiC, that the 2nd amendment is not an individual right, which begs the question, "then what is it"? Is it a "militia right"? Is it a "non-right"? Is it an "outdated right"?
Well, before getting into specifics, let’s look at a few of the original documents in question. The beginning of the Preamble states: "THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."It would appear that the pending Bill of rights is to be implemented in order to help ensure the Country’s citizens from being victims to the possible abuse of power that can so often infect powerful governmental bodies.
Specifically in the 2nd amendment, we have: 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. (OK, so I did capitalize a portion of the amendment, the text is accurate though, the caps are for emphasis) So, we seem to come down to the "moral argument" vs. the "legal argument"
It has been brought to our attention, that the 9th Circuit Court of Appeals has stated "The question presented at the threshold of Hickman's appeal is whether the Second Amendment confers upon individual citizens standing to enforce the right to keep and bear arguments. We follow our sister circuits in holding that the Second Amendment is a right held by the states and does not protect the possession of a weapon by a private citizen. <PiC post #148261>"
So, we are to conclude apparently, that the right does not exist, correct?, which again takes us back to the original questions that presents us with. This extreme position would seem to be designed specifically to try to kill the true meaning of the Second Amendment with a single irresponsible ruling.Before we delve into the legal argument, let’s 1st brush over the moral argument, and quickly touch bases on the facts of the matter as it pertains to firearms’ usage.
It’s an extremely safe bet to make, that when this country was founded, it was done so on the basis of individual rights. It was a direct result of breaking away from the monarchy and central government ruled country of England. The founders then set forth via the founding documents of the Declaration of Independence and the Constitution, the means by which the country could both govern itself on the whole, while placing checks and balances along the way, so that no 1 segment of the Government could rule over the others, AND that the Government itself would have restrictions placed upon itself, to protect it’s citizens from any threat of an overbearing or oppressive regime. Yes, the framers of the American Constitution were strongly of the opinion that "it could happen here." They drafted the Constitution as a counterpoint to the abuses of government which they had endured themselves and which they knew about from history. Not the least of these abuses were the French government's mass persecutions of the disarmed Huguenots in the previous century. Indeed, a sizable number of Huguenots fled to the United States.
How can I make such claims? Easy, those that helped write the constitution, stated so in their own words. No matter how much various liberal legal scholars, gun control pundits, and like minds in PiC, would wish us to discount the Federalist papers, they clearly demonstrate the intentions of the founders, in how the 2nd Amendment should be interpreted.
Just to name a couple of founders and their intentions, Federalist #29 by Hamilton; "if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist. Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests?''
Remember, please read for content. If you do, again, it is quite clear. ]
And Federalist #46 by Madison; "The adversaries of the Constitution seem to have lost sight of the people altogether in their reasoning on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error." Further on Madison states "To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors."
Now, to "me", it’s quite evident that the "militia" in question is basically the "people of the U.S." It stands to reason, when you read for content what Madison and Hamilton are espousing to, in regards to the protection of the U.S. beyond that of the Military. So what is the "militia" then? Well, according to definitions provided by Cornell, there are 2 forms, or "classes".
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
The Guard is subject to absolute federal control (Perpich v. Dept. of Defense, 1990) and thus is not the "well regulated militia" named in the Second Amendment. "The Militia of the United States" is defined under federal law to include all able-bodied males of age and some other males and females with the Guard established as only its "organized" element. This seems to make perfect sense, since the militia can be "both" organized (National Guard) AND unorganized (Individual citizens) elements. One can also understand gun control advocates who impress the wording of "Militia" to mean the National Guard only, while conveniently ignoring the much larger portion that would make up the rest of the Militia, and how consistent that falls in line with the Constitutional Framers, and their clear intentions. OK, I got that partisan rant out of the way.
Which takes us back to the Bill of Rights, itself. Clearly, when read in context, these 1st 10 rights are ALL geared towards individuals of this country, and their protection from an oppressive governing body. Every one of the 10, has wording that references individuals, including the 2nd. It is wholly illogical for 9 of the 10 Bill of Rights to be completely focused on "individual rights", yet somehow the 2nd most important right the Founders deemed vital, is somehow, a "collective right". When in fact, the Founding Fathers, the Framers of the Constitution and Bill of Rights, and those whom the Supreme Court (U.S. v. Miller, 1939) referred to as "approved commentators" of their day could not have been more clear about the nature of the right and the purpose of the Amendment. Patrick Henry said, "The great object is that every man be armed." Richard Henry Lee wrote, "To preserve liberty it is essential that the whole body of people always possess arms." Thomas Paine noted, "Arms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. . . Horrid mischief would ensue were the law-abiding deprived of the use of them." Thomas Jefferson said, "no free man shall be debarred the use of arms." In introducing the Bill of Rights in the House of Representatives, James Madison noted that the amendments "relate first to private rights." Sen. William Grayson observed that they "altogether respected personal liberty." Prominent Federalist Tench Coxe wrote, "The people are confirmed by the next article (of amendment) in their right to keep and bear their private arms."
I can’t say this enough, when one reads for content, and does not parse every word apart, it can’t be made much clearer what the 2nd Amendment means, was to be intended, and how it specifically and consistently supports rights of the individual.
Before touting the statements made by the Supreme Court, in relation to the 2nd Amendment, let me simply add to the "mountain of evidence" why individuals have and deserve such an individual right, besides the obvious.
When looking at the U.S. you see, in my humble opinion, the greatest country on the planet. Why? Because it’s predicated on freedom, and with that freedom, the pursuit of anything one wants to do or be. As with anything, there is good and bad, and we work to minimize the bad, while accentuating the good. Our country has it’s bad aspects, but again in my opinion, is dwarfed by those elements I would consider good. With Freedom, comes risk, which is indelibly inherent to freedom. The drafters of the American Constitution trusted the people more than the government, and intended the armed populace to be the ultimate check in the system of checks and balances, and meant to reserve to the American people the right affirmed in the Declaration of Independence to "alter or abolish" a tyrannical government.. The Constitution is in fact the primary arm of restriction upon the Federal Government, upon its citizens. Not the other way around. The 2nd amendment, besides being the primary disuader of an oppressive government, also plays a huge factor in undermining and defending against criminal activity. It’s been demonstrated over and over, that areas with stricter gun control laws (meaning a decreased ability for law abiding citizens to acquire, own, and possess firearms) demonstrate markedly higher violent crime, which includes murder, rape, assaults, and home invasions. Washington, D.C., banned handguns in 1976, and by 1991 its homicide rate had tripled, while the U.S. rate rose only 12%. Gun control activists frequently recite that the U.S. has a higher total # of gun deaths, when compared to other countries. This is a selective truth, given that the U.S. has one of the highest populations of any country in the world, and that its citizens are constitutionally allowed to own firearms, combined with the criminal element who uses guns in their crimes. What is ignored by gun control activists, is again the fact that areas with more permissive concealed carry provisions have lower violent crime rates than areas that are much stricter or deny law-abiding citizens ownership of firearms (i.e. pistols) all-together. A study for the Department of Justice concluded, "Advocates of stricter weapons regulations sometimes assert that the United States is virtually the only advanced civilized nation in the world that exercises no controls over the civilian ownership of possession or use of firearms. In fact there are about 20,000 firearms laws of one sort or another already on the books." (Wright, Rossi, Under the Gun, 1983.) Countries that have banned or severely restricted private ownership of firearms, again demonstrate higher violent crime rates, which again includes, rape, murder, and home invasions, when compared to the U.S. This again, is an undisputed fact, yet so often tends to be ignored by those that can not see past their preconceived opinion.
As we delve into the "legal argument", we will bypass the lower courts, (State, District, Circuit, etc.) and focus on the ultimate arbiter of legal conclusions and interpretations, the United States Supreme Court. Despite liberal legal pundits claims that the current 9th Circuit Court decision states that no individual right exists, the U.S. Supreme Court has recognized it as an individual right in several cases. Control activists often claim that the U.S. Supreme Court has held that the 2nd Amendment does not guarantee an individual right to keep and bear arms, but offers only a "collective right" for the organized military forces of the states to have governmentally owned arms. This "Collective Rights" approach is a newcomer to theories of constitutional law and made its first appearance only in the Twentieth Century. Not only does the "Collective Rights" theory run counter to overwhelming textual and historical evidence, but the Supreme Court has NEVER held such a theory applicable to the 2nd Amendment.
Dred Scott v. Sanford; This was the first case in which the Supreme Court mentioned the right to keep and bear arms. The issue before this pre-Civil War and pre-emancipation court was whether blacks were "citizens." The court stated that if blacks were citizens, they would have the same constitutional protections afforded to white citizens, which included the right to keep and bear arms. "It would give to persons of the negro race . . . the right to enter every other State whenever they pleased, . . . and it would give them the full liberty of speech . . . ; to hold public meetings upon political affairs, AND TO KEEP AND CARRY ARMS wherever they went." The court specifically placed the right to keep and bear arms in the same category as the other fundamental individual rights that are protected from governmental infringement by the Bill of Rights: "Nor can Congress DENY 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."
The U.S. Supreme Court recognized that the right to arms IS AN INDIVDIUAL RIGHT in U.S. v. Cruikshank (1876), in which the Court also apparently recognized that the right preexisted the Constitution. The individual right was also concluded to exist in Presser v. Illinois (1886), Miller v. Texas (1893), and in U.S. v. Miller 307 U.S. 174 (1939). In U.S. v. Emerson ( N. Dist. Texas, 1999), Judge Sam Cummings ruled that "A textual analysis of the 2nd Amendment supports an individual right to bear arms."
In Miller v. Texas, 153 U.S. 535, 538, (1893); the defendant challenged a Texas statute on the bearing of pistols as violative of the 2nd, 4th, and 14th Amendments. The problem for Miller apparently was that he failed to timely raise these defenses in the state trial and appellate courts, raising these issues for the first time in the U.S. Supreme Court. The Court recognized Miller, in its rulings, as a private citizen, did enjoy individual 2nd Amendment protection, even if he was not enrolled in the National Guard or Armed Forces.
In Robertson v. Baldwin, 165 U.S. 275, 281-82, (1897) ; though it did not involve a 2nd Amendment claim specifically, in discussing the 13th Amendment, the Court again recognized the 2nd Amendment as a "fundamental" individual right of citizens; which, like the other fundamental rights, is not absolute. In this case, it would seem that the Supreme Court viewed the 2nd Amendment as being a protection for individual citizens against not only interference by the federal government but also against interference by state governments. This case also gives rise to the "Collective Rights" theory: Gun control activists often cite this case for the proposition that the court held that the Second Amendment only protected the right of the states' National Guard to have government issued arms This is an untruth, since in fact, the court held that the entire populace constituted the "militia," and that the 2nd Amendment protected the right of the individual to keep and bear militia type arms. Plus, I’ve already addressed what "is" the Militia, so that theory is truly debunked.
Some recent U. S. Supreme Court cases have also referred to the 2nd Amendment as a fundamental individual right as well it would appear.
Moore v. City of East Cleveland, 431 U.S. 494, 502, 542-543 (1976); in a 14th Amendment due process case, the Supreme Court put the right to keep and bear arms in company with other individual rights guaranteed by the Bill of Rights: "the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures . . . .".
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 848-849 (1992); an abortion case, the Supreme Court again quoted Justice Harlan's above noted list of individual rights.
United States v. Verdugo-Urquidez, 494, U.S. 259, 265, (1990); is a 4th Amendment case, in which the Supreme Court interpreted the meaning of the term "the people" in the Bill of Rights. The court stated that the term "the people" in the Second Amendment had the same meaning as in the Preamble to the Constitution and in the 1st, 4th, and 9th Amendments. In other words, the term "the people" means at least all citizens and legal aliens in the United States. This case, as again cited by the United States Supreme Court, and ultimate judicial and legal arbiter, thus makes clear that the 2nd Amendment is an individual right that applies to individual law-abiding Americans.
In closing, I answer the original question posed, with this retort, that given the overwhelming examples of Supreme Court case studies, that would seem to indicate a consistent individual right to own and bear arms, how then can one make the assertion that because 1 circuit court’s ruling that the right somehow does not exist, that it should be taken as "law of the land"? Let me also repeat the words of the country’s highest ranking attorney, AG Ashcroft. "While some have argued that the 2nd Amendment guarantees only a "collective right", of the States to maintain militias, I believe the Amendment’s plain meaning and original intent prove otherwise. Like the 1st and 4th Amendments, the 2nd Amendment protects the rights of "the people". Just as the 1st and 4th Amendment secure individual rights of speech and security respectfully, the 2nd Amendment protects an individual’s right to keep and bear arms."
Let me also again remind all of you, that I’m not a lawyer. All these conclusions are references I’ve read and have been backed up by legal constituents, in their writings and publications. The court cases are there for your viewing pleasure. I haven’t argued these cases to demonstrate that there is a concrete legal right to owning and possessing firearms, simply demonstrating to those on the liberal side of the spectrum, that there is sufficient, if not overwhelming evidence to the contrary of their assertions that the Federal court has somehow spoken, and that the individual right to own and possess firearms is not recognized. That would be far from the truth apparently, given the position and conclusions of the United States Supreme Court
Respectfully, Gary Timms aka Partisanconservative, Sirsebastopol, PC, and Sirs
Some URL references used: http://www.constitution.org/cs_found.htm http://unitedstates-on-line.com/federalist http://www.2ndlawlib.org/court/ http://www4.law.cornell.edu/uscode/10/311.html http://www.nraila.org/Articles.asp?FormMode=Detail&ID=66 http://www.jpfo.org/L-laws.htm
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