Showing posts with label Second Amendment. Show all posts
Showing posts with label Second Amendment. Show all posts

09 March 2010

8-Year-Old Accidentally Exercises Second Amendment Rights

No, not from Ohhh shoot, but the Onion (got that, you moronic fucks, I am crediting this to the Onion):
NORFOLK, VA--Gun owners nationwide are applauding the patriotic, though accidental, exercise of Second Amendment rights by 8-year-old Timothy Cummings Tuesday.

"Timothy is a symbol of American heroism," said NRA executive vice president Wayne LaPierre from Cummings' bedside at Norfolk General Hospital, where the boy is in serious but stable condition from a self-inflicted gunshot wound. "While praying for his recovery, we should all thank God that his inalienable right to keep and bear arms has not been infringed."

The incident occurred shortly after Cummings returned from school and found that his parents were absent from the house. Displaying what Second Amendment-rights groups are calling "good old-fashioned American ingenuity," Cummings placed a pair of phone books on a stool to retrieve his father's loaded .38-caliber revolver from its hiding place on a closet shelf. After a preliminary backyard investigation of his constitutional rights claimed the life of Pepper, the family's cocker spaniel, Cummings fell on the weapon, causing it to discharge into his left thigh.

"The framers of the Constitution would be so proud of what my boy did yesterday," said Cummings' father Randall, 44, who originally purchased the handgun for home defense. "If 8-year-old boys discharging loaded firearms into their own legs isn't necessary to the maintenance of a well-regulated militia, I don't know what is."

Doctors worked for six hours to reconstruct Timothy Cummings' femur, which shattered from the impact of the high-velocity teflon-coated slugs, and to graft his remaining muscular and circulatory tissue over the fist-sized exit wound below his left buttock. Although the boy lost a great deal of blood, attending physicians say they are confident that he will recover sufficiently to resume active use of firearms, though his chances of walking again are slim.

"For years, the people who want to take away our freedoms have said that we're not smart enough or responsible enough to own handguns," Randall added. "Timothy is proof that even a child is capable of using a handgun for its intended purpose."

Gun owners nationwide have flooded Cummings' hospital room with flowers, letters of congratulations and invitations to "come shooting." Area firearms enthusiast and family friend Lloyd Stone showed his support by donating 18 inches of vascular material to help rebuild Cummings' left femoral artery.

"He may be just a boy, but this use of the Second Amendment was a man-sized undertaking," Stone said. "Timothy may need a wheelchair for the rest of his life, but with every step he doesn't take, he'll realize what the Constitution really means."

Above: NRA executive vice president Wayne LaPierre praising Cummings' "commitment to the American way."

Although Cummings has yet to deliver an official statement on the incident, he regained consciousness long enough to discuss his immediate plans.

"Please, I want to run and play again," Cummings told doctors Tuesday night. "My leg hurts bad. Please make it stop."

Although gun-control advocates have criticized the boy's gun use, the NRA was quick to respond, calling Cummings' use of much-protested, teflon-coated "cop-killer" bullets "a victory for America."

"Timothy should be held up as an example to people who think we don't need these bullets--or fully automatic assault weapons, or concealable handguns which are impervious to metal detectors, for that matter," said NRA president Charlton Heston, who plans to congratulate Cummings in person as soon as he is through lobbying for Senate repeal of recently passed legislation mandating background checks for gun buyers.

"If we ban teflon-coated bullets, automatic weapons would be next," Heston said. "Then all handguns. Next thing you know, the law would deny our citizens' children the personal freedom to blow holes through their own legs."

NRA lobbyist Tom Korologos agreed. "Timothy's heroic accident happened because we live in the greatest country in the world," he said. "Had he grown up in Japan, England or Russia, he wouldn't be where he is today."

"Restrictive laws would have kept him 'safe' at home--and they would have justified it by telling us it was for his own good," Korologos added. "That's not the type of country I'd want my children to grow up walking normally in."

"Timothy is a shining example to gun-owning families everywhere," Cummings' mother Suzanne told reporters. "I am proud that my boy has followed in the footsteps of the many thousands of patriotic children who have already demonstrated their commitment of the U.S. Constitution in this same way."
© Copyright 2000 Onion, Inc., All rights reserved.

Got that, you stupid fucks, this was from the Onion and not my original material? It is credited, which takes it out of the realm of plagiarism.

Anyway, I have always said that if Mothers Against Drunk Driving had the same attitude toward Drunk Driving as some "RKBA/Second Amendment Supporters" do, they would be throwing keggers for underage kids.

01 March 2010

Will Scalia prove he uses the Constitution as toilet paper?

The US Supreme Court has another chance to prove that US justice is not the best money can buy in the case of McDonald v. Chicago.  Bouyed by its success in DC v. Heller, the Cato institute is yet again posed to prove the US justice runs by the golden rule: those with the gold make the rules.  Unlike DC v. Heller, they are much more blatant that they have been plaintiff shopping in their attempt to rewrite the constitution to their interpretation.  Added by the stupidity of the American public regarding the meaning of the Second Amendment as a guarantee against the establishment of a standing army now that the military budget has gone out of control (remember  that "Nobody ever went broke underestimating the intelligence of the American public" P.T. Barnum), they may just pull it off.

These words of Henry Mayer, a Patrick Henry scholar, have been drowned out by propagandists such as Stephen Halbrook:

In this connection, however, I need to say something about a recent popular misconception concerning Patrick Henry's legacy and the genesis of the Second Amendment, which states, "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." Despite efforts of a number of misguided scholars to construe this language as justifying individual, unregulated gun ownership, I am firmly convinced that the Second Amendment is concerned with the state's power to control its own militia as a civilian alternative to a professional standing army. In raising the issue in the Virginia Convention Patrick Henry several times pointed to Art. I, Section 8, Clause 16, as an example of the potentially threatening effect of dual state and congressional jurisdiction over the militia and the possibly dangerous union of the purse and sword vested in Congress. Yet wielding the scholar's power of the ellipse several partisans of gun ownership have edited Henry's remarks about how best to regulate the militia into an inflammatory half-truth "The great object is that every man be armed....Every one who is able may have a gun." The NRA has blown this up into a poster-sized blurb embossed with Patrick Henry's image.

This is not, I repeat NOT, part of Patrick Henry's legacy. Clearly speaking of the problem of militia organization, what he actually said is, "The great object is that every man [of the militia] be armed.--But can the people to afford to pay for double sets of arms &c.? Every one who is able may have a gun. But have we not learned by experience, that necessary as it is to have arms, and though our assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance...."

Not to belabor the argument, but cinch it, I would also remind you that the liberty or death speech itself was in support of a resolution to put the colony in a mode of defense, and the plan proposed by Henry's committee as a result of its passage included a militia law that described in great detail not only the number of men, but the amount of ammunition to be raised by a collective levy, and a very clear procedure for maintaining county and provincial control over the militia system. If Henry's remarks were intended to cast doubt upon the adequacy of a hypothetical Congressional militia law, they only affirmed his commitment to the traditional method of state control over a militia that, far from being a privatized collection of gun-toting individuals, was a community temporarily called to arms and always subservient to public authority and law.

from A PATRICK HENRY ESSAY(No. 5-98) THE POLITICAL LEGACY OF PATRICK HENRY

Even if we are willing to make the quantum leap of saying that Henry and other founders advocated the US Constitution include the concept of gun rights, they made it quite clear that they DID NOT want those rights to be subject to federal interference.


Those who truly support the Constitution are woefully mute about the Cato Institute's use of the Supreme Court to destroy that document in the name of "liberty".  It makes me sick that people are silent when such an organisation seeks to destroy the constitution and its meaning.  Of course, the US governement is the best that money can buy and the Cato institute seeks to make sure that it is a govenment of corporations and for corporations--the people be damned.


Libertarianism is merely facism with a smily face.  A philosophy of slogans, but without substance.  Anarchy of the right.  The founders were loath of democracy, which in their minds had the same meaning as anarchy does today.  Likewise, they would rail against libertarianism if they were here today.


Scalia has no real need for the original meaning of the Constitution if it doesn't meet his political purpose, or else he would have joined in Justice Steven's dissent in DC v. Heller.  In fact, if all the Justices who signed on to that piece of shit blotter called DC v. Heller cared for the Constitution and its meaning, that opinion would have been unanimous.  Scalia, in my opinion, is a political whore who should resign rather than continue trashing the constitution with rubbish which sounds as if it were written by a madman rather than a high court justice (hence I refuse to call him a justice).

Yes, this is contempt of court, but the contempt is well justified and deserved.  It should be accepted as that if he wishes to talk shit and clothe it as legal opinion.


Instead, he deserves the contempt he receives for deigning to put his name to DC v. Heller.  I hope his reputation as a judge will be that of a joke.  He has provided us with poor law. Moreover, he has made a joke of the the institution of the Supreme Court and US justice.  No longer is it equal protection under the law, but those who have money see their way.

Likewise, Roberts has burdened the Second Amendment with baggage, which he said he didn't want to do in the DC v. Heller Oral arguments.  Roberts has proven that he was indeed a poor choice to be chief justice.  But, Dubious Bush was also a poor choice to be president.  The idiots are running the village, but people get the government they deserve in a democracy

As I have said before, this blog began as a joke that my dog had been to court more than Harriet Miers had.  Five supreme court justices may again show that my dog has a better understanding of the law than they do.

17 January 2010

"Gun Right" supporters who are critical of Heller

Since my anger with the DC v. Heller decision is pretty much based on Scalia's playing fast and loose with the law and his alleged theory of Constitutional interpretation, I usually mention these articles in passing. You will find that most people who support Heller were in some way associated with the decision, or just plain ignorant.

http://reason.com/blog/2008/06/26/a-somewhat-skeptical-take-on-h
http://tadventures.org/2009/07/30/2nd-amendment-not-so-fast-my-friends/
http://constitutionalism.blogspot.com/2008/03/fatal-concession-in-dc-v-heller.html
http://www.lewrockwell.com/grigg/grigg-w32.html
http://www.lewrockwell.com/blog/lewrw/archives/022044.html
http://www.lewrockwell.com/blog/lewrw/archives/022039.html
http://www.lewrockwell.com/blog/lewrw/archives/021863.html
http://www.lewrockwell.com/blog/lewrw/archives/021701.html

The final post isn't so much anti-Heller as much as it is also critical of Scalia for failing to follow what he claims is his method for interpreting the Constitution.

http://works.bepress.com/jeffrey_shaman/1/

16 January 2010

Essay question for guncretins/gun loons

Explain the Second Amendment in light of US Constitution Article I, Section 8, Clauses 15 & 16 and Patrick Henry's Speech Below to the Virginia Ratifying Convention, 5 June 1788, Elliot 3:51--52:
A standing army we shall have, also, to execute the execrable commands of tyranny; and how are you to punish them? Will you order them to be punished? Who shall obey these orders? Will your mace-bearer be a match for a disciplined regiment? In what situation are we to be? The clause before you gives a power of direct taxation, unbounded and unlimited, exclusive power of legislation, in all cases whatsoever, for ten miles square, and over all places purchased for the erection of forts, magazines, arsenals, dockyards, &c. What resistance could be made? The attempt would be madness. You will find all the strength of this country in the hands of your enemies; their garrisons will naturally be the strongest places in the country. Your militia is given up to Congress, also, in another part of this plan: they will therefore act as they think proper: all power will be in their own possession. You cannot force them to receive their punishment: of what service would militia be to you, when, most probably, you will not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish them.

Let me here call your attention to that part which gives the Congress power "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." By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither--this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory. Our situation will be deplorable indeed: nor can we ever expect to get this government amended, since I have already shown that a very small minority may prevent it, and that small minority interested in the continuance of the oppression. Will the oppressor let go the oppressed? Was there ever an instance? Can the annals of mankind exhibit one single example where rulers overcharged with power willingly let go the oppressed, though solicited and requested most earnestly? The application for amendments will therefore be fruitless. Sometimes, the oppressed have got loose by one of those bloody struggles that desolate a country; but a willing relinquishment of power is one of those things which human nature never was, nor ever will be, capable of.

Please realise that Henry was specifically addressing Article 1, Section 8, Clause 16 in responding to this question. He directly quotes that passage. I've highlighted that since I am pretty sure you would miss that bit if it weren't in bold, underlined, large print.

Also realise that this passage supports the civic interpretation of the Second Amendment and any essay supporting a right to arms outside of the militia context will have to overcome that hurdle.

OK, if firearms were commonplace, why is Henry worried that the Federal government would fail to arm the militia? Wouldn't that hint at scarcity rather than abundance? Also, by having the issue framed as failing to arm militia rather than confiscation, doesn't that also hint at the issue being provision of arms to the militia?

If you wonder why I find the civic right interpretation far more credible than an individual right outside of the militia context, it is because I have yet to see an explanation of the non-militia right that does not address these historical FACTS.

What really annoys me about gun cretins...

is the fact that they want to come and tell you their point of view, whether or not you want to hear it. And I have heard it all before.

It's pretty obvious that these people have not read or understood what I have written. It doesn't make much sense for me to waste my time repeating myself.

Of course, they will hammer in what they want to say.

I am sorry, but I have examined the subject of gun rights far more extensively than you have and some of the alleged "Second Amendment Scholars" out there have as well. I find that any right to arms outside of the context militia service (that is the body set up under the authority of the US Constitution Article 1, Section 8, Clauses 15 & 16) does not exist in the Second Amendment. Such a right can be found in State Constitutions (yet another reason that "incorporation" is ridiculous), but not in the Federal Constitution.

Additionally, don't come around here spouting shit you obviously haven't read, or understood, since if you did read it, you would have realised it shows that I am correct in my assertions that the Second Amendment is related to militia service (that is the body set up under the authority of the US Constitution Article 1, Section 8, Clauses 15 & 16). Or worse, you mention something that is completely unrelated to the Second Amendment or its history that shows you have a lack of comprehension of the topic.

To be quite honest, any comments the founders made about the "right to keep and bear arms" is most usually tied to a comment about the evils of a standing army. Unless you are seriously suggesting that the US adopt a Swiss style military system, the Second Amendment is pretty much a dead letter. And by that, I mean that you are seriously willing to dedicate your time to training and service in such an institution, you do not have a right to keep and bear arms.

12 January 2010

My Third Amendment rights have been violated!

One of the dumber arguments about the Second Amendment's importance is that it is Second. Using that logic, shouldn't the Third Amendment be pretty significant?

OK, quick, tell me what does the Third Amendment say? It was one of the Complaints that was mentioned in the Declaration of Independence. That should make it significant: shouldn't it???

And back to the "It's third in line" argument. Third place will get you a bronze medal in the Olympics as well as other awards. You can collect if your horse comes in third if you place a "show" bet, but you get paid the "show payoff" even if your horse comes in First.

Well, here it is:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

You can find out how important the founders thought this Amendment was by going here.

They even have where this was mentioned in the Declaration of Independence, which also mentioned the issue of "Standing Armies".

So, the Third Amendment is not unrelated the Second Amendment which was intended to prevent a Federal Standing Army. I guess that means "the Third Amendment protects the Second" to rip off another stupid "gun rights" comment.

And Sorry, Gun Cretins or Gun Loons, but I HAVE read the history of the Second Amendment and related PRIMARY SOURCES to come to the conclusion that the Civic right interpretation is the correct one for the Second Amendment. But that's not my point here.

My point is that up until the 1930s, the Second and Third Amendments had the least Supreme Court Jurisprudence. Screw that, they HAVE the least Supreme Court Jurisprudence with 5 cases for the Second Amendment and NONE for the Third. Mostly because it's hard as heck to misinterpret the Third Amendment (unlike the Second).

Although, it provides a great justification for the "Castle Doctrine" using Story:
§ 1893. This provision speaks for itself. Its plain object is to secure the perfect enjoyment of that great right of the common law, that a man's house shall be his own castle, privileged against all civil and military intrusion. The billetting of soldiers in time of peace upon the people has been a common resort of arbitrary princes, and is full of inconvenience and peril. In the petition of right (3 Charles I.), it was declared by parliament to be a great grievance.
Joseph Story, Commentaries on the Constitution 3:§ 1893

Actually, it's funny to read the primary sources on the Third Amendment, which really shouldn't be neglected: especially if you are going to argue the Civic Right Interpretation of the Second. This is because there IS a reason this is third, and it is related to the Second Amendment in that they both relate to the issue of standing armies and civilian control over the military, which was far more important that personal firearm ownership to the founders.

For more information on the History of the Third Amendment, try visiting:

* Tom W. Bell, The Third Amendment: Forgotten but Not Gone, 2 William & Mary Bill of Rights J. 117 (1993).
* Willaim S. Fields and David T. Hardy, The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History, 35 Am. J. Legal Hist. 393 (1991).

I think you will find an aversion to the maintenance of Standing Armies and civilian control over the military are common threads in Anglo-American history along with the history of other British Colonies. As other former British Colonies show, there was no common law concept of "gun rights" outside of militia duty.

Actually, it has been pointed out to me that the Soldiers and Sailors Civil Relief Act (SSCRA) gives service members certain special rights to terminate leases without penalty as well as to avoid eviction. Qualifying service members can also have their mortgages modified to cap the interest at 6%. The SSCRA makes no provision for just compensation to be made to the private parties who suffer the costs of its provisions; effectively, the owners of the affected properties have to bear all the costs.

So, join in the efforts of the Third Amendment Center in protecting this most important of rights! Fight the Soldiers and Sailors Civil Relief Act (SSCRA)!

11 January 2010

Second Amendment--You go girl!


Thanks to MikeB for pointing out that Lisa Madigan is going to not play dead the way Walter Dellinger did (Dave Dellinger was one of the Chicago Seven). As I said in my comment to Mike's post, I point out the irony that the Second Amendment was to protect the States from Federal interference every chance I can get

I am glad that someone is willing to argue proper history in this matter and it's Illinois' Attorney General Lisa Madigan McDonald. Dellinger blew it in the Heller oral arguments because he forgot that precedent was on his side.

Yes, the Second Amendment was to protect against Federal Tyranny: in the form of an overblown military budget (why does no one seem to talk about the Standing Army issue?).

Yes, the Founders wanted local legislative power to control their own affairs. That's what the no taxation without representation bit was about.

DC was screwed by the Supremes.

The next question: how do you argue with historically ignorant justices?

I wish you all the best! Intelligent Women are soooo Sexy!

The Illinois AG's brief can be read here.

21 December 2009

The Second Amendment in Art!



This is Charles Henry Granger's Muster Day which is in the National Gallery in Washington, DC. There is another version of this at the located at the Pennsylvania Academy of Fine Arts in Philadelphia.

Many able-bodied citizen between the ages of eighteen and forty-five were a members of the militia under the militia act of 1792. The annual muster day accomplished actual enrollment of the members into their units.

Local companies of militia would gather annually for parade and inspection at their regiment's muster day which often involved a thousand or more men from half a dozen towns. Food and alcohol vendors, showmen, fiddlers, auctioneers, charlatans, gamblers, and several thousand spectators turned these gatherings into regional festivals in an era of few such diversions. Muster days were structured social events in a regimental towns in ways not duplicated since. By 1830, muster days were under attack from those who resented the required participation. They were joined by temperance advocates, who objected to the considerable public drunkenness attending each muster, and later by critics of the Mexican War, who claimed that the existence of a peace-time militia had in fact led to this conflict.

"Their general good conduct on the field was creditable to officers and soldiers – with the exception of a few, (such as never know how to leave off when they have done), who fired promiscuously about the plain a long time after they had been dismissed, a practice always disreputable to good soldiers and the officers to whom they belong. the occasion attracted an unusual assemblage of spectators, pedlers, rumsellers, rumdrinkers and gamblers; whose noise, ribaldry, intoxication, and violation of the laws in the face and eyes of the authorities, was disgraceful to the place, to the occasion, to those specially engaged in it, and to all who looked on and tolerated it. We leave it to the people to judge whether there be more good than evil derived from ‘making a muster.’" --Report of the Amherst Muster Day from The Farmers’ Cabinet, 1834


Exemptions to Militia service were:
Vice President, federal judicial and executive officers, congressmen and congressional officers, custom-house officers and clerks, post-officers and postal stage drivers, ferrymen on post roads, export inspectors, pilots, merchant mariners, and people exempted under the laws of their states"notwithstanding their being above the age of eighteen and under the age of forty-five years."


Or as the quote goes: "I ask, sir, what is the militia? It is the whole people, except for a few public officials."
— George Mason, in Debates in Virginia Convention on Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788 (that should be quite a few public officials).

So, militia service was NOT universal. In fact, Men actively sought exemption from militia service. This was a reason for the carnival atmosphere at muster days. Again from Story:
And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

To be quite honest, people had jobs and other things to do than militia service and sought exemption from that duty. The muster day had a carneval feeling because it made the obligation less painful. Still there was an obligation to perform militia service. Thie was compulsory military duty which required time away from your work.

Now, they demand the right without the obligation encumbent to that right.

Civic v. Individual right: a cost benefit analysis

As we well know, the Civic right interpretation states that the Second Amendment guarantee of a "right to keep and bear arms" is not divorcable from the "well-regulated militia". In other words, the Second Amendment guarantees the institution set up under Article I, Section 8, Clauses 15 and 16:
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;

The individual right interpretation holds that the right includes private purposes outside of the "Well-Regulated Militia": such as self-defence and hunting. The text of the Second Amendment offers no support for these purposes:
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.

It is silent on personal gun rights, yet it does mention the necessity of a well regulated militia for the security of a free state.

Inclusio unius est exclusio alterius. In other words, concepts not mentioned in legislation cannot be inferred. therefore, one cannot assume that self-defence and hunting are covered by this right. Neither should one rely on them being covered by this right.

But, my point is not to argue this based upon text, but to argue it based upon utility of the right.

The concept of the militia is to create a citizen's defence force. Or to quote Joseph Story:
The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people.

This is not some hypothetical "unorganised militia", but, again in the Words of Joseph Story:
And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

The militia has an element of compulsion and duty to it. It is an organisation that requires civic mindedness. It is a system which demands discipline and submission to the group. It isn't doing whatever the fuck you please: fuck you, jack, I'm all right.

The individual right holds these concepts anathema. It demands the right without consideration of its costs to society. In fact, it is based upon a concept which runs contrary to the constitution: the insurrection theory. How can an institution which was created to "suppress Insurrections" foment them?

William Rawle succintly mentions something which is lost in this debate by those who demand the right without obligation to society:
This right ought not, however, in any government, to be abused to the disturbance of the public peace.

An assemblage of persons with arms, for an unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace. If he refused he would be liable to imprisonment.

There was a common belief that arms were to be used for society's benefit to not its detriment. Or in the words of the "individual right friendly" Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents
7. “That the people have a right to bear arms for the defense of themselves and their own State, or theUnited 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; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by the civil powers.”"The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents (December 18, 1787), reprinted in Pennsylvania and the Federal Constitution, 1787-1788, p. 422

This text places danger of public injury or harm as a reason for disarming the people despite its "individual right" tone. This is because bearing arms is not to be used for harm, but for civic benefit.

In addition, the cost of the individual right as a barrier to firearms regulation makes it into a mockery. This interpretation of the right is not a benefit to society, but a detriment. These are the costs related to medical care, mental health, emergency transport, police, criminal justice and lost taxes that result from the misuse of firearms.

The right, according to Story was to free society of the enormous military expenditure and prevent the ancilary usupation of freedom that accompanies such a build up. Or to Quote Eisenhower's Farewell Address to the Nation:
In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.

The purpose of the Second Amendment is civic in nature, not individual. It is to protect society, not to protect the individual. It is to protect us from the military-industrial complex usurping our liberties. It has obligations and duties encumbent upon this right which are owed to society.

It was not to burden society with crime and injury due to misuse of firearms by those who keep them outside of the militia duty. It is to ensure the security of a free state, not "to be abused to the disturbance of the public peace." "Real danger of public injury from individuals" is a reason to abridge this right for individuals.

The detriment to society of the "individual right" misinterpretation is far too costly a mistake to make.

01 December 2009

National Rifle Association Has Become a National Disgrace

From The 'Skeeter Bites Report and I couldn't have put it better! I found this through Buzzflash's piece from Buzzflash's piece on the NRA.

Monday, May 07, 2007
National Rifle Association Has Become a National Disgrace

The Nation's Largest Gun Lobby Reveals Itself as an Organization of Second-Amendment Extremists Putting 'Right to Bear Arms' Ahead of Laws Protecting Americans From Gun-Wielding Terrorists

By Skeeter Sanders

When it was founded in 1871, the mission of the National Rifle Association was the promotion of marksmanship, firearm safety and the protection of hunting and personal-protection firearm rights in the United States, in accordance with the Second Amendment of the U.S Constitution.

But in the last 30 years, the NRA has been transformed into a monster its founders would not recognize. Today's NRA is an organization whose leadership has turned the Second Amendment on its head, more concerned about preserving the right to bear arms than in preserving the safety of the American people.

The NRA leadership's absolutist position on the Second Amendment has driven the nation's oldest civil-liberties organization over the edge into outright extremism, insisting that Americans' right to bear arms includes the right to acquire military-grade weapons of war that were never designed for civilians to use in peacetime.

By taking such an extremist position on the Second Amendment, the NRA poses as great a threat to the nation's security as al-Qaida and other terrorists.

At the same time, NRA has alienated so many law-abiding gun owners with its opposition to restrictions on military-grade weapons that a rival organization was founded in 2005 as an advocacy group that presents itself as "a force of moderation and common sense" in the gun-control debate.

NRA's Successful Repeal of Assault Weapons Ban Boomerangs With Virginia Tech Massacre

In 2004, the NRA successfully lobbied a Republican-controlled Congress to let a 1994 federal law banning certain types of military-grade assault weapons and ammunition expire. That lobbying effort has now come back to haunt the NRA with the massacre last month at Virginia Polytechnic Institute.

Cho Seung-Hui, the Virginia Tech gunman who killed 32 people and wounded 24 others before killing himself, used a Glock 19 semi-automatic pistol with a 15-round ammunition clip. Both the gun and the clip -- which were designed specifically for use by the military and law-enforcement agencies -- were banned for civilian use under the now-defunct 1994 law.

Had that law remained in place -- combined with an existing statute that bans gun sales to persons deemed a danger to themselves and to others -- Cho might not have been able to pull off his rampage.

The fact that Cho used guns and ammunition that were previously banned under the 1994 law -- and that the massacre took place in the NRA's home state of Virginia (NRA headquarters are in the Washington suburb of Fairfax) -- has left the nation's most powerful gun lobbying group uncharacteristically speechless. To date, it has refused to comment on the massacre beyond extending its condolences to the friends and relatives of Cho's victims.

The NRA Wasn't Always the Way It Is Now

The NRA was founded in New York City in 1871 by two U.S. Army officers, Colonel William Church and General George Wingate, who were upset with the poor marksmanship of their troops. In a magazine editorial written by Church, he stated their primary goal was "providing firearms training and encouraging interest in the shooting sports."

From 1873 to 1892, the NRA operated a rifle range at what is now the Creedmoor State Psychiatric Hospital in nearby Queens Village, New York, where members of the National Guard were trained and international competitions were held.

Civil War General Ambrose Burnside, a former governor of Rhode Island who also represented the state in the U.S. Senate, became the NRA's founding president. Other Union generals, including Phillip Sheridan, Winfield Hancock and Ulysses S. Grant (who would later win the White House) also served as NRA president at various times.

In 1934, the NRA formed its "Legislative Affairs Division." While it did not directly lobby Congress until 1975, the NRA did mail out legislative analyses and facts to its members, so that they could lobby Congress themselves individually.

During World War II, the NRA reloaded ammunition used for guarding factories involved in wartime production and sought to help arm Britain against potential invasion with the collection of over 7,000 firearms for that country's defense.

How The NRA Lost Its Way -- And Became a Political and Ideological Monster

In May 1977, the NRA began a rightward shift after controversy erupted within the organization over the possibility of banning cheap, .22-caliber handguns known as "Saturday night specials." These pistols were the weapons of choice used by criminals in what was then the nation's worst wave of violent street crime since the prohibition era of the 1920s that saw the rise of organized crime.

At their annual convention in Cincinnati that year, more than 2,000 NRA members revolted against the organization's leadership after Harlon Carter, a member of the NRA's executive council, was fired by the council from his post as political action director for his fiercely hard-line opposition to the handgun ban.

In what came to be known as the "Cincinnati Revolt," the rebellious delegates retaliated against the council and elected Carter NRA president. In his acceptance speech, Carter told the delegates, "Beginning in this place and at this hour, this period in NRA history [internal division over gun-control laws] is finished. There will be no more civil war in the National Rifle Association!"

Since its 1977 takeover by anti-gun control hard-liners, the NRA has consistently opposed any proposed legislation that purports to limit access to guns by law-abiding citizens, although it does support some laws restricting access to guns by criminals.

Yet its lobbying has included opposition to common-sense legislation aimed at keeping weapons of war out of the hands of civilians. What, for example, does a hunter need with a Kalashnikov AK-47 rifle that was originally designed as a combat weapon for the Soviet Red Army? What does a sport shooter need with an M-16 rifle that was designed as a combat weapon for the U.S. Army?

The hard-liners' takeover also shifted the NRA away from its roots as an organization for hunters and sport shooters, resulting in the ouster of at least one executive council member who said he was told that "this is a single-purpose organization" after the ousted council member expressed support for strong wilderness preservation.

An Obscene Misinterpretation of the Second Amendment

In its lobbying for the rights of gun owners, the NRA asserts that the Second Amendment guarantees the right of individuals to own and use guns. While the Second Amendment does state that "the right of the People to keep and bear arms shall not be infringed," the NRA insists that the Second Amendment's reference to "a well-regulated militia, being necessary to the security of a free State" means that the American people at large comprise the "militia."

It is true that this country did not have a permanent, standing army at the time of its founding in 1776 (It took the ratification of the Constitution in 1789 to authorize Congress to raise one), but it is an obscenity to this blogger that the NRA would interpret the Second Amendment to count the general public as being part of that "well-regulated militia."

Quite the contrary, the intent of the Founding Fathers when they wrote the Second Amendment is quite clear: In the absence of "a well-regulated militia," it was necessary for the citizens of the newly-created United States to be armed in order to maintain the security of the new country.

We certainly have a "well-regulated militia" now -- from local, state and federal law-enforcement agencies to the U.S. military. Indeed, we have the most highly organized and well-regulated law-enforcement agencies in the world. We have most highly organized, well-regulated -- and powerful -- military in the world.

That the NRA continues to view the American public at large as part of a "well-regulated militia" is an obscenely extremist interpretation of the Second Amendment. It is an interpretation rooted in a "Wild West" mentality that has no place in 21st-century America.

And it is an interpretation that poses a clear and present danger to the safety of the American people. The idea of civilians today possessing military weapons designed to wage war and wreak maximum death and destruction is absolutely mind-boggling. Yet this is what today's NRA lobbies for. It is beyond an obscenity; it is out-and-out insanity.

The NRA's Latest Outrage: Lobbying Against Ban on Gun Sales to Suspected Terrorists

Now, less than a month after the Virginia Tech shootings, the NRA has gone off the deep end yet again. It's urging the Bush administration to withdraw its support of a bill that would prohibit suspected terrorists from buying firearms.

Strongly backed by the Justice Department, the measure, introduced last week by Senator Frank Lautenberg (D-New Jersey), would authorize the attorney general to use his discretion to block gun sales, licenses or permits to terror suspects.

NRA executive director Chris Cox, in a letter to Attorney General Alberto Gonzales, wrote last week that the Lautenberg bill "would allow arbitrary denial of Second Amendment rights based on mere 'suspicions' of a terrorist threat."

Given the many abuses of power committed by Gonzales since he became attorney general -- particularly his glaring violations of the Fourth Amendment in spying on Americans without constitutionally-required court warrants -- Cox's beef, at first glance, appears to be quite legitimate.

But on closer examination, Lautenberg's bill makes sense -- and the senator obviously had future attorneys general in mind when he wrote it. A 2005 study by the Government Accountability Office found that 35 of 44 firearm purchase attempts over a five-month period made by known or suspected terrorists were approved by the federal law-enforcement officials.

Current law requires gun dealers to conduct a criminal background check and deny sales if a gun purchaser falls under a specified prohibition, including a felony conviction, domestic abuse conviction or illegal immigration. But there is no legal basis to deny a sale if a purchaser is on a terrorism watch list.

Admittedly, the terrorism watch list being maintained by the Bush administration is top secret -- and undoubtedly contains many glaring errors of fact. "As many of our friends in law enforcement have rightly pointed out, the word 'suspect' has no legal meaning, particularly when it comes to denying constitutional liberties," Cox wrote.

But for people on the terror watch list to be allowed to purchase firearms -- even if they're on the watch list erroneously -- places too high a risk to our nation's security. There's simply no way to know with absolute certainty if such a purchaser has plans to pull off another 9/11-style terrorist attack, or worse.

And what about psychos like Cho Seung-Hui or the Columbine High School killers, Eric Harris and Dylan Klebold?

At Last, A 'Common-Sense' Alternative to the NRA

The NRA's Second Amendment extremism has alienated so many law-abiding gun owners that there is now a rival organization -- the American Hunters and Shooters Association -- that aims to serve as the advocacy group for the hunters and sport shooters that the NRA used to be, but isn't anymore.

Founded in 2005, the AHSA's mission is to "restore pride in America's hunting and shooting heritage," according to the AHSA's Web site. "The AHSA vigorously defends the constitutional right to keep and bear arms, promotes safe and responsible gun use, and supports reasonable public policies, so that all Americans can enjoy the benefits of this crucial and historic liberty."

In a slap at the NRA, the AHSA argues that, "No constitutional right to bear arms exists for criminals, terrorists, or others who seek to abuse the very freedoms our Constitution guarantees. The law is crystal clear on this point: reasonable laws designed to keep guns out of the wrong hands are entirely consistent with the Second Amendment."

While the AHSA says that its legislative policy "will always promote the common sense interests of hunters and shooters, AHSA also will always give top priority to the basic safety and security interests of our communities."

Striking a Balance Between Firearms Rights and Public Safety

The AHSA "supports rational, deliberative firearms policy crafted to protect our sport and our communities." the group's mission statement says. "Moreover, the AHSA strongly opposes legislative proposals that violate Second Amendment rights by impeding access to firearms by law-abiding citizens.

"By faithful adherence to basic Second Amendment principles, while balancing the needs of our sport and the needs of our community, the AHSA will promote rational and practical firearms policies that serve to bring Americans together," the statement says.

Ray Schoenke, a former Washington Redskins football star, is the AHSA's founding president. Bob Ricker, a former NRA lobbyist, is the AHSA's executive director. Jody Powell, former White House press secretary under President Jimmy Carter, is a co-chairman of the group's advisory board.

With Its Membership Declining, the NRA 'Freaks Out' Over the AHSA

Not surprisingly, the NRA has gone ballistic with a vitriolic attack against the AHSA, pointing out that John Rosenthal, president of the AHSA's charitible arm, the AHSA Foundation, "is one of the founders of the Massachusetts-based group Stop Handgun Violence, a group that has been a major force in passing some of the most Draconian state gun laws in the nation."

The NRA considers Ricker a traitor, blasting him as "a former NRA employee who switched sides and has actively worked for gun control groups for many years now."

"With leadership like that, there is no doubt about the true goals of AHSA," the NRA asserts. "They are trying to fool hunters and gun owners with a soft sell ... while working behind the scenes to end the sport that we all love."

Such vitriol by the NRA only serves to show just how paranoid it has become -- and how out of touch with law-abiding gun owners it is today. Indeed, NRA membership has fallen from a peak of 8.2 million members in 1993 to 4.3 million members today.

Among the millions of NRA members who quit include former President George H.W. Bush, who resigned his lifetime membership in 1994 in protest of NRA President Wayne LaPierre's attack on agents of the federal Bureau of Alcohol, Tobacco and Firearms as "jack-booted thugs" following the violent incidents involving BATF agents at Waco and Ruby Ridge.

The NRA has even seen internal dissent from its membership, including a prolonged series of verbal attacks and campaigns initiated by Neal Knox, a former NRA vice president, who unsuccessfully attempted to depose both LaPierre and Tanya Metaska, the former executive director of the NRA's Institute for Legislative Action, in leadership elections during the late 1990s.

Whither the NRA's Future?

In the wake of the Virginia Tech massacre, the NRA is showing signs that its influence in Washington may be on the decline. Relations between the NRA and the Bush administration already appear to be fraying over the administration's support for the Lautenberg bill on gun sales to terrorists.

The NRA's continued public silence on the massacre itself has raised eyebrows on both sides of the gun-control debate -- and has drawn ire from relatives of the 32 people who lost their lives in the shootings.

And among the broader conservative community, the NRA has recently come under sharp criticism for endorsing and supporting candidates who, while staunch defenders of gun rights, are generally perceived as being liberal on several other hot-button social issues, such as amnesty for illegal immigrants.

Is America at last coming to a consensus that the NRA has lost its way and has become an impediment to the delicate balance between preservation of the Second Amendment and preservation of Americans' peace and security?

This blogger certainly hopes so. Only time will tell.

Unfortunately, this blogger sees that the media is too scared and controled by the gun lobby to take them on.

28 November 2009

Nanny State State indeed

I like to point out that the Second Amendment was supposed to protect us from Standing Armies by ensuring a Swiss Style military; however, it has been perverted beyond recognition.

How many Second Amendment advocates would be willing to give up their time for the required military drill...

And lifestyle! Somehow in amongst all the talk about the Swiss military and its guns, people seem to have missed that the Swiss military is under the Federal Department of Defence, Civil Protection, and Sport! As their website says: We provide security and physical activity!

It's not just about shooting guns! Federal Office of Sports (FOSPO), responsible for sport policy, the National Youth Sports Centre Tenero and the Youth and Sport organisation. This is from Federal Office of Sports (FOSPO)
The Federal Office of Sport FOSPO in Magglingen promotes sport and physical exercise in Switzerland and its positive, useful and necessary role in society. It is a centre for services, education and training for Swiss sport and a sport scientific centre of excellence. Furthermore it establishes optimum conditions for sports facilities of national importance.

And they talk about the Nanny State! What would these out of shape gun cretins do if they were told to exercise!?!?!?!? They bitch about national health care.

Ha!

10 November 2009

The Army Can exercise it's Second Amendment right???

If you don't see how stupid this comment is, then you haven't read the actual primary source documents regarding the Second Amendment. Neither have you read or comprehended my posts where I discuss this. That's why you can come here and spout crap about me "not knowing my stuff".

Yeah, right, asshole.

The Second Amendment talks about a well regulated militia, which is a vastly different thing from the Army.

Army--Militia: They are two different institutions.

Again, I repeat that you don't understand the concept of the Second Amendment if you don't see how stupid that comment is.

This is why it doesn't need to be repealed, it needs to be understood.

“Whenever governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.”-Rep. Elbridge Gerry of Massachusetts, 1789

09 November 2009

When we hang the capitalists, they will sell us the rope.

I have to admit being flooded with outrage about the Fort Hood shootings. There are loads of reasons for this.

First off, that it could have been allowed to happen. Even more so when you consider that the ridiculous access to firearms is done under the guise of the Second Amendment. This is a text that includes the words:

necessary to the security of a free State

Why has that gottten lost in the debate? I hear all sorts of stupid shit about "fighting tyranny", "rights", "Liberty", and "freedom", but I never hear about the responsibility and obligation that is incumbent upon this right.

That is service in the militia. Not some bullshit "unorganised" militia, which is the quivalent of having a draft card, but actually serving in a legally organised militia unit.

There has been at least two conspiracies to shoot up military bases in the US: Fort Dix and Quantico, VA. U.S. domestic military bases are still "wide open to attack."

Charles Faddis, a 20-year CIA counterterrorism veteran, says:
"If you drive around the United States today, other than security measures in place at airports, you will see very little has changed in the last eight years," said Faddis, who has visited several U.S. military bases in the past year while researching an upcoming book on homeland security, "Willful Neglect".

"We remain wide open to attack. That is true in the nation as a whole, and it is true on military bases as well," said Faddis, 51, who retired in 2008 as chief of the CIA's weapons of mass destruction terrorism unit. Before the 2003 invasion of Iraq, he led a counterterrorism team into northern Iraq in search of an al Qaeda base. He has authored two withering critiques of his former employer, most recently "Beyond Repair: The Decline and Fall of the CIA", published last month.

“They know how to secure an installation,” says Faddis. “They are not failing to do so because they do not know what to do. They are failing to do so, because somehow, some way, we have convinced ourselves that an attack cannot happen here.”

"You may have to show a photo ID at some locations, but even that is not always true. Even if you have to show an ID, a civilian driver's license will often suffice," he said. "Most bases remain open to civilian visitors with even the most cursory of explanations for why they are coming on post. "

Even the Fort Meade, Maryland, headquarters for both the U.S. Army Intelligence and Security Command and the super-sensitive National Security Agency, has porous security, said Faddis, who has visited the sprawling post within the last few weeks. "There are no barriers (at the gate)," he said. "If you want to stop, you do so. If you want to go by the gate and onto the base at 60 miles an hour, you do so.

"Once you are on base," the former CIA official continued, "you go wherever you want. There are no armed guards. There are no checkpoints. There is no visible security. Even entering buildings, the only kind of security you are going to see is the kind designed to deter unauthorized personnel who are trying to sneak in, steal secrets. and sneak back out.


Nothing has been done to restrict access to firearms either. One can walk in to a gun store with a valid drivers licence and walk out with enough firepower to cause serious mayhem. Hey, you can buy enough guns and ammo to start WWIII. There have been mass shootings in the United States for at least 30 year, yet gun laws are becoming laxer, not tighter. The assault weapons ban was crap, but somewhat useful. Even then, it was allowed to lapse and newly made assault weapons can once again be bought,

So, why the fuck are people who should not have access to firearms still buying them legally? Or even acquiring them easily. I mean we lock our houses and cars, but we leave firearms wide open.

The next thing that pisses me off is that people are pointing fingers at everything except what allowed this to happen.

The gun.

Yeah, sure guns are tools. They are highly effective tools for killing. They work quite quickly as the Fort Hood shootings show.

Don't give me any crap about an Army Base being a gun free zone since there was an armed guard who returned fire. They were guns on the base which could have been used to fend off the attack, but a semi-automatic pistol can has a high rate of fire. Unfortunately, people, especially civilians, don't understand that an incident like this can happen quite quickly and result in a high body count before anybody can do anything.

The FN 5.7 holds 20 rounds. In a crowded room it would be easy beyond belief to hit 43 people in a matter of a few SECONDS, say nothing of minutes.

Are you going to tell me that US soldiers are cowards and didn't resist in any way? They just let this psychotic asshole shoot up the military processing center. I don't believe that.

Not to mention someone did return fire, but by that point, the body count had racked up.

Of couse, in this outrage, we also see a backlash against muslims, which also doesn't make sense. The Fort Hood shooter could have been screaming "Kill for Cthulhu". He was a fucking whack job.

His religious pseudofundamentalism is a symptom of his mental illness.

As Zirgar said, do we point out the people who kill abortion doctors are christians? Likewise, do we point out the religion of other mass shooters? How about the asshole who shot up the Holocaust museum, what religion was he? How about the dickhead who gunned down 3 Pittsburgh Officers, what religion was he? How about the Jerkoff who shot up an LA Fitness Centre in Pittsburgh? What religion was he?

No, only this asshole because he is a "muslim".

If this is terrorism, then it is because someone with a firearms shoots up a place we would like to think is secure. But we would like to think streets, shopping malls, supermarkets, schools, universities, fitness centres, and so on are secure. Terrorism is creating a feeling of terror and panic, which mass shootings do create.

The United States has to become like Northern Ireland during the troubles where security checkpoints were ubiquitous and frequent if people are going to demand more guns without restrictions. Even with registration, there should be checkpoints.

It is completely moronic to give terrorists the tools they need to accompllish their goals. Those who block any restrictions, especially if they do it in the name of "fighing tyranny" are complicit in this act.

After all, who defines tyranny? Is it a small minority who feel that they have been wronged? Then why aren't they praising the Fort Hood shooter for standing up against what he saw as tyranny?

No, because that it complete bullshit. So, cut the crap with the Second Amendment being for "fighting tyranny" and "freedom" because somehow our freedom of movement and right to live safely will have to be curtailed. Even if that destruction of liberty is from sheer paralysis about leaving the safety of your own home.

As for the Second Amendment, I have said more than once that it is archaic and its meaning has been lost with the passing of time. The founders would be shaking their heads in disbelief at things which are being said and done regarding "the Second Amendment right". Especially when people say that the Army should be able to "exercise its Second Amendment rights".

No, too much emphasis has been placed upon the phrase "right to keep and bear arms" with neglect of the concept of the "Security of the Free State". The Supreme Court wrote those words out of the Amendment in its DC v. Heller decision, but it is time to revive that concept.

The "right to keep and bear arms" is related to the "Security of the Free State" and those who would allow terrorists, foreign or domestic, access to arms are guilty of treason.

So, where the fuck is the outrage that this shit can happen and why isn't it directed at the ease it can happen?

25 October 2009

Sotomayor, Alito, and Gun Control

I have to admit that it is interesting seeing the kerfuffle around Sonia Sotomayor's position on the Second Amendment. It means absolutely zip as my early posts regarding Samuel Alito show

The real point is that in conversations and my early blogs, I pointed out that Justice Alito was on the three judge panel that decided U.S. v. Rybar,103 F.3d 273 (3d Cir. 1996). That was the case which earned him the nickname "machinegun Sammy". But, I have been pointing out as frequently as I can that this case addressed the personal right interpretation of the Second Amendment which was raised as a defence by Rybar. The Rybar court held that the Second Amendment was a collective right, which means that it is to ensure the efficacy of the Militia institution set up under Article I, Section 8.

Justice Alito did dissent, but he did so in a manner similar to Justice Kennedy did in US v Lopez, 514 U.S. 549 (1995) which was to say that he would have found the machinegun statute constitutional had Congress provided a finding that these items were in interstate commerce.

Now, I have raised the question whether this means that Justice Alito follows the collective right interpretation of the Second Amendment whenever I can. I am also curious if stare decisis precludes Justice Alito from taking the individual right interpretation, which most commentators are not sure. I would like to think that it does. Or, failing that, I would like to think that Justice Alito is what I consider a true conservative rather than the idiots who call themselves conservative these days. This means that Justice Alito knows the accepted judicial interpretation of the Second Amendment, which is that it is to ensure the efficacy of the militia set up under Article I, Section 8 and has nothing to do with self-defence, hunting, or shooting sports in general.


No, had Justice Alito stuck by his position in U.S. vs. Rybar, 103 F.3d 273 (3rd Cir. 1996), we would have seen a drastically different outcome to DC v. Heller.

The real point her is that Justice Sotomayor can vote whatever position her heart desires, which is contrary to proper Judicial practice. But, hey, they started it first!

As I keep saying, I am not sure what trend is starting with DC v.Heller,but I don't like it.

23 October 2009

Collective right new???

This decision was from 1942, which would put it well before 1970 and says that the Second Amendment: was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power.

That sounds pretty "collective" to me. Not only that it's in pretty clear language that it was not adopted with individual rights in mind.

From U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942)

The Second Amendment to the Constitution of the United States provides: "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 appellant's contention is that if the statute under which this prosecution was brought is to be applied to a weapon of the type he had in his possession, then the statute violates the Second Amendment.

It is abundantly clear both from the discussions of this amendment contemporaneous with its proposal and adoption and those of learned writers since that this amendment, unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power. The experiences in England under James II of an armed royal force quartered upon a defenseless citizenry was fresh in the minds of the Colonists. They wanted no repetition of that experience in their newly formed government. The almost uniform course of decision in this country, where provisions similar in language are found in many of the State Constitutions, bears out this concept of the constitutional guarantee. A notable instance is the refusal to extend its application to weapons thought incapable of military use.

The contention of the appellant in this case could, we think, be denied without more under the authority of United States v. Miller, 1939, 307 U.S. 174, 59 S. Ct. 816, 83 L.Ed. 1206. This was a prosecution under the National Firearms Act of 1934 and the weapon, the possession of which had occasioned the prosecution of the accused, was a shotgun of less than 18 inch barrel. The Court said that in the absence of evidence tending to show that possession of such a gun at the time has some reasonable relationship to the preservation or efficiency of a well regulated militia, it could not be said that the Second Amendment guarantees the right to keep such an instrument. The appellant here having failed to show such a relationship, the same thing may be said as applied to the pistol found in his possession. It is not material on this point that the 1934 statute was bottomed on the taxing power while the statute in question here was based on a regulation of interstate commerce.

But, further, the same result is definitely indicated on a broader ground and on this we should prefer to rest the matter. Weapon bearing was never treated as anything like an absolute right by the common law. It was regulated by statute as to time and place as far back as the Statute of Northampton in 1328 and on many occasions since. The decisions under the State Constitutions show the upholding of regulations prohibiting the carrying of concealed weapons, prohibiting persons from going armed in certain public places and other restrictions, in the nature of police regulations, but which do not go so far as substantially to interfere with the public interest protected by the constitutional mandates. The Federal statute here involved is one of that general type. One could hardly argue seriously that a limitation upon the privilege of possessing weapons was unconstitutional when applied to a mental patient of the maniac type. The same would be true if the possessor were a child of immature years. In the situation at bar Congress has prohibited the receipt of weapons from interstate transactions by persons who have previously, by due process of law, been shown to be aggressors against society. Such a classification is entirely reasonable and does not (p.267)infringe upon the preservation of the well regulated militia protected by the Second Amendment.

20 October 2009

Collective or Individual?

Quick Answer for Sevesteen: gun rights are illusory in common law.

I have begun to dislike the terms "collective" and "individual" right in relation to the Second Amendment. First off, neither term really conveys what the right actually encompasses (in legal terms--it's scope). Saying that the right is collective and belongs to the States isn't really helpful. The right was intended to ensure that the Federal Government would not abuse its power to arm the militia under Article I, Section 8, Clause 16 to the detriment of the militia.

It shouldn't come as a surprise that this subject is hard for the booboisie to comprehend since even Supreme Court Justices have difficulty comprehending that there was a difference between civic and private purposes. I mean the booboisie can't comprehend comics, let alone complicated ideas. Also, “collective right” or “individual right” doesn't really define what exactly was being protected. The State's right to have militias? A personal right to own firearms outside of militia service?

That's why the question that the Supreme Court allegedly was considering in Heller was:
Whether the following provisions—D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02—violated the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

Justice Stevens pointed out that:
The question presented by this case is not whether the Second Amendment protects a “collective right” or an“individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case.
Justice Stevens's Heller Dissent p.1

This question was answered by US v. Miller, 307 U.S. 174 (1939) as:
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.

I paraphrase the dicta to make it comprehensible to modern minds as:
The entire text of the Second Amendment was made with the obvious purpose to assure the continuation and render possible the effectiveness of the forces created under authority of Article 1, Section 8, Clause 16. It must be interpreted and applied in consideration of that purpose. Without evidence that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' is reasonably related 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 of the body organised under Article 1, Section 8, Clause 16 of the Constitution or that its use and possession would contribute to the common defense.

Despite what various sides say about the holding taking it from various portions of the early paragraphs. The actual holding is that: "We are unable to accept the conclusion of the court below and the challenged judgment must be reversed (i.e., that the National Firearms Act violates the Second Amendment). The cause will be remanded for further proceedings."

Although it seems from the dicta that the Second Amendment right is best defined as a civic right in that it requires a "reasonable relationship to the preservation or efficiency of a well regulated militia" at least according to Miller, but not according to Heller which choose to ignore the method and precedent of Miller.

Although, As I read Miller, the proper answer to the Question in Heller was "no" for a multitude of reasons. The Heller court had other dilatory tactics if it couldn't give the proper answer, but I digress...

The Founders came from the common law tradition and didn't totally reinvent the wheel when it came to the nascent US legal system. That means the law of the United States was originally largely derived from the common law system of English law, at both the federal and state levels. Weapons related to militia service enjoyed greater protection and were not subject to the same level of regulation as personal arms in the early republic. The right to keep arms for civilian purposes was not removed from the sphere of the State's legislative power, it was subject to the full scope of the state's police powers.

As anyone familiar with Common law developments regarding gun regulation will tell you, there are no "gun rights" in other common law jurisdictions even though they all have the militia tradition to some extent or another (E.g., Australia, Canada, and the United Kingdom). Other Common law based jurisdictions are quick to ban personal firearm ownership after gun massacres.

For example, when Martin Bryant killed 35 people and wounded 21 others in Port Arthur, Tasmania. Both federal and state governments, some of which (notably Tasmania itself and Queensland) were opposed to firearm control, quickly took action to restrict the availability of firearms. It should be noted that the Tasmanian state government initially attempted to ignore this directive, but was subsequently threatened with a number of penalties from the federal government. Though this resulted in stirring controversy, most Government opposition to the new laws was silenced by mounting public opinion in the wake of the shootings. Under federal government co-ordination all states and territories of Australia banned and heavily restricted the legal ownership and use of self-loading rifles, self-loading and pump-action shotguns, together with considerable tightening of other gun laws.

When Michael Robert Ryan, armed with two semi-automatic rifles and a handgun, shot and killed sixteen people including his mother, and wounded fifteen others, then fatally shot himself in Hungerford, England. The massacre led to the Firearms (Amendment) Act 1988, which banned the ownership of semi-automatic centre-fire rifles and restricted the use of shotguns with a magazine capacity of more than two rounds. The Hungerford Report had demonstrated that Ryan's collection of weapons was legally licensed.

The Dublane Massacre where Sixteen children and one adult were killed led to the Firearms (Amendment) (No. 2) Act 1997 being passed. This means that as of 1997 handguns have been almost completely banned for private ownership in Great Britain. Exceptions to the ban include muzzle-loading "blackpowder" guns, pistols produced before 1917, pistols of historical interest (such as pistols used in notable crimes, rare prototypes, unusual serial numbers and so on), starting pistols, pistols that are of particular aesthetic interest (such as engraved or jewelled guns) and shot pistols for pest control. Under certain circumstances, individuals may be issued a PPW (Personal Protection Weapon) licence. Even the UK's Olympic shooters fall under this ban; shooters can only train in Northern Ireland, the Channel Islands, the Isle of Man, or abroad.

Compare the reactions from Australia and Great Britain to the Circle Jerks that occur in the United States after mass shootings and other examples of mayhem caused by firearms. People are so frustrated that they don't even bother to mention gun control. Maybe if someone wipes out an entire city...

Likewise, Early commentators in the US saw the difference possession for the common defence and personal uses. For example, the following passage is often cited by "gun rights" advocates to buttress their position:
7. “That the people have a right to bear arms for the defense of themselves and their own State, or theUnited 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; and as standing armies
in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by the civil powers.”
"The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents (December 18, 1787), reprinted in Pennsylvania and the Federal Constitution, 1787-1788, p. 422

This is because the private purposes of "defense of themselves" and "killing game" is mentioned. The problem is that the public can be disarmed for "unless for crimes committed, or real danger of public injury from individuals". This raises a few questions in my mind such as how strongly are the private purposes protected in light of "real danger of public injury from individuals". I believe that the fact that private purposes are mentioned in this passage, but aren't in the text of the Second Amendment shows that the Second Amendment should not include those purposes under the maxim of Statutory Interpretation Expressio unius est exclusio alterius (The express mention of one thing excludes all others).

Additionally, we have this quote showing a difference between use for the common defence and personal uses from ratification times.
The Bill of Rights secures to the people the use of arms in common defense; so that, if it be an alienable right, one use of arms is secured to the people against any law of the legislature. The other purposes for which they might have been used in a state of nature, being a natural right, and not surrendered by the constitution, the people still enjoy, and [may?] continue to do so till the legislature shall think fit to interdict. "Scribble Scrabble," Cumberland Gazette, January 26, 1787; "Scribble-Scrabble," ibid., December 8, 1786

The right to keep and carry firearms was one of the issues in Commonwealth v. Selfridge (1806), the most important murder trial of the early republic that began to change the need to retreat in self-defence situations. In this case, Selfridge's lawyer conceded that "every man has a right to possess military arms" and "to furnish his rooms with them." Yet the defense also recognized that the ownership and the use of non-military weapons were not constitutionally protected. Rather than assert a constitutional claim, the defense framed a common law argument on behalf of his client. Selfridge's attorney argued "there is no law written or unwritten, no part of the statute or common law of our country which denies to a man the right of possessing or wearing any kind of arms." Given this fact, it was indisputable that "in every free society a man is at liberty to do that which the law does not interdict, nor can the doing that which is not forbidden be imputed as a crime." Therefore, the acquittal in the Selfridge case made perfect legal sense since Selfridge had not broken any law.
Trial of Thomas O. Selfridge, attorney at law, before the Hon. Isaac Parker, Esquire, for killing Charles Austin, on the public exchange, in Boston, August 4, 1806 by Thomas O. Selfridge, Published by Russell and Cutler, Belcher and Armstrong, and Oliver and Munroe (Boston) 1807.

Likewise, there are other instances where it is made clear that States legislatures could regulate firearms for personal uses
The legislature, therefore, have a right to prohibit the wearing or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defense. The right to keep and bear arms for the common defence is a great political right. It respects the citizens on the one hand and the rulers on the other. And although this right must be inviolably preserved, yet, it does not follow that the legislature is prohibited altogether from passing laws regulating the manner in which these arms may be employed.

To hold that the legislature could pass no law upon this subject, by which to preserve the public peace, and protect our citizens from the terror, which a wanton and unusual exhibition of arms might produce, or their lives from being endangered by desperadoes with concealed arms, would be to pervert a great political right to the worst of purposes, and to make it a social evil, of infinitely a greater extent to society, than would result from abandoning the right itself. Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840).


Aymette is quite clear on the difference between the use of arms for Common defence and personal uses.

So, to recap on how to tell what is being discussed:

Civic context:
Basic gist: the right is better defined as a civic right in that it requires a "reasonable relationship to the preservation or efficiency of a well regulated militia" that is the body organised under Article 1, Section 8, Clause 16 of the Constitution.
The test is: does it contribute to the common defense? "How will your militia be armed?"
Key words to clue you in: "subject to militia duty", "Common defence", security, free State, discipline, standing army, system of defense, general obligation, military duty, etcetera

Personal uses:
personal non-military use, not related to the common defence.
Test: is the use military in nature or related to the common defence? If the answer is "no", then this is a private use.
Key words to clue you in: "defense of his home, person and property", family, hunting, recreational use, purpose of killing game, private use, etcetera.


Anyway, if one goes to the primary sources such as Patrick Henry's comments in regard to the Constitution, one finds a direct reference to the Federal power over the militia in relation to the Second Amendment and the need to preserve state militias from Federal interference.

Patrick Henry, Against the Federal Constitution (June 5, 1788) Argument IV: against the standing army Constitution: Article I Section 8
8.1 You will find all the strength of this country in the hands of your enemies; their garrisons will naturally be the strongest places in the country. Your militia is given up to Congress, also, in another part of this plan: they will therefore act as they think proper: all power will be in their own possession. You cannot force them to receive their punishment: of what service would militia be to you, when, most probably, you will not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish them.
9.1 Let me here call your attention to that part which gives the Congress power "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."
9.2 By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither—this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory. Our situation will be deplorable indeed: nor can we ever expect to get this government amended, since I have already shown that a very small minority may prevent it, and that small minority interested in the continuance of the oppression.


or Patrick Henry's "That every man be armed" speech found at The Debates in the Several State Conventions on the Adoption of the Federal Constitution (3 Elliot's Debates 384-7), Virginia, Saturday, June 14, 1788. Page 386-7
. . .

As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of "arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States." To the state legislatures is given the power of "appointing the officers, and training the militia according to the discipline prescribed by Congress." I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects...May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms &c.? Every one who is able may have a gun. But we have learned, by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavoured to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by a concurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication.

Additionally, even though Story is cited as being for an individual right, we find him bemoaning the "growing indifference to any system of militia discipline"
And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights. Joseph Story, Commentaries on the Constitution 3:§ 1890

Again, we find that when we use the primary sources to examine the quotes used to show an "individual right" we find a distinct civic tone. Why would one need "some organization" if the right belongs to individuals for non-common defence purposes?

Anyway, there are loads of examples of a guarantee of arms for private purposes in State Constitutions. Although, I find it interesting that some of these personal rights are recently granted, such as Delaware's from 1987, Nebraska's from 1988, and the change in language between Idaho's provision from 1978 compared to the language from 1889.

Colorado: The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons. Art. II, § 13 (enacted 1876, art. II, § 13).
Delaware: A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use. Art. I, § 20 (enacted 1987).
Georgia: The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne. Art. I, § 1, ¶ VIII (enacted 1877, art. I, § XXII).
Nebraska: All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof. Art. I, § 1 (right to keep and bear arms enacted 1988).


Idaho: The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony. Art. I, § 11 (enacted 1978).
1889: "The people have the right to bear arms for their security and defense; but the Legislature shall regulate the exercise of this right by law." Art. I, § 11.


I find the more research I do with primary sources on this subject, the more it becomes apparent that the founders saw a difference between civic and personal uses of firearms. The Civic right was that covered by the Second Amendment with the private uses being subject to common law and the police power of the States.