25 June 2009

Does the Second Amendment apply to the States?

The problem with the Second Amendment is that it was intended to prevent Federal interference with State run militias organised under Article I, Section 8. I've gone on at length that most of the half quotations used by those posing as Second Amendment scholars deal with the conflict between the Federal Army and the State Militias set up under Article I, Section 8--not some weird individual right. That was pointed out in United States v. Miller, 307 U.S. 174 (1939) where the Supreme Court had directly addressed the scope of the Second Amendment:

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. 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. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. 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.

Scalia breezed over this very salient point to Second Amendment jurisprudence as do most alleged "Second Amendment Scholars". Amusingly enough, Scalia has already said it doesn't: “[T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states.” A Matter of Interpretation: Federal Courts and the Law (1997). Let's see if he can stick with his own precedent!

Anyway, The Second Amendment is a limitation on the Federal Power granted Under Article I, Section 8. As I pointed out in my critique of Dellinger's advocacy he neglected that Miller had already set for the standard of review and that the Second Amendment was written to address the Federal Power granted Under Article I, Section 8, which he should have hammered on about like a broken record.

Now, Any first year law student who has participated in moot court knows that one shouldn't let the Judges take over your argument. Dellinger should have hammered that it was settled law by a Unanimous opinion and that the Second Amendment guarantee should not be extended.

Now with Chicago fighting any Second Amendment challenge to its gun ban based upon the Second Amendment being a limitation on the power of Congress/Federal Government and not local jurisdiction. I hope that Chicago has better appellate advocates than does Washington, DC.

On the other hand, I hope that other lawyers see the advantage to open up the scope of rights granted by the Bill of Rights since Heller was willing to give a broad reading to the rights granted under that document. The Heller decision was bad law as it set a precedent which will allow for much mischief by clever lawyers.

Why should we be bound by the words of the Constitution, especially where clever lawyers can argue an extension of our rights?

As I said, isn't health care a fundamental right? How can one argue with health care?

I want my right to health care that is guaranteed under the Ninth Amendment!