Trigger locks

The more I think about it, the more Chief Justice Roberts's and Justice Scalia's questions about trigger locks were off point during Dellinger's rebuttal. Dellinger was too poor an advocate to regain control. This is surprising given his experience before the Court.

First off, there is no right to self-defence in the Second Amendment. Furthermore, there is no right to own a firearm for self-defence purposes. This is the case in other common law jurisdictions and should be such in this one as well.

Secondly, the standard is whether something impedes upon the efficacy of the militia. Given this standard, we can take the example of Switzerland. A Swiss "army" member has an assault rifle in his house; however, he is subject to stiff penalties should he use it.

Every soldier equipped with the Sig 550 assault rifle is issued 50 rounds of ammunition in a sealed box, to be opened only upon alert. The ammunition is then loaded into the rifle magazine for use by the militiaman should any needs arise while he is en route to join his unit. Any other use than this, or even unsealing the ammunition is strictly forbidden. Since summer 2007, there is no storage of ammunition in private homes. No new boxes of ammunition have been issued to Swiss army members and those in private homes have been collected.

So, unless the trigger lock has a bearing upon the militia member's efficacy, this is a distraction. In fact, the National guard has held arms in its armouries since the late 19th Century. Is this a violation of the Second Amendment?

There is a reason for a dearth of Second Amendment case law and that it that the times that it is truly applicable are extremely limited. The issue of private ownership of firearms outside of militia service is not under its ambit. And the issue for which it was supposed to address, the vast military industrial complex, has remained unchallenged.

Politics: Conservative

I find it odd that people describe me as a liberal, although I don't mind that monicker given what I believe conservative has come to mean in this country. Case in point, my wife's uncle has a t-shirt with American Revolutionary "patriots" saying "Right wing crazies" or some such.

Now, Conservative is described as a political philosophy that favours tradition and gradual change. Another description of conservative is cautious with adherence to custom and precedent. Any movement toward change is considered. The American Revolutionaries were in no way conservative. They broke from England in contradiction of law and for no sensible reason. The American Revolutionaries were like bratty children. And, the people in the United States which claim the title "conservative" are in no way conservative either, especially if they wish claim to being the rebels' progeny.

On the other hand, that appellation has changed quite a bit since Richard Nixon. Looking back at Nixon's administration, he would seem surprisingly liberal to today's conservative. I would also posit that James Clark McReynolds would also seem very liberal by today's standards. He believed that the liberty guaranteed by the Due Process Clause of the Fourteenth Amendment included an individual's right "to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his conscience, and generally to enjoy privileges, essential to the orderly pursuit of happiness by free men". This belief eventually went on to found the right to privacy in Griswold v. Connecticut 381 U.S. 479 (1965), and the right to abortion in Roe v. Wade 410 U.S. 113 (1973).

McReynolds also penned US v. Miller 307 U.S. 174 (1939) and its Collective right interpretation of the Second Amendment. Justice McReynolds would find Justice Kennedy's comment about Miller being "deficient" as showing Kennedy's mental deficiency. McReynolds was a person to whom things were obvious. To McReynolds issues were right or wrong, and if you could not tell the difference then no amount of explanation would help. He had no patience for those who disagreed. What was right, was self-evident.

McReynolds didn't feel the need to spell out his decisions for those who were not at his intellectual level. So, I believe Justice McReynolds would return Justice Kennedy's "complement".

Additionally, the Supreme Court which is considered "Conservative" may overturn McReynold's precedent in US v. Miller wihtout any real basis. It goes against the Court second guessing legislation. It goes against public policy. And it goes against logic if the reason is merely that "the public believe the Second Amendment comprises this right". I have mentioned the logical fallacy of argumentum ad populum ad naseum and don't feel the need to repeat what it is. I would also add it goes against the rule of law.

Anyway, there are a few strains of conservativism: Cultural, religious, and fiscal. I would also add neo-conservativism, however, I am not sure what that really is. Neo-Conservativism runs contrary to everything that Conservativism is supposed to be.

A bit of an aside, Conservatives are also supposed to value property rights. An RKBA type wrote to say that he believed his right to self-defence outweighed my rights as property owner. This is thorough nonsense as self-defence is limited by law. I am allowed to bar firearms from my property and you are free not to enter if you feel this is not safe.

Cultural conservativism supports preservation of the heritage of a nation or culture. There is a national myth in the United States which varies greatly with US history. They myth began with the signing of the Declaration of Independence of the proud yeoman rising up against British tyranny. Although, the more I read Loyalist history, the less I believe that there was any strong support for the rebellion. In fact, I believe many people were forced to the "patriot" cause, but this isn't the place to expound on that. The independent frontiersman is the image we see, instead of the middle class citizen of New York, Boston, Philadelphia, Alexandria, Baltimore, Hartford, Providence, Charleston, and Savannah. The first is a myth and the latter is the reality.

Religious conservativism. Again, the radical right is doing everything to trash people's freedom of conscience. Amazing that someone like Justice McReynolds can be considered the father of Roe v. Wade! Additionally, the puritan strain, those who came from Cromwell and the New Model Army were the ones who wanted a separation of Church and State. Yet historical amnesia has struck and we see the resurgence of Cromwell and the New Model Army.

Fiscal conservativism. Is a joke from my previous posts. "Tax and spend" is vilified yet we have profligate spending on the military. We spend more on Iraq while this nation crumbles. Of course, there is a study that says more people are liberal/progressive than conservative in this country; however, one couldn't tell that from the media. And the media is supposedly liberal.

But, then again, what exactly is a conservative since I have just shown that Justice McReynolds would seem liberal by today's standards. He might have to become politically correct, but he would seem liberal. So, labels such as conservative and liberal seem to make no sense in US politics. And, given what conservativism has come to mean, as opposed to what I understand it to be, I am glad to be called something else.

EDITORIAL NOTE: I am not sure where Justice Kennedy was going with the "deficient" comment, but since McReynolds was a known bastard, I will not retract this. I believe McReynolds would have done something as fucked up as that

frustrate their navish tricks.

I-95 has been closed for the past three days due to structural problems. Americans believe they are entitled to free highways and cheap petrol. Unfortunately, somebody has to pay to maintain the infrastructure.

As long as it's the other person.

The revolt was due to the fact that the Crown finally sent the Colonists a bill for their defence. Not just an army, but a navy to protect trade on the seas. Nevermind the taxes weren't as high as they were back in Blighty, it's being told they had to pay taxes.

"Tax and spend" is used as a criticism of "liberals", but we are finding the national debt is being increased since it is spend like a drunken sailor by "conservatives". More is spent on the pointless invasion of Iraq than the United States. Damn any source of revenue.

But, debt makes the world go 'round, which is a criticism of most of the world's governments since we are facing a crisis based upon massive lending without any consideration of who will eventually pay the bill.

OPM--Other People's Money

On the other hand, most currency has the words "will pay on demand the sum of" the note's denomination. So, really, we have debt. The War for Independence was based upon debt. Trash paper which was worthless, but was forced upon people to show their patriotism. The British paid in gold.

Of course, The citizens of the United States have gun control, abortion, prayer in school and other wedge issues trotted out so that nothing is done until a crisis arises. Even then, nothing gets done. Something might actually get done if the wedge issues were removed. On the other hand, why bother since it is easier to keep peoples' minds on other things than really deal with serious problems.

Let's have elections which take forever, but don't result in proper representation of the people. George Bush didn't win the last two popular elections, but he won in the electoral college. of course, a parliamentary system would result in new governments every two weeks. Either that, or people would be forced to work together.

The problem is that we have leaders who don't lead, they follow. They follow polls. They follow the money of special interests which pay for their campaigns. Special interests which are at odds with the interest of the American people.

Scalia's Comments about the Highlanders and the Catholics

I am not sure where Justice Scalia was going with his legislation against Scottish highlanders and Roman Catholics forbidding them to keep and bear arms, but both were vanquished foes.

The Highlanders were forbidden to keep and bear arms after the Second Jacobite rising of 1745 unless they were in service to the king. This makes sense as they had risen against the British authority and had been defeated. In the "Proscription Act, or the 'Black Act' of 1746, as it was known to the Highlanders and Islanders, Scottish Highlanders were forbidden to own arms, which might be reasonable so soon after a war, but also to wear the kilt or any garments of tartan cloth. Offenders could and were transported to Botany Bay (Modern Day Sydney OZ) or imprisoned.

Of course, the arms the highlanders had were not modern. The Highlanders charged the English lines at Prestonpans using broadswords. So, we are discussing swords in regards to the highlanders and arms.

Likewise, there were religious wars in Europe since the establishment of protestantism (as opposed to heresies). England had the Anglican Church established outside of Roman Authority. Talk of "Papism" and "popish plots" were common in 16th and 17th Century England. These would have been contrary to English law. Any owning of arms was to prevent the possibility of revolt.

SO, there was a policy reason for barring both groups from ownership of arms just as there would be if we wished to bar terrorist groups from owning weapons. Given the Constitutional prescription against treason and the Militia's role of "executing the Laws of the Union, suppressing Insurrections, and repelling Invasions" it makes perfect sense to prevent the ownership of arms in this case.

the strict constructionist and the Second Amendment

I read that any law which does not literally impinge on an explicitly enumerated right in the Constitution passes judicial scrutiny according to the strict constructionist view.

Now, I just did a search of the constitution for self-defence, and nowhere is that term mentioned. Which means that self-defence is not a constitutionally protected right.

Again, as I mentioned in my posts on the Heller Oral arguments, the Second Amendment does not mention this. Self-defence is a common law concept, not a constitutional one.

If the object of Justices Scalia, Thomas, and Alito is to not impinge upon an expressly enumerated right, then the District's gun laws do not. Self-defence was not at issue when the Second Amendment was drafted and is not an enumerated right in the constitution.

On the other hand, the establishment of a standing army was the issue.

The Second Amendment is a dead letter, especially regarding the right of an individual to own a firearm for self-defence. Self-defence was not a concern.

Justice Kennedy's frontier farmer could be scalped and the women raped for all the "people" who wrote the Constitution cared. The issue was not self-defence, but assure the continuation and render possible the effectiveness of the body organised under Article I, Section 8, which at that time was called the militia and is now the national guard.

To say the Second Amendment encompasses the right of self-defence is to not go into the penumbra, or even umbra, it is to take it to beyond the outer edge of the logical universe. It is to create a Constitutional right where none existed. It is to forgo public safety for no sane reason. Worst of all, it is to second guess legislatures and destroy the rule of law.

Musing on the Heller oral arguments

I am not certain which way the justices will go after reading the oral arguments in DC v. Heller. The talk around the courthouse is interesting as most people are not interested in this case per se. One lawyer who has argued before Justice Alito said he is indeed favourable to the Commonwealth in his decisions. But, the Justices aren't really of interest to me. They can find what they will. Although, I am indeed curious if Justice Alito will feel bound by the US v. Rybar decision, which most attorneys find an interesting point.

All three advocates did a poor job, but Dellinger was very poorly prepared from what I read. Amazingly enough, he didn't raise the fact that this is not a case of first impression as US v. Miller has given this country a standard:

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.

To summarise yet another time, the Second Amendment must be interpreted as a whole. the declaration, that is “A well regulated Militia, being necessary to the security of a free State", and the guarantee, the "right of the people to keep and bear Arms, shall not be infringed” bit, need to be interpreted as a whole. There is loads of legal doctrine behind this. For example, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), discusses how none of the language of the Constitution can be considered "surplusage". The Constitution was written in a considered fashion and what was written must be considered essential to its interpretation.

This means a total ban on firearms in civilian hands is not unreasonable if it does not impare the efficacy of the militia/national guard.

As for Justice Robert's question If it is limited to State militias, why would they say "the right of the people"? In other words, why wouldn't they say "state militias have the right to keep arms"?

That is also quite simple to explain in that the term "people" is a term of art which is collective, not individual. This term of art refers to representative bodies, the Congress or Militia, as in "We the people" where the "people" who wrote the constitution was not the entire population of the United States, but a select group. Likewise, the militia refers to a certain body of the people. When the Constitution discusses individuals it does so as in the Fourth Amendment "The right of the people to be secure in their persons". Persons being the right of individuals.

Justice Ginsburg brings out a very good point when she points out "the people," what those words meant when the Second Amendment was adopted, it was males between the ages of what -- 17 and 45? People who were over 45 had no -they didn't serve in the militia.

Again, as I have frequently pointed out in this blog, Justice Alito's question about self-defence is easily answered as the Second Amendment is silent on that subject, but it is mentioned in State Constitutions. This is because the issue at hand was not self-defence, but the possibility of a standing army replacing the militia. Which Justice Scalia misses. In the debates, the founders said that a standing army is how the militia is destroyed, not by disarming the people. There is no source to back up Justice Scalia's assertion.

On the other hand, would Justice Scalia say that the military be abolished in favour of a Swiss system in modern times? Again, as I have pointed out many times before, the establishment of a standing army is the real issue behind the Second Amendment, not self-defence, hunting, or rebellion. My Second Amendment rights are being violated in Iraq, not Washington, DC. The large defence budget is a violation of my Second Amendment rights, not gun laws.

In short, Dellinger missed a lot of things which were in his favour and didn't seem very well versed in the issue. He had a position of power, but failed to use it. Or, perhaps he thought he had a position of power and was arrogant about it. Unfortunately, Dellinger was not well versed in his opposition's arguments. I would have thought someone with his reputation as a Supreme Court advocate would have done better research on this topic. Dellinger reminds me of myself when I was practising for moot court and the advanced student asked a procedural question which was beyond our ken. This left us like deer in the headlights because we didn't know how to respond to that question, which the older student admitted was unfair to us. On the other hand, Dellinger isn't a first year, first semester law student.

Gura did slightly better, but had an uphill battle. In fact, I think Gura was the best of all the advocates. Unfortunately, he trips over himself given that the individual right position will lead to a pandora's box of litigation based upon it's contradictory nature. A true individual right is an all or nothing affair. My right to a strategic nuclear weapon cannot be infringed if it is truly an individual right.

After all, aren't we talking nuclear weapons when we discuss arms control these days?

I don't think that the Justices are as sympathetic to his position as the media portray them. Reading Justice Scalia's comment after Justice Ginsburg's comment about white males:

Which shows that maybe you're being unrealistic in thinking that the second clause is not broader than the first. It's not at all uncommon for a legislative provision or a constitutional provision to go further than is necessary for the principal purpose involved.
The principal purpose here is the militia, but the -- but the second clause goes beyond the militia and says the right of the people to keep and bear arms.

Justice Scalia seems to be making the point I did above, where I say that the term people is more expansive than the population protected by the right. That is those who can legally claim standing to challenge this law.

I think I owe Justice Kennedy an apology as he asks Gura some really salient questions. In particular, the question about people on the frontier. My interpretation of that is that it was not relevant as that was not an issue regarding the Second Amendment. Unless, of course, one is discussing Shays's Rebellion or the Whisky Rebellion which both run contrary to the Spirit of the Second Amendment. In fact, Shays's Rebellion is a good counter to Justice Scalia's comment on militias. Shays's Rebels were not acting in accord with the Massachusetts legislature. It was an insurrection.

Gura really trips all over himself when he says: "The legislature has a great deal of leeway in regulating firearms. There is no dispute about that." Justice Stevens makes a very good point in that Gura seems to be saying "the right 'shall not be 'unreasonably infringed' instead of 'shall not be infringed'?" As I have pointed out, once one reads this as a personal right, one opens the door for litigation as to the contours of this right. Also, the right cannot be infringed, which calls all firearms legislation into question. However, this is the hope of the RKBA crowd.

And Gura points out "the fact is that at some point there is a role for judicial review." Now, it is not the job of the courts to second guess legislatures, especially when they make legislation which regards public safety. Dellinger missed the point that the right of self-defence can be limited in regards of what weapons are used. The argument that "only pistols" can provide adaquate security is totally nonsensical. It is not borne out in other jurisdiction, especially common law jurisdictions, where arms can be proscribed by law.

The Solicitor General Clement is tripping all over himself as he is in an untenable position of trying to argue both sides of the issue. One cannot split the baby in this regard. Once one questions legislative actions, all hell will break loose. Additionally, a finding of an individual right, but the ability to reasonably regulate that right will make the Second Amendment a joke. Justice Stevens very correctly pointed out that the wording is "shall not be infringed".

Justice Souter asks Clement a question where Clement totally makes a fool of himself: "if somebody goes hunting deer he is bearing arms, or are you?". Now, this is a direct reference to Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840), which was incorporated by refernce to US v. Miller which is:

Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.

The worst was Dellinger's rebuttal, as I said, he had both stare decisis and the lack of the term self-defence on his side. A trigger lock provision is a very reasonable standard if it does not impinge upon the efficacy of the militia. To say the Second Amendment encompasses the right of self-defence is to not go into the penumbra, or even umbra, it is to take it to beyond the outer edge of the logical universe.

Again, Justice Douglas said in Adams v. Williams, 407 U.S 143, 150 -51 (1972):

The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, "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."
There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.
The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." Id., at 178. The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia."

Using Justice Douglas's words, Washington, DC's law is very reasonable, as the standard is whether the law infringes upon the maintenance of a militia. A total ban on firearms is conceivable and not contrary to the Second Amendment. Even Gura concedes this: "Well, my response is that the government can ban arms that are not appropriate for civilian use." Which arms are appropriate for Civilian use, Mr. Gura? If the legislature deems one arm to not be suitable for such use based upon public safety concerns, is it the place of courts to second guess the legislature? Again, Gura is getting into the contradictory nature of suggesting that the Second Amendment protects a right outside of militia service.

There is no need to find another standard in this case, it makes sense to follow stare decisis and the standard articulated by Justices McReynolds and Douglas whether the law infringes upon the maintenance of a militia. There is no personal right to own a firearm outside of militia service.

God Save the Queen

God Save the Queen
(standard version)

God save our gracious Queen,1
Long live our noble Queen,
God save the Queen:
Send her victorious,
Happy and glorious,
Long to reign over us:
God save the Queen.

O Lord, our God, arise,
Scatter her enemies,
And make them fall.
Confound their politics,
Frustrate their knavish tricks,
On Thee our hopes we fix,
God save us all.

Thy choicest gifts in store,
On her be pleased to pour;
Long may she reign:
May she defend our laws,
And ever give us cause
To sing with heart and voice
God save the Queen.

I said I'm a tory

Come on, Justice Kennedy.

I am reading the transcript of the Heller argument and believe I could have done a better job than Walter Dellinger at arguing the case.

While it is a right of a people, we cannot take the people as a word which is anything individual in Constitutional terms. The Constitution starts with "We the people" does this mean each and every individual in the US was present during the entire ratification process? Additionally, the Second Amendment talks about the right of the people to bear arms, but the clause only applies to those enrolled in the militia. This means white males between certain ages. Certain professions were exempt from militia service and many people wanted exemption from militia duties. Were their Second Amendment rights violated?

As for the militia, Justice Kennedy, can I say I am a member of the California National Guard, which is your militia unit if I live in California? And can I say this if am a resident alien Briton? I mean the militia allegedly is all the people. Define people! As I said earlier, isn't this a blanket term and not one referring to individuals ("We the people"). Likewise, the unorganised militia argument. Are Californians who are members of an unorganised militia say they belong to the California national guard? Was the 60s draft dodger from Berkeley a member of the Militia, that is the California national Guard because he was technically a member of the "unorganised militia"?

The debates were rather explicit that the concern was the power under Article I, section 8 which Justice Alito brought up. I am wondering if Justice Alito is indeed reading this blog. Although, I think he is living up to the reputation I have heard about him.

And the silliest argument is that I am allowed weapons which are "linear descendants of arms carried in revolutionary times". The Congreve rocket was introduced at about this period, while it is comparable to the Kassam rocket used by the Palestinians, it is a direct ancestor of the modern guided missile. Using this standard means I am indeed allowed to keep tactical nuclear weapons, or even a strategic nuclear missile.

Additionally, saying that the militia who is entitled to weapons is any body other than that organised under Article I, Section 8 means that Al-queda is entitled to weapons, as are any terrorist organisation. Does this make any sense in light of Article III, Section iii?

Yes, the British Bill of rights is far more restrictive, but that is really not a relevance. And while contemporary State Constitutions declarations of rights offer an insight into the Second Amendment, they do have personal rights written into the language which allow for self-defence. Self-defence is not mentioned in the Second Amendment and was not a concern for the founding fathers, the issue of a federal standing army v. a state militia was the concern.

As for the "well regulated" language, this does not mean well trained, it means that the military is under civilian control. The militia is to be subject to government regulation, not an armed mob.

So, while the Revolutionary militia were not subject to the crown, they WERE subject to the Revolutionary authorities. It is not correct to say that the Colonial militias were independent armed bands. Additionally, there were loyalist militia bands during the revolution. There was a fear of standing armies and armed mobs at the time of the revolution. The militia was never outside of authority, whether crown or revolutionary.

Again, to say that bodies which are unregulated are eligible for this right means that Al-queda is entitled to weaponry under the Second Amendment. And the "Well-trained" definitely favours al-Queda as they were trained by the CIA. But, I have always contended that terrorists first face Mecca and praise Allah, then face Independence Hall and praise the founding fathers for allowing them the right to have weaponry in the form of the Second Amendment. The Justices of the Supreme Court may be unwittingly aiding the enemy and violating their oaths if they take the independent right to arms for insurrectionary purposes opinion.

Justice Stevens was bang on in many of his questions. I am sure Wild Bill would be proud that Justice Stevens was his successor.

I am not sure which justice brought up that guns have been regulated. Gura is caught by saying that any regulation is allowed since "reasonable infringement" is not the equivalent of "shall not be infringed". The problem is that saying the Second Amendment protects an individual right means that all gun regulations are subject to scrutiny. This is why the RKBA folk hope for an opinion that will affirm an individual right, then they will begin to "test the waters".

I will reiterate that to find any form of individual right away from militia duty is not within the intent or scope of this amendment.

On the other hand, we can find an individual right which means that al-queda, as a well trained militia, has the right to strategic nuclear weapons, which are the direct descendants of the congreve rocket.

Now, isn't that one of the stupidest things that could happen.

History Never repeats, or does it?

Justice James Clark McReynolds is widely considered one of the most unpleasant men to ever sit on the Court, being labeled "Scrooge" by Drew Pearson in his book The Nine Old Men.

Chief Justice Taft thought him selfish, prejudiced, "and someone who seems to delight in making others uncomfortable... He has a continual grouch, and is always offended because the court is doing something that he regards as undignified." Taft also wrote that McReynolds was the most irresponsible member of the Court due to his tendency to take holidays (go on vacations in septic terms), and that "[i]n the absence of McReynolds everything went smoothly". Taft's dislike of McReynolds was not based on the latter's views of the Constitution and the law, which usually did not differ from the Chief Justice's. Taft wrote that although he considered McReynolds an "able man", he found him to be "selfish to the last degree... fuller of prejudice than any man I have ever known,... one who delights in making others uncomfortable. He has no sense of duty... really seems to have less of a loyal spirit to the Court than anybody.

Justice McReynolds would not accept "Jews, drinkers, blacks, women, smokers, married or engaged individuals as law clerks."

McReynolds is known to have been misogynistic and anti-semitic. McReynolds refused to speak to Louis Brandeis, the first Jew on the Court, for three years following Brandeis's appointment and, when Brandeis retired in 1939, did not sign the customary dedicatory letter sent to justices on their retirement. He habitually left the conference room when Brandeis spoke. When Benjamin Cardozo's appointment was being pressed on Hoover, McReynolds joined with Justices Butler and Van Devanter in urging the White House not to "afflict the Court with another Jew." When news of Cardozo's appointment was announced, McReynolds is claimed to have said "Huh, it seems that the only way you can get on the Supreme Court these days is to be either the son of a criminal or a Jew, or both." During Cardozo's swearing-in ceremony, McReynolds pointedly read a newspaper, and would often hold a brief or record in front of his face when Cardozo delivered an opinion from the bench. According to John Frush Knox, McReynolds's law clerk in 1936-37 and the author of a memoir of his service, McReynolds never spoke to Cardozo at all. McReynolds even absented himself from the memorial ceremonies held at the Supreme Court in honor of Cardozo. He did not attend Felix Frankfurter's swearing-in, exclaiming "My God, another Jew on the Court!".

McReynolds's rudeness was not confined to colleagues on the Court. Once, when called before the chairman of the Golf Committee at the Chevy Chase club after complaints were filed against him, McReynolds said: "I've been a member of this club a good many years, and no one around here has ever shown me any courtesy, so I don't intend to show any to anyone else." The indignant chairman replied: "Mr Justice, you wouldn't be a member of this club if it wasn't for your official position. The members of this club have put up with your discourtesy for years, merely because you are a member of the Supreme Court. But I'm telling you now that the next time there is a complaint against you, you'll be suspended from the privileges of the golf course." Justices Pierce Butler and Willis Van Devanter transferred from the Chevy Chase club to Burning Tree because McReynolds "got disagreeable even beyond their endurance."

McReynolds has been called the most reactionary of Supreme Court Justices.

Yet, Justice McReynolds was the author of United States v. Miller 307 U.S. 174 (1939), which prior to DC v. Heller was the only Supreme Court decision to directly address the Second Amendment. It was a unanimous opinion which has been accepted as that the holding is:

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.

To summarise yet another time, the Second Amendment must be interpreted as a whole. the declaration, that is “A well regulated Militia, being necessary to the security of a free State", and the guarantee, the "right of the people to keep and bear Arms, shall not be infringed” bit, need to be interpeted as a whole. There is loads of legal doctrine behind this. For example, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), discusses how none of the language of the Constitution can be considered "surplusage". The Constitution was written in a considered fashion and what was written must be considered essential to its interpretation.

I personally believe that Justice McReynolds would be appalled at the possibility that DC v. Heller could find that the Second Amendment would find any right outside of militia duty. It would be interesting to see what sort of comments he would be making about the so called "Right to keep and bear Arms" crowd if he were here today.

Now, Justice Alito is allegedly the most conservative of Supreme Court justices on the bench today. If US v. Rybar gives any indication of Justice Alito's opinion of the application of the Second Amendment, we can believe that Justice Alito will also find no merit in Heller's arguments as he previously found no merit in the same arguments when they were presented in Rybar.

Now, the right wing, I do not find these people "Conservative" by any means, have said that a finding of an individual right will mean that:

And Heller is just the beginning. There will be more Second Amendment cases. If the Court finds the Second Amendment guarantees to American citizens an individual right to own firearms, 20 years of major cases will follow, fleshing out the contours of this right. according to Sandy Froman

Better yet, we will have litigation on the laws regarding felon in possession of a firearm.

Robert Levy has also said that other gun laws will be brought into question, meaning that a finding of an individual right will open the floodgate of litigation to try and overturn every regulation on firearms.

Now, as I understand conservatism means one does not lightly change the status quo, especially if that status quo involves public safety. However, what is called conservatism is the United States is really reactionaryism. Although, I think even Justice McReynolds would seem liberal compared to this strain of reactionaryism. While Justice McReynolds may have been misanthropic, he certainly was no idiot.

My hope is that Justice Alito will follow the conservative strain as shown by Justice McReynolds and not this tom foolery which calls itself conservativism these days. I hope that he can pull the same sort of coup which a curmudgeon like Justice McReynolds could bring about a unanimous court to find that the second Amendment guaranteed no individual right, but was to be interpreted as guaranteeing the effectiveness of the forces organised under Article I, section 8 of the Constitution.

The priority of government should be to assure the welfare of its people, which a finding of an individual right to firearms will not. A finding of an individual right will only mean that the United States will continue to have the highest body count and a plague of injuries due to firearms.

A guarantee of security will become carte blanche for terror.

The true conservative opinion regarding the Second Amendment is that it has no bearing upon an individual right to firearms and never has. Of course, Justice McReynolds wouldn't be too surprised if the Court did something as undignified and unprecedented as finding an individual right.

Let's surprise the old fart this time.

Square peg, round hole.

Tomorrow we may find out if the Supreme Court of the United States will, or will not, engage in the most outrageous act of judicial activism in the case of DC v. Heller.

The Second Amendment is not a guarantee of an individual right to own firearms, but a guarantee that standing armies will not be established. Every quote taken out of context by the "RKBA" crowd when read in its entirety shows that the issue was a fear of the establishment of a standing army. That is a large military-industrial complex. Think George W. Bush invading Iraq based upon false pretexts and you get the idea of what the founding fathers meant by tyranny.

Instead of preventing a massive military budget, the Second Amendment has been used to prevent any attempt for public safety through the regulation of firearms. Somehow, this fact has been missed by all those writing briefs. Maybe some Supreme Court justice's clerk reads my blog and this issue will be raised, but I think that this has been lost in the rhetoric. It's unfortunate. I hope that the issue of prevention of standing armies will be raised and addressed, but that hope may prove in vain.

The Declaration of Independence doesn't mention seizing private firearms, but it does mention keeping "standing armies in time of peace". Anytime the right of keeping and bearing arms is mentioned it is in the context of standing armies and how tyrants build large military machines. The militia is made effete and replaced by a standing army.

The Second Amendment is not as clear as most people believe. Interpreting it without knowing the context in which it was proposed and ratified may just produce the wrong conclusion. One needs to realize that our founding generation was deathly afraid of standing armies. As British citizens, they surely knew that it was only about a century since Oliver Cromwell had used Britain’s “New Model Army” with its red uniforms to overthrow the king and have himself installed as Lord Protector. They also knew that the kings in Europe, including their beloved George III, maintained power by keeping large standing armies to protect them. Even during our Revolution there were many Americans who feared George Washington’s Continental Army as a force that could impose a new tyranny after ousting the British. Militias of the people, however, could provide for the national and state defense without the dangers of a standing army.

The first statement of what later became the Second Amendment was contained as Article XIII of the Virginia Declaration of Rights. It read,

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.

The phrase “That the people have a right to keep and bear arms” was added to this language in 1788 by the Virginia constitutional ratifying convention in its proposed bill of rights. The New York convention broke up the right into three paragraphs:

That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State;
That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection.
That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.


When James Madison submitted his version of the Bill of Rights to the Congress in 1789 the provision was close to its final language,

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

The final version, adopted by the Congress and then sent to the states for ratification, reversed the order of the first two clauses and dropped the conscientious objector provision.

Thomas Jefferson was against a Constitution that did not contain a bill of rights to protect the people not against themselves, but from the federal government:

“I hope, therefore, a bill of rights will be formed to guard the people against the federal government as they are already guarded against their State governments, in most instances”

[Thomas Jefferson to James Madison, 1788. ME 7:98]. Jefferson was alarmed with the defects he found in the initial Constitution sent to him by Madison, and made it known he found it objectionable that there was no provision guarding against a standing army:

“I will now add what I do not like. First, the omission of a bill of rights providing clearly and without aid of sophisms for freedom of religion, freedom of the press, protection against standing armies…”

Elbridge Gerry said:

This declaration of rights, I take it, is intended to secure the people against the mal-administration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms.

What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. 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.

In other words, the Second Amendment is not an individual right to bear anything, but a security of the people to keep and bear arms for purposes of maintaining public militias as a guard against a standing army. The House Committee on the Militia in December of 1833 had no illusion what the Second Amendment stood for when it considered modifying existing militia law in the several States to allow for the following:

…to permit each State in time of peace, in the discretion of its Legislature, to require no person to bear arms under twenty-one, or over forty years of age, and to permit the inspection of arms to be taken by companies instead of by regiments or battalions; and, also into the propriety and justice of providing arms and accoutrements at the public expense for those liable to bear arms…


First of all, it was recognized that such matters as to who can, or cannot bear arms, is up to the State legislature. If the Second Amendment was an outright individual protected right as some like to believe it is, then such proposed State laws would clearly be violating persons under the age of 21, and over the age of 40, right to bear arms under the Second Amendment.

Clearly then, the context of bearing arms is purely in a military service context since that is all the term “bear arms” imports. The term “bear arms” had the universal understanding of militarily taking up arms against another in aggression, which of course explains why there were people who were religiously scrupulous to bearing arms or supporting militias financially, but otherwise had no problem with personally owning private weapons. Quakers for example, refused to “bear arms” or contribute funds in support of the militia, yet had no objection to personally owning firearms.

President Andrew Jackson confirms the right under the Second only relates to the collective right to bear arms under militias for defense of the State: “To take from the people the right of bearing arms, and put their weapons of defence in the hands of a standing army, would be scarcely more dangerous to their liberties, than to permit the Government to accumulate immense amounts of treasure beyond the supplies necessary to its legitimate wants.”

The Second Amendment only qualifies bearing arms as part of the defense of the State, not personally, because it focuses only with the body of the people who make up the militias. There is no qualification to a right to private ownership because that would dwell into domestic concerns of a State, something the federal Constitution does not by design permit.

To me it is clear that the right to keep and bear arms must be read in conjunction with the founding generation’s determination to rely on militias, rather than a standing army, for national defense. Certainly the right to bear arms is a right of the people, not the state or federal governments. On the other hand, the right was clearly intended to guarantee the existence of militias, not for any other purpose. Further, the fact that we now are perfectly comfortable maintaining a standing army, navy, air force and marine corps and that our state militias have been themselves formalized into National Guards and Reserve components leads to the obvious conclusion is that the right to bear arms for the purpose of maintaining a strong national defense is no longer relevant in 2008.

Of course, judges are supposed to be free of the political fray which leads to the type of mess and confusion which the Second Amendment has found itself in the mind of the masses. Few are willing to discuss the true meaning of the Second Amendment as a guarantee against standing armies. On the other hand, will the justices raise this issue? There are commentators on the internet who do, but this seems lost in the piles of briefs pro and con in DC v Heller.

Additionally, the Supreme Court has ruled on this and found that the right is one to enable the body organised under the militia powers granted in Article I, Section 8 of the Constitution in US v. Miller. Miller was reiterated in US v. Rybar which stated that the same arguments which are being presented by Heller in this case were without merit. Which means that one Supreme Court Justice, Alito, has ruled upon this question and found the "individual right" argument without merit.

Given that my Second Amendment right is to be free from a large, standing military, that right is being violated in Washington, DC. Not by the District of Columbia's firearms laws, but by the legislature and executive by allowing the invasion of Iraq. To find that the Second Amendment allows for an individual right to own firearms unrelated to militia duty is to make logical leaps of outrageous proportion.

Still even yet more DC v Heller

There is a phrase that seems to be missing throughout all this punditry on DC v Heller, with the exception of my posts: stare decisis. Actually, the American Bar Association's Brief deals specifically with this topic.

QUESTION PRESENTED
Whether the following provisions—D.C. Code §§ 7-
2502.02(a)(4), 22-4504(a), and 7-2507.02—violate 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?

There is an objection in court "Asked and answered", which this question is.

It has been taken as a ruling that the Miller court established that there needs to be a relationship between the activity and to ensure the efficacy of the Militia institution set up under Article I, Section 8. This has been the interpretation for the past 70 years. Prior to Miller, the Second Amendment has not been seen as a barrier to gun control.

In fact, any detailed reading of the primary source material shows that the Second Amendment is a guarantee that the Militia forces would not be disarmed. In fact, the Second Amendment is a guarantee against standing armies, not personal ownership of firearms. But, for some reason, the peace movement hasn't capitalised on the debates the way the guns for criminals crowd has.

Anyway, with the cost of "gun violence" in terms of public health and law enforcement, there is no reason to find an individual right. Even more impotantly to place concept of self-defence within the purview of the Second Amendment when it has not been a part of that Amendment's purpose or jurisprudence.

One need not go too far to find merit in DC's appeal and overturn the Parker decision.

The legal rules require such a decision.

The law of self-defence

The issue of Self-defence in regard to the Second Amendment is a real diversion. As I consistently point out, the term is not mentioned in the Second Amendment. Secondly, the use of deadly force is extremely limited in most jurisdictions. Of course, there are the "licence to murder" laws which change the common law concept of self-defence to make deadly force a first option.

In most jurisdictions, when the defense succeeds, it operates as a complete justification when the degree of violence used is comparable or proportionate to the threat faced, so deadly force would only be excused in situations of "extreme" danger. In other words, you must be threatened by deadly force to use deadly force. If the attacker can be stopped with a non-lethal agent (e.g., pepper spray), then you don't have the right to use deadly force.

So, The defense would fail if a defendant deliberately killed a petty thief who did not appear to be a physical threat. On the other hand, you would be justified if you had been robbed by someone with a replica firearm or BB gun and shot the robber. But, if you were a black belt and disarmed the person, you would stand a better chance of getting off.

So, when an assailant ceases to be a threat (say, being tackled and restrained), the defense will fail if the defending party presses on to attack. One is justified in using enough force to stop the attach, but one cannot go beyond that force and become the aggressor. A somewhat less obvious application of this rule is that admitting the use of deadly force in an attempt to disable rather than kill the assailant can be construed as evidence that the defendant wasn't yet in enough danger to justify lethal force in the first place.

Some jurisdictions have a duty to retreat. This means that if you could back down, or run away, from the threat, you are not justified in using force. Of course, the duty of retreat makes the defense problematic when applied to abusive relationships (see battered woman syndrome and abuse defense), and in burglary situations given the so-called castle exception which argues that one cannot be expected to retreat from one's own home, namely, “a man’s house is his castle, et domus sua cuique est tutissimum refugium " i.e. Latin for "and each man’s home is his safest refuge”).　However, if one is "challenged" in a bar for a fight, accepting such challenge, instead of walking away, generally will not constitute a self defense.

Again, if one could deescalate the situation, but fails to do so, you cannot say that you acted in self-defence.

In some jurisdictions, the concept of "pre-emptive" self defense is limited by a requirement that the threat be imminent. Thus, lawful "pre-emptive" self defense is simply the act of landing the first-blow in a situation that has reached a point of no hope for de-escalation or escape. Many self-defense instructors and experts believe that if the situation is so clear-cut as to feel certain violence is unavoidable, the defender has a much better chance of surviving by landing the first blow (sucker punch) and gaining the immediate upper hand to quickly stop the risk to their person. Again, the force used must only be that necessary to stop the threat.

The problem is that the RKBA crowd want to get more guns on the streets via liberalised CCW laws and the "licence to murder laws" which change the definiton of self-defence to allow for the use of deadly force in situations where it is not justifiable under common law.

No one has the right to deadly force, especially if one wishes to link this to the right of militia members to "keep and bear arms". We have two separate concepts working here: Militia service and self-defence. Every common law jurisdiction has the heritage of these two concepts, yet other common law jurisdictions severely restrict the items which can be used for self-defence. Anyone who has been to England or Canada knows that things like pepper spray, mace, stun guns, and especially firearms and not allowed to be possessed for self-defence.

Another thing which I find odd, is that with all this talk about right to life, no one has brought in Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms which defines the Right to Life as follows:

1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Opinions can differ on what is a reasonable amount of force, but one thing is certain. The defendant does not have the right to decide how much force it is reasonable to use because the defendant would always believe he or she was acting reasonably and would never be guilty of any offence. It is for the jury, as ordinary members of the community, to decide the amount of force which it would be reasonable to use in the circumstances of each case. It is relevant that the defendant was under pressure from an imminent attack and might not have had time to make entirely rational decisions, so the test must balance the objective standard of a reasonable person by attributing some of the subjective knowledge of the defendant, including his or her beliefs as to the surrounding circumstances, even if mistaken. However, even allowing for any mistakes made in a crisis, the amount of force must be proportionate and reasonable given the value of the interests being protected and the harm likely to be caused by use of force. The classic test comes from the Jamaican case of Palmer v The Queen, [1971] AC 814:

The defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. ...Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. ...It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have [to] avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence... If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.

So, to argue that one has a right to arms for self-defence is a misunderstanding of the common-law concept of self-defence. One only has the right to use as much force is necessary to stop that threat. There is no right to use a firearm if a non-lethal alternative exists that can stop the attack (e.g., pepper spray).

Additionally, one can argue that the right to life means that one cannot be deprived "of life, liberty, or property, without due process of law." The fifth Amendment specifically states this, which would put it in conflict with the Second Amendment if that allows for the use of deadly force without justification.

To argue that the Second Amendment allows for the ownership of firearms for self-defence is to take both the Second Amendment and the concept of self-defence totally out of context.

RKBA and Anti-semitism

Bob Levy is old enough to remember anti-Semitism. Hell, you don't need to be that old since a Temple University kid was beaten up for being Jewish within the last week. That's in Philadelphia which has a pretty large Jewish population.

On the other hand, he is not savvy enough to realise who he is getting into bed with. The RKBA crowd tends to like to talk inclusivity, but I keep seeing a video of a klan member saying "don't let them take away your guns". The logic was that the minorities, Jews and Blacks, will ruin the United States as they knew it.

Gun control is a tool of the culture war. And the right likes using fear of crime and minorities and government's lack of ability to "protect you" as a tool of control. And even though JFPO comes up pretty high if you google "jews gun control" it doesn't take long until you find something like this:

http://wsi.matriots.com/gun_legislation.html

Better yet, check out these posts:

http://www.wakeupfromyourslumber.com/node/5307
or
http://www.stormfront.org/forum/showthread.php/jews-gun-control-58147.html

Now, Bob, are you ready for the backlash if your little gamble fails? Is Alan Gura also a Jew? Judge Laurence H. Silberman was the author of this piece which is getting US Supreme Court attention. Now, doesn't this play into the hands of those who want to put fear of Jews into people's minds? The last blog entry shows my fears are justified.

Of course, it might be a Catholic, or more, who will stand up for the "collective right"/militia enabling interpretation. Don't forget that Catholics have been victims of prejudice as well. I mean, the US should be proud that Kennedy was president after all.

Bob, for all your bravado, are you certain that you will really prevail when the arguments you present were previously rejected by Justice Alito in US v. Rybar, 103 F.3d 273 (3d Cir. 1996)? In fact, with the exception of two opinions, the courts in this country have held that the Second Amendment only applies to the militia, that is the body organised under Article I, Section 8, and its direct activities.

Now, Bob I know you don't own a gun. I can probably guess that you've never been to a gun show either. I am not sure how you would react to all the Nazi regalia you would see them and books like the "Turner Diaries". Ever read that one, Bob? You should if you haven't. That book was the inspiration for the Oklahoma City bombing, Lots of the guns for criminals crowd say that type of thing will happen if the Court finds against them.

And they claim to be law abiding!

The world is a scary place, Bob, and you are helping make it scarier. Head you lose, tails they win. What will the body count rise to if the Personal right is affirmed? Where will that lead? There are 2255 petitions from federal prisoners and other challenges to severe federal gun sentences that will flood lower courts if the Supreme Court issues a broad Second Amendment ruling.

On the other hand, what will the RKBA crowd say if the Collective right is affirmed? Remember you are in cahoots with some serious right wing crazies.

Can't get my mind off it.

I have to admit that I am worried that the Supreme Court will make the wrong decision in DC v. Heller. They will be swayed by popular opinion and new "scholarship". Of course, the NRA disagrees with me and believes that the Supreme Court will back the "collective rights theory". The RKBA crowd would prefer if the US legislature annul the locally enacted law.

Additionally. Alan Gura (one of Heller's attorneys) has told the RKBA crowd to stay away from the lawsuit. Exact words: {By allowing the RKBA groups} "to join this litigation would substantially and unnecessarily complicate what is presently a straightforward single-issue case...By adding a variety of extraneous claims to a case that is nearly ready for summary disposition, the Seegars plaintiffs would impede this court in resolving the narrow issue presented in the Parker litigation and substantially prejudice the Parker plaintiffs by delaying resolution of their claim."

The single issue:

“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate 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?”

The accepted interpretation of US v. Miller, 307 U.S. 174 (1939) is that it does not. U.S. v. Sandidge, 520 A.2d 1057 (D.C. 1987) held that it did not, and was precedent until the Parker court decided to violate stare decisis and say that those code sections did. Sandidge said straight out that the Second Amendment applied to the Militia, which is currently the DC national guard. Anyone who was not a member of the militia engaged in militia related duties did not have a right to arms. Additionally, US v. Rybar, 103 F.3d 273 (3d Cir. 1996) was another of the many cases which addressed this issue and found that the right applied only to militia related activities.

For the most part, as I have said over and over here, is that this was pretty much the accepted legal interpretation of the Second Amendment. The only other exception to this was US v. Emerson, 270 F.3d 203,(5th Cir. 2001)

The problem is that the egregious courts fail to address the pertinent case law. The Parker majority ignores three Supreme Court cases that address the meaning of the Second Amendment. In U.S. v. Cruikshank (1876), the Court concluded that “bearing arms for lawful purposes” was not what the Second Amendment was about. More importantly, the Court stated flatly in Presser v. Illinois (1886) that the Second Amendment did not protect a citizen’s right to privately bear arms; instead, it protected the “keeping and bearing of arms” so that the government could not be deprived of “their rightful resource for maintaining the public security” or “disable the people from performing their duty” to the government. And in 1894, the Court upheld a Texas law “prohibiting the carrying of dangerous weapons” in Miller v. Texas, turning aside a Second Amendment rights claim. Little wonder that these three cases went unmentioned.

Instead, we see reliance upon "New Scholarship" which is erroneous and basically advocacy. The problem with the "New Scholarship" is that it doesn't address the real issue, which was the conflicting institutions, the Federal Army v. State Militia. The primary source literature is full of talk about how a standing army can be used to oppress the people: nothing substantial about personal right to firearms outside of militia service. And the fear of a standing army is much more realistic proposition than my having personal firearms for self-defence, let alone hunting. Since firearms were handmade, they were expensive (think Purdey or Holland and Holland shotguns). Hunting was a pass time of rich landowners, not the common person.

Also, I have pointed out before as well, hunting and self-defence are not mentioned in the Second Amendment as they are in State grants of the "right to keep and bear arms". Many of these state rights have been rewritten in recent years to be more in line with the popular view of the right to keep and bear arms. Taking it away from a right intertwined with militia service and making it a personal right in the State Constitutions.

On the other hand, the Second Amendment has been interpreted by the Supreme Court as being a right of the militia:

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.

Popular opinion has misinterpreted Miller ignoring the above passage, especially the last sentence: It must be interpreted and applied with that end in view..

This is pretty emphatic that the Second Amendment applies only to the body known as the militia. This is the body organised under congress's powers from Article I, Section 8. It isn't a hypothetical body (i.e., "sedentary militia" or "unorganised militia"), or some fantasy army of rebellion. The right only applies to active militia related activities.

I have hopes that Justice Alito will be a voice of reason and advocate continuation of the current accepted interpretation and put paid to this "New Scholarship". The law is not to be swayed by popular opinion. Not if it wishes to remain the law. A judge should keep in mind the rule of law, one of those principles being stare decisis.

Sex and the Old Testament

Changing the subject back to something much more fun: Today's Independent has an article titled "What they don't teach at Sunday school: the joy of Old Testament sex". There is an anecdote about Evelyn Waugh who was trapped in the company of Randolph Churchill, the son of the prime minister. "In the hope of keeping him quiet," he wrote to Nancy Mitford, "Freddie and I bet him £20 that he cannot read the whole Bible in a fortnight. Unhappily it has not had the result we hoped. He has never read any of it before and is hideously excited; keeps reading quotations aloud... or merely slapping his side & chortling 'God, isn't God a shit!'."

Of course, that doesn't come as a surprise to anyone who has read (or seen) A Clockwork Orange in which Alex starts reading the bible for the same things that the younger Churchill discovered: that there are some very dark passages in the Old Testament, stories of lust and cruelty that have no obvious moral. Incest, bigamy, rape, mutilation, deceit, loyalty and love can all be found in the Good Book.

A professor at Bangor University, Nathan Abrams, has put together a book about the sexy bits in the Bible called Sex and the Jews in which he comes up with some pretty interesting observations.

I have found that Judaism is a whole lot more liberated about sex than its bastard progeny, Christianity. For example, abortion is not a problem for Jews who do not believe in life beginning at conception. In fact, the Jewish perspective is closer to the medical perspective which is that the unborn infant's life is purely speculative, but the mother is a living person whose life and well being should be considered.

Written by different authors, possibly at very different times, the Old Testament can be self-contradictory. The story in 1 Samuel of the friendship between David, the handsome young warrior who has just killed Goliath, and Jonathan, son of King Saul, is often interpreted as a tale of gay love. In one verse, it says: "And it came to pass... that the soul of Jonathan was knit with the soul of David, and Jonathan loved him as his own soul." If they were gay lovers, there is no indication that the God of the Old Testament disapproved, a reaction that fits comfortably with modern enlightenment culture.

In other passages, God's attitude to sex seems shockingly repressive, as when, for instance, he pronounces a death sentence on Onan, for pleasuring himself in a way that denied his wife the chance to become pregnant. Hardline theologians might like the idea that all sex is sinful other than for the purpose of procreation, but for the more liberal-minded, it is a tricky story. It arises from a culture in which a woman's standing in the community and sense of self-worth depended heavily on her capacity to produce children.

Dr Abrams, who comes from a Jewish family, was also struck by the curious morality of the Old Testament, as displayed by Lot, a righteous man who offers hospitality to travellers passing through Sodom, and when a mob gathers wanting to rape the men, offers his virgin daughters instead. It is as if the girls' virginity belongs to their father, who is so good that he is prepared to sacrifice this precious possession for the sake of his guests. Later, when the going gets rough, Lot is seduced by those same daughters – another tale of the desperate lengths women went to achieve motherhood.

"I think the lesson to be drawn from this story is about what can happen sometimes when people are set obsessively on a certain path, even if it is the right path," Dr Abrams said. He is now bracing himself for the reaction he can expect to his book, either from traditional Jews or, at the opposite extreme, from people who will see the book as food for their anti-Semitic prejudices.

"I'm not a theologian, and I don't speak for any organisation or community. I just want to start a discussion on issues that might not have been discussed in this detail before. These are serious essays by people who have been studying these subjects for a long time ... These essays haven't been written to shock and they're not sensationalist or purely prurient.

"There are parts of the Jewish community that don't like us airing our dirty laundry in public ... and there are anti-Semites who will like what we are doing. They will say it justifies their view of Jews as sexually corrupting. I don't think these people should stop us having a healthy debate."

On the other hand, I question where Christian theology has come up with its perspectives upon the Bible which vary greatly from Jewish scholars. Talmud scholars spend most of their time debating the fine points of the Bible, and have been doing so for long before most Christian scholars ever knew Hebrew. I mean it IS the Jewish holy book which has had extra texts added on to it.

This isn't the essay to get into what parts of the "New Testament" are valid or not, but there are apocryphal texts out there which have a different take on Christianity (e.g., the Gospel of Mary Magdalen). The Baptists criticise the Mormons for adding on texts to a perfect Bible, but who decided which of these texts were valid? Was the Council of Nicea divinely inspired or politically motivated? Likewise, who is to say that texts which go against Judaism are valid?

Whatever the case, Judaism has a totally different attitude toward sex and Childbearing than does Christianity. An attitude which is much more tolerant toward sex.

Musing on the religious right

There are three constituencies in the US which do not represent the American public, yet have more power than they should: the Israel Lobby, the RKBA crowd, and the religious right. Despite the talk of democracy, and the Constitution, these three groups are the most open in running the American political scene. I could add the Oil Companies in here as well, but they aren't as vocal or counterproductive to US interests as these three special interest groups.

I said in an earlier blog that I thought Mike Huckabee would be the Republican nominee, which has proven to be wrong. My reasoning was that the religious right appears to be a significant factor in US politics. The real reason may be much simpler in that most citizens of the US are pretty apathetic with the exception of these three groups. The Average American is pretty much fat, dumb, and happy with loads of debt and kept in isolation by too much television which is pretty much crap. To quote Bruce Springsteen, whose music I hate, but has bang on politics: "500 channels and nothing's on". Loads of ESPN rubbish. Bread and circuses for the plebians.

Somehow, the religious right's message is fading away, but I am not sure about their influence. These groups are pretty good at subverting the Constitution. Article VI says that no religious test should be applied, but woe upon Mitt Romney for belonging to a "Cult" (see Mitt Romney post). I'd hate to think about a Jew, or, worse, an ATHEIST running for office.

Fortunately, the Republicans are just that and not democratic, or the squeaky wheel crowd might be fielding Mike Huckabee as a presidential candidate. I'm not sure Huckabee is out of it yet, as he could be in line for being veep. That would be the true test of whether the religious right has any power.

But, it's people like my sister in law, who was born Jewish, yet supports the republicans out of fear of things like "socialised medicine". She is less afraid of the religious crowd and voting with her purse. That is the only reason the religious right has appeared to have so much sway. "Conservatives" believe that it could never happen here, forgetting the lesson of Adolph Hitler, who was democratically elected by people who were more afraid of Communism than Hitler's anti-semitism.

The religious right and RKBA crowd work on the politics of fear. Fear that gays will erode the institution of marriage, destroying the family. On the other hand, what are they doing about the high rate of divorce? Isn't that eroding family values? There is this myth of a golden era of the church, the family, hardy individuals, and other things which make the US feel good about itself. Never mind Ben Franklin had a bastard son and Thomas Jefferson diddled his slave.

The problem is that the fear mongers are the ones we should be afraid of, as they are taking us farther and farther from a safe world. FDR said that "the only thing we have to fear is fear itself". The world has become a scarier and scarier place under the right wing. We have lost the Communist bogyman who was keeping things safe in Eastern Europe under Bush Senior and lost a Bogyman who kept Iraq under control. Would 9-11 have happened if the Communists were still there to keep a reign on the Islamic world, and we hadn't given aid to the Mujahadeen who later became Al-Queda?

The problem is that the Genii is out of the bottle due to Americans not thinking and letting the special interests control us. Better yet, maybe our leaders will realise that these groups are not representative of the Ameican people and stop pandering to them.

Guns in school

I was a victim of school bullying when I was in Kindergarten. A group of bigger boys beat up on me as the teachers watched doing nothing. I wanted to take a toy gun to school the next day for protection, but my mom stopped me. Now, we have kids who want to bring real guns to school for protection. The worst part of this is that the adults are encouraging this.

Additionally, I have been in Juvenile court where the judge says this action should not be allowed. I had a client who carried a gun for protection and actually used it, yet was charged with a crime. The special juvenile gun prosecutor, a life NRA member saw no disconnect in prosecuting this juvenile. My client was sent to Glen Mills for gun crime.

Now, are we allowing rich, white kids to pack heat, yet showing a bias against poor, black kids in the 'hood are are far more likely to be victims of gun violence? What sort of message is it when a kid is adjudicated delinquent for carrying a gun in self-defence, yet he could have applied for and received a permit to carry that firearm had he been a few years older?

The RKBA crowd have no problem with this, especially since they are the ones ensuring that criminals have unfettered access to firearms. It is no surprise to me that the Second Amendment Foundation's Alan Gottlieb is a convicted felon. Sure, it's for a "non-violent offence" (tax evasion), but he's a felon. The NRA had another slimy type on their board, Sandy Abrams, whose Valley Guns is one of the leading suppliers of crime guns in America, ranking 37 out of nearly 80,000 gun dealers nationwide in total crime guns traced to their stores. The Bureau of Alcohol, Tobacco, Firearms and Explosives has documented over 900 violations of federal law at Valley Gun, including illegal gun sales.

No wonder these people don't want gun trace data publicised! But, I digress.

The whole gun rights thing is ludicrous in that it is counterproductive to public safety. And more importantly, the truly law abiding gun owner. I find it amusing that the NRA is trying to discredit the AHSA (American Hunters and Shooters Association), a saner firearms group. I have to admit far more sympathy with AHSA's approach than the NRA. The AHSA realises that people involved in shooting sports need to be conservation minded and promote sane gun laws. It's kind of late for me though because urban sprawl has pretty much destroyed most places I can shoot in Eastern PA.

On the other hand, we hear lots of talk of gun rights and dealing with gun crime, but that is coming from organisations that strive to weaken and void firearms laws. The RKBA trumps people's property rights. In this case, a University can't have a policy against guns on campus without someone getting upset about it. But, doesn't someone's property rights count for something? In this case, a University's property rights.

No, the illusory right to keep and bear arms trumps people's other rights. It especially trumps society's interest in making sure that the streets are safe from the plague of gun violence and its costs to society.

Love and Marriage

The California Supreme Court is dealing with the issue of gay marriage, which is something I've wanted to weigh in on since I did my first tax return after getting married.

Marriage is not really a sacrament. It's about property and money. Always has been. And gay marriage is about making sure that people who are in a committed relationship are treated like family members.

I've always seen marriage as being something which is special, but lots of people treat it pretty lightly. We are not talking gays here. How many people get divorced? Even more salient is how many people who oppose gay marriage have been divorced?

And if we are talking about procreation, maybe I shouldn't have gotten married. My wife was post-menopausal when we were spliced. Jewish tradition says that a man can get a divorce if his wife doesn't provide him with children (see the film Kaddosh). My wife and I don't even spend that much time together. Not that I am happy about the latter (time together), but the not having kids isn't a problem to me. I mean there are far too many children on this planet, but that is a whole 'nother post.

On the other hand, by actually being married, rather than just living together, we get all sorts of financial benefits: tax breaks, health insurance breaks, and so forth. When I lived with a woman, we were not treated equally, even though we were in a common law marriage in a jurisdiction that recognises that type of union. Her employer would not recognise that we were a "common law" couple either, which meant none of the goodies you get by being "married".

So, why force people into bad relationships if marriage is a sacrament? Also, shouldn't we be seeing responsibility from people (in particular men) for the children they bring into the world. One question that has always bothered me, is why men can treat their children's mothers so badly, especially financially. Or even why men are willing to treat the children they bring into the world badly.

As one person said, "if men got pregnant, abortion would be a sacrament"

On the other hand, we say marriage is a sacrament, yet we are more than willing to allow this union which "god hath ordained and no man can put asunder" to be dissolved fairly easily. Probably because it's men who want to play the field. Which leads me to muse on how many single mothers are there in this country? The divorced women with a child, or more. Shouldn't motherhood be valued?

I find all this talk of "family values" to be really hypocritical when the person who is spouting it has had affairs, or is divorced.

But, as I said, the real issue isn't what the institution is called, it's the fact that the institution is treated specially. People in loving and committed relationships should be treated the same as those in marriages of convenience, which is all a loveless marriage really is.

The fact is that gays just want the financial and social benefits of marriage. Like those in common law marriages, they don't receive the same benefits in a "domestic partnership".

That's really all this is about is equality. On the other hand, I don't think this country can handle true equality, especially for gays.

Why so many mass shootings?

I heard the comment that the Police didn't know the reason for yesterday's shooting at the West Palm Wendy's. Try he didn't like Mondays. To quote the song: "there can be no reason, because there is no reason."

The obvious one seems to never be mentioned: access to firearms in the United States is far too easy. I can buy a handgun simply by presenting a valid driver's licence here in Pennsylvania. That is a scary concept given that the crime of identity theft is pretty common. It doesn't take too much to come up with a clean driver's licence in someone's name. Or the other options the straw purchaser or the gun trafficker.

Of course, we hear about John Lott and Gary Kleck, but their work is obviously flawed. Lott doesn't take into account other factors which could explain the drop in crime, but uses the numbers to back up his hypothesis. Other statisticians have followed up on Lott's work and have found it flawed.

Lott's thesis is that populations with greater access to firearms are better able to deter crime. Some scholars have quarreled with Lott's interpretation, but this controversy is about underlying data. One of Michael Bellesiles' principal critics, a Northwestern law professor named James Lindgren among others want to know where Lott got the evidence to support the following sentence, which appears on Page 3 of Lott's book: "98 percent of the time that people use guns defensively, they merely have to brandish a weapon to break off an attack."

Initially, Lott sourced the 98 percent figure to "national surveys." That's how the first edition of More Guns, Less Crime put it. In an August 1998 op-ed for the Chicago Tribune, Lott appeared to cite three specific surveys:

Polls by the Los Angeles Times, Gallup and Peter Hart Research Associates show that there are at least 760,000, and possibly as many as 3.6 million, defensive uses of guns per year. In 98 percent of the cases, such polls show, people simply brandish the weapon to stop an attack.

But polls by the Los Angeles Times, Gallup, and Peter Hart show no such thing.

Alternatively, Lott would sometimes attribute the 98 percent figure to Gary Kleck, a criminologist at Florida State University. In a February 2000 op-ed for Colorado's Independence Institute, Lott wrote: "Kleck's study of defensive gun uses found that ninety-eight percent of the time simply brandishing the weapon is sufficient to stop an attack." But Kleck's research shows no such thing.

Eventually, Lott settled on yet another source for the 98 percent figure: "a national survey that I conducted," as Lott put it in a second edition of More Guns, Less Crime. When asked about the survey, Lott now says it was done by telephone in 1997 and that the data was lost a few months later in a computer crash.

Lott's conflicting explanations naturally attracted suspicion, first from Otis Dudley Duncan, a retired sociologist at the University of California, San Diego, who wrote an article on the matter for the Criminologist, and eventually from Lindgren, the Bellesiles gumshoe, who has been posting his findings online. When Lott was asked about the serial attributions to "national surveys," to three specific polls, and to Kleck, Lott conceded, "A lot of those discussions could have been written more clearly."

Lott has said that he lost all his data for the book in a computer crash and had to reconstruct it, but that he couldn't reconstruct the survey. Lott has been able to produce witnesses who remember him talking about this obviously traumatic event soon after it occurred. But none of these people specifically remember him talking about losing data for a survey he'd conducted. Nor has Lott been able to produce the names of the college students he says conducted the phone surveys in Chicago, where Lott was teaching at the time.

As I like to say, if Lott had shown that guns produced more crime, he would have had a Michael Bellesisles style roasting. On the other hand, Lott's work is pure crap, yet it is still cited by the RKBA crowd.

I like how one commentator said that people who believe Lott and Kleck (another discredited researcher) are predisposed to want to believe that muck. No contrary evidence will change their minds. Which is pretty true, because the RKBA arguments don't survive scrutiny if you have an open mind.

That is the major problem in the gun debate is that there is too much taken in faith by the RKBA crowd, and like most believers, they don't have faith strong enough to research the data and sources they use. They prefer to use what buttresses their argument, even if that is incorrect, rather than test their faith.

On the other hand, the empirical data shows that more guns and easy access to firearms is what is behind the soaring toll of gun violence in the United States. Something must be done about it. Gun policy cannot be determined by flawed statistics when raw data shows the actual toll of gun violence in terms of money spent on treating the victims of gun crime and the cost of processing the perpetrators (if they live) through the criminal justice system.

Whether that is the Justices of the Supreme Court following stare decisis in District of Columbia v. Heller 07-290, or politicians saying that gun rights are illusory since the Second Amendment is only to protect us from standing armies.

Another mass shooting!

I want to get away from the Second Amendment and gun control rubbish, but yet another shooting happened at a West Palm Beach, Florida Wendy's where two people are dead and five are injured.

Florida is a shall issue state, which according to John Lott means that stuff like this shouldn't happen, as it shouldn't have happened at Virginia Tech.

Of course, the "RKBA" crowd will start screaming for yet more guns when more guns is the problem.

The RKBA crowd wants to drown out songs like Cheryl Wheeler's "If it were Up to me" that has the line "If it were up to me, I'd take away the guns." They don't want people to realise that something needs to be done about the uncontrolled proliferation of firearms. There is too much talk about "gun rights" and none about gun responsibilities.

Of course, there is no such thing as "gun rights", but the politicians are too cowardly to say that. And they are even more cowardly to not bring up gun responsibilities when the term "gun rights" is used.

RKBA folk like to say that cars, cigarettes, alcohol, and so are cause more deaths than do guns. the problem with that argument is that cars are useful. I would argue that we should wean the US from its cars in favour of mass transit, but cars are useful. On the other hand, I have to be taught to drive, licenced, insured, and my car is registered. I can't just get a car and drive it. I am also expected to drive responsibly or I can get hammered civilly and criminally.

I have the freedom to write and post this on the internet. Maybe people will read what I write and see that there are people who are frustrated by this lack of responsibility on the part of people who scream for their "rights". Maybe more of us will link up and work to vote for real change.

Maybe we will begin to see leadership in the media who pander to this talk of gun rights, yet don't do what they can to show that this is a myth, like John Lott's statistics.