Do We Need More Second Amendment "Judicial Activism"?
Monday May 1, 2006
Category: Gun Control
Amy Hess blogged last Friday on the Second Amendment and what she believes it means, relating it to her experiences hanging out with the police chief of a midsize town of 180,000--which is almost exactly the same size as my home town of Jackson, Mississippi. The gist of her blog post seems to be that guns aren't dangerous in the hands of trained law-abiding citizens, but need to be kept out of the hands of untrained citizens and criminals.
I suspect she might agree with Ben Allen. Ben, the only Republican member of the Jackson City Council, said this in a 2004 interview:
I've been writing about this issue, off and on, ever since I took on the site. Know who hasn't been writing about this issue? The U.S. Supreme Court. Their first, last, and only significant Second Amendment ruling, U.S. v. Miller, was handed down in 1939--almost 70 years ago. They aren't saying that the Second Amendment does protect individual gun rights, so city and state laws that modestly restrict gun ownership continue to be approved by federal courts without further appeal. They aren't saying that the Second Amendment doesn't protect gun rights, so legislators are reticent to pass gun control laws. It is the Supreme Court's job to address Constitutional questions, and this Constitutional question remains unanswered. What we have instead is an uneasy tension that feels like the calm before a storm. As the old Western cliche goes: It's quiet. Too quiet.
See also:
Amy Hess blogged last Friday on the Second Amendment and what she believes it means, relating it to her experiences hanging out with the police chief of a midsize town of 180,000--which is almost exactly the same size as my home town of Jackson, Mississippi. The gist of her blog post seems to be that guns aren't dangerous in the hands of trained law-abiding citizens, but need to be kept out of the hands of untrained citizens and criminals.
I suspect she might agree with Ben Allen. Ben, the only Republican member of the Jackson City Council, said this in a 2004 interview:
Let me give you a scenario: You are in downtown Jackson, you walk out of a restaurant, coming around the corner, you hear a real loud car, playing real loud music, the windows are tinted, it’s belching smoke, you look inside, and you see four individuals there, drinking beer, smoking marijuana with a cocked, loaded, Glock (semiautomatic handgun) on the seat. What of that scene is legal? The gun. It’s insane.I'm inclined to agree. The Second Amendment refers to a "well-regulated militia." What kind of well-regulated militia consists of gun owners who don't know how to use their weapons properly? We may not know exactly what the Second Amendment says, but we do know that the Founding Fathers counted themselves among a group of revolutionaries who were so competent with their rifles that they managed to defeat the British army. In my opinion, it would not be at all inconsistent with the letter or spirit of the Second Amendment to regulate the circumstances under which one can own firearms. And a basic part of any firearm regulation standard that acknowledges the "well-regulated militia" clause should be safety training.
Reasonable people want reasonable laws regarding guns. For instance, it is not reasonable for someone to want to buy a bullet where the only purpose in that bullet’s manufacture is to go through a bullet-proof vest. But there are those of certain organizations that believe if they stop production of that bullet that will pierce a bulletproof vest, then that means a slippery slope is started. The next thing we know, they are going to make guns and we won’t be able to hunt. There has got to be some reason within this talk. Kids today are getting thrown out of school for flashing guns at each other at nightclubs. Football players are losing scholarships. Now, outlawing guns is not the answer, but honestly I do believe that you should be required to pass a gun safety test. You shouldn’t be able to go buy a gun and say, “OK, here is my gun, bam bam.” It’s just like a driver’s license: You can’t jump in a car and drive, you can’t fly a plane, and you cannot even go on the dad-gum lake driving a boat without some type of restrictions and requirements. It doesn’t mean I am some anti-gun nut; it just means what we’ve got now is not working.
I've been writing about this issue, off and on, ever since I took on the site. Know who hasn't been writing about this issue? The U.S. Supreme Court. Their first, last, and only significant Second Amendment ruling, U.S. v. Miller, was handed down in 1939--almost 70 years ago. They aren't saying that the Second Amendment does protect individual gun rights, so city and state laws that modestly restrict gun ownership continue to be approved by federal courts without further appeal. They aren't saying that the Second Amendment doesn't protect gun rights, so legislators are reticent to pass gun control laws. It is the Supreme Court's job to address Constitutional questions, and this Constitutional question remains unanswered. What we have instead is an uneasy tension that feels like the calm before a storm. As the old Western cliche goes: It's quiet. Too quiet.
See also:
Comments
You are incorrect about the SCOTUS not writing about the Second Amendment since Miller. See http://tinyurl.com/mfa7k for a summary of findings from an investigation into that exact question.
Secondly, Mr. Allen was apparently ignorant of Mississippi state laws which make it illegal for someone to possess a gun when in possession of or under the influence of drugs. See Mississippi’s code for details: http://tinyurl.com/q7afg.
If the argument could be made that the weapon was (at least partially) concealed, this section http://tinyurl.com/rnzas applies as well.
The 2nd Amendment is not hard to read. Consider the following variant, which I did not write and do not know the original author:
A well educated electorate, being necessary to the security of a free State, the right of the people to keep and read books, shall not be infringed.
It’s gramatically indentical. Who gets to keep and read books?
The Second Amendment is very easy to understand. Consider the preamble to the Bill of Rights:
“The Conventions of a number of the States having, at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further DECLARATORY and RESTRICTIVE clauses should be added, and as extending the ground of PUBLIC CONFIDENCE in the Government will BEST INSURE the BENEFICENT ends of its institution;
“Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring, that the following articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States; all or any of which articles, when ratified by three-fourths of the said Legislatures, TO BE VALID TO ALL INTENTS AND PURPOSES as part of the said Constitution, namely:”
(Source: http://gunshowonthenet.com/BillOfRights.htm)
Then look at the Second Amendment itself:
Amendment II
“A well regulated militia being necessary to the security of a free state, (Declaratory clause)
the right of the people to keep and bear arms, shall not be infringed.”
(Restrictive clause)
The following page gives a comprehensive summary on the Individual Right and the exact intentions of the Framers in enumerating it:
http://gunshowonthenet.com/SecondAmend/TheRight.html
Perhaps this might help:
http://gunshowonthenet.com/SecondAmend/TheRight.html
I agree completely.
That’s why gun education should be mandatory in all public and private elementary, middle and high schools. Gym class should introduce kids to the shooting sports as well as soccer and volleyball.
Gun safety training should be offered free of charge for any who want it (paid for, of course, by those “gun safety organizations” that are so concerned about untrained citizens with access to guns). National Guard posts should organize “civilian training days” to introduce all willing, capable American adults to small unit tactics and military weapons.
The only problem is, once these common sense measures…oops, I forgot to use the current buzzword: “rational” measures are in place and everyone is familiar with safe gun handling and the militia truly IS “well-regulated”, one of the favorite EXCUSES of the “gun safety” lobby to limit access to guns will evaporate.
By the way: in the scenario presented by the good Mr. Allen, I’m no lawyer, but my understanding is that possession of the gun is NOT legal because the individuals are armed in the commission of other crimes. In fact, possession of the gun in that situation would, in all probability, subject them to federal gun charges as well as the local and state charges. His point is specious and unfounded.
For someone who writes about civil liberties, Tom is unbelieveably uninformed. Reading this piece of tripe made me laugh so hard I fell out of my chair. Tom, you are so wrong I don’t have the time or inclination to go over it with you. Just more nonsense from someone pretending to be an American.
OK – OK!
A few distinct points.
Bullet Proof vests are not! They are correctly called and function as Body Armor. Anyone who believes they are bullet proof is completly uninformed.
Body armor is designed to protect against certain types of threats.
Body armor for military, police, corrections officers and bomb squad members are all different in form, fit and function.
While it is seductive in thought about registering (key word here) and licensing all gun owners, the Founding Fathers and current gun owners are against this type of registration due in part to putting the possibility of gun confiscation within the reach of government. Wouldn’t happen here? I think it could as it has already been done elsewhwere in the world and has actually appened on numerous occassions in California and oter states such as New Orleans after Katrina.
Drivers Licenses: While the overall affect was to create a safe environment on the road, a couple of things have been breached. A taxpayer’s Right to access all roads, water and airways paid for by his / her taxes. The ONLY way to now exercise that right is by a registered third party (bus, taxi, airlines or other commercial transportation). A drivers license is considered by the state as a “privaledge” that makes the individual right to freely access these public works as a fee-based proposition that is acceptable to the state.
To keep local militias from organizing, many states have made such organizations or the training of any non-state approved para-military groups to be illegal! State of California (and others) have approved militias: California Militia and California Naval Militia. I would point out that these are State Organized militias. There is no state provision for an unorganized militia, which is also part of the Founding Father’s original intent. Problem with these sate approved militias is that they do not train as the state provides no funding and specifically prohibits training. So, if you are banking that a group of “well-regulated” (trained) militia could be readily called up by the state to provide relief in case of a local disaster, you would be left wanting. Ca Naval Militia has been transformed into a social group for lawyers out of San Francisco. The last CA militia group that I know of that was organized and called forth was a group called up to help with the L.A. riots. That group has since disbanded due to the high cost of maintenance born by the individual and the restrictions on training. Cost to an individual to join, while free, uniforms, boots etc. would cost upwards of $2k the first year and more as meetings and the little training they could do, still cost about that much in a year.
The next proposal I would expect to see on this forum would be a discussion on 1st Amendment licenses so that we would know that the writer actually knew enough about the topic to carry on an intelligent discussion. Meaning, we would no longer be allowed to write about what we know little about. The state would generate a qualifications list, testing and licensing procedures and fees.
Note: Anyone walking into a gun store and asking for a box of armor piercing bullets would be labeled an idiot, less than honest and up to no good. Kind of like a drunk walking into a bar and asking for a glass of 150 proof booze. The business and other licenses of that establishment is now at risk if anything is sold to this individual. I personally would call the police right before I asked you to leave.
There’s a plain and simple – and clearly constitutional – method for dealing with the problem of law-abiding-but-untrained gun owners.
Mandatory gun training.
Congress has full authority to require everyone to receive firearm safety training. Teach it in the schools.
Tom- I agree with one of the previous posters: you are so wrong I don’t know where to begin.
No– actually, begin here: Read Jeff Snyder’s collection of essays in the book “Nation of Cowards”. I guarantee, you will never be the same.
–Patrick
Mac Saylor said – “Note: Anyone walking into a gun store and asking for a box of armor piercing bullets would be labeled an idiot, less than honest and up to no good. Kind of like a drunk walking into a bar and asking for a glass of 150 proof booze. The business and other licenses of that establishment is now at risk if anything is sold to this individual. I personally would call the police right before I asked you to leave.”
Yeah, according to perverse laws that have passed. he would be guilty of violating a PERVERSE law. However ORIGINAL INTENT was that We The People be LIKE ARMED, as We The People. are part of the UNORGANIZED MILITIA;
UNITED STATES CODE
Title 10, Subtitle A, Part I, Chapter 13, § 311
Militia: composition and classes
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are –
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are NOT members of the National Guard or the Naval Militia.
The People have the Right to be LIKE ARMED as the Organized Militia and the standing Army. Because they are THE LAST DEFENSE against the Army or Organized Militia whom have been employed by an USURPING Government.
WITNESS:
“Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.” – Alexander Hamilton, Federalist No. 29
“A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from ANY who might attempt to ABUSE them, which would include their OWN GOVERNMENT.” – President George Washington – Speech of Jan. 7, 1790, in the Boston Independent Chronicle, Jan. 14, 1790
“Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.” – James Madison, Federalist No. 46
“I. Natural Rights of the Colonists as Men.
“Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and DEFEND THEM IN THE BEST MANNER THEY CAN. These are evident
branches of, rather than deductions from, the DUTY OF SELF-PRESERVATION, commonly called the FIRST LAW OF NATURE.” – Samuel Adams, The Rights of the Colonists
“The RIGHT OF SELF-DEFENSE IS THE FIRST LAW OF NATURE; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”
- St. George Tucker, Blackstone’s Commentaries (1803)
“They ought to be restrained Within proper bounds. With respect to the freedom of the press, I need say nothing; for it is hoped that the gentlemen who shall compose Congress will take care to infringe as little as possible the rights of human nature. This will result from their integrity. They should, from prudence, abstain from violating the rights of their constituents. They are not, however, expressly restrained. But whether they will INTERMEDDLE with that PALLADIUM of our liberties or not, I leave you to determine.” – Patrick Henry, Virginia Ratifying Convention, (06/16/1788)
“The militia is the natural defense of a free country against sudden foreign invasions, domestic insurrections, and domestic Usurpation of Power by rulers. The Right of the Citizens to Keep and Bear Arms has JUSTLY been considered, as the PALLADIUM of the LIBERTIES of The Republic; since it offers a strong moral check AGAINST the Usurpation and Arbitrary Power of rulers; and will generally…ENABLE the PEOPLE to RESIST and TRIUMPH OVER THEM.” – Joseph Story, Supreme Court Justice, Commentaries on the Constitution of the United States, p. 3:746-7, 1833
“The right of the people to keep and bear arms shall not be infringed, and this without ANY qualification as to their condition or degree, as is the case in the British government.”
- St. George Tucker, Blackstone’s Commentaries (1803)
The RIGHT of the People to Keep and Bear Arms Shall NOT be Infringed!
Jeff Dege SAID – “Mandatory gun training.” “Congress has full authority to require everyone to receive firearm safety training.”
Congress has NO SUCH AUTHORITY. Witness:
The Second Amendment has two clauses; the Declaratory clause, (A well regulated militia…), and the RESTRICTIVE clause, (THE RIGHT OF THE PEOPLE…). Congress was given power over the Declaratory clause. NO ONE WAS GIVEN POWER OVER THE RESTRICTIVE CLAUSE – HENCE THE USE OF THE WORD RESTRICTIVE. As PROVEN in the preamble to the Bill of Rights:
“The Conventions of a number of the States having, at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution;
“Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring, that the following articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States; all or any of which articles, when ratified by three-fourths of the said Legislatures, to be valid to all intents and purposes as part of the said Constitution, namely:”
One can only surmise that the intent of the Framers in enumerating both into the same Amendment. Was that personal defense was to be closely related to the defense of the community as a whole, (UNITY in the common cause of defense). Which would be in line with many of the Framers quotations.
The ONLY reference to ‘training’, (NOT discounting the necessity of it, BTW, for TRAINING IS a NECESSITY):
“Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.” – Alexander Hamilton, Federalist No. 29
The only other reference that might be construed as ‘training’ is:
“To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men CHOSEN FROM AMONG THEMSELVES…” – James Madison, Federalist No. 46
Does it follow to reason that the tool intended as the LAST DEFENSE to put down an Usurping government, be exclusively under the control of the very government it was intended to put down in the event of usurpation? Hardly. Do YOU trust government to get it right? Consider the illegal alien fiasco and our wide-open borders!
The states/congress is given power over the ORGANIZED MILITIA. They have NO DELEGATED AUTHORITY WHATSOEVER over the UNORGANIZED MILITIA or the general population of free citizenry capable of bearing arms. It is up to We The People to chose the ones to train us. We have already G.O.A., J.P.F.O., N.R.A., S.A.F. and others. The foundation is already set up, we just need to utilize it correctly.
“Well-regulated militia” also assumes a proper militia exists. As far as I know, there is not one civilian military unit in the U.S. It’s not the National Guard–trained, equipped, and paid by the Federal government–and it is certainly not a local police force. 10 USC 311 defines the unorganized militia, but there has not been an attempt since 1903 to train any of us ordinary non-government civilians in the black arts of war.
And “well-regulated” training is not just learning how to load a rifle/pistol and practice basic marksmanship; modern militia training would also include urban warfare training, small unit manuever, and a solid education into guerilla warfare tactics. A local militia unit is not made for overseas military adventures; a militia unit is best for homeland defense and insurgency warfare. Think the Feds or state authorities would appropriate money for that kind of “well-regulated militia” training and education?
‘Thought not, since they don’t really want us to know such things. Which sort of makes the “well-regulated by issuing some sort of license” argument an outright sham.
We’re onto you; nice try, however.
Poshboy –
Very good points! Since gov. obviously will NOT fulfill its duty. And, is in fact doing its level best in SUBVERTING and UNDERMINING the ORIGINAL INTENT. Then it would behove US, We The People, to do it ourselves. We must form small groups of citizens across the country. United in the common cause of the preservation of our OWN Freedom and Liberty.
It would do us well to consider our choices very wisely at the ballot box in 2006 and 2008. We must get patriots into office. People that understand and will abide by the maxim of ‘PUBLIC SERVANT’. This will involve finding people with INTEGRITY and HONOR.
Gov is NOT our ‘master’, they are our SERVANTS.
What sheer rubbish! A gun in possession of
a marijuana smoker is a crime, a federal crime.
Every single hunting rifle will
penetrate a police officers ballistic vest.
Whoever wrote that garbage should be ashamed of their lack of research skills.
The bill of rights ONLY enumerates some of the rights guaranteed by the Constitution. We don’t really need any of the bill of rights. Regards the example of the guys in the car with tinted windows etc. What behaviors should be illegal? None of them!! Perhaps the music bothered some. Read the Declaration and understand it! ALL men …unalienable rights. Thats’ correct you don’t have to be a citizen, just human!!
you should look at it that way
Dear Tom,
I have read and agreed with many of your pieces. I was the subject of one (see Drug War-Corruption). Like most of the progressive or liberal “left”, you have the Second Amendment simply wrong.
The English is archaic, and most Americans don’t write well anymore. The primary, KEY words are: “…[T]he right of the people to keep and bear arms, shall not be infringed.” This is know as the “restrictive clause”.
The “declaratory clause” is the first part about the “Militia”. See Title 10, U.S. Code, Section 311, concerning the rather large group of people who make up the Militia, organized/unorganized.
Incidentally, “well regulated”, in the 18th century, meant, in this sense, well armed, supplied, and trained.
Further, U.S. v. Miller held, primarily, that the sawed off shotgun (untaxed) involved in the case of the two “moonshiners” (another massive foul up by the gov’t,the 18th Amendment) was not a weapon readily capable of use as a military weapon. As the two did not participate (dead, fled?), the Court merely affirmed the convictions below.
I disagree with that basic premise. I was issued a sawed off, ‘pistol grip’ shotgun by the Army for training as part of a General Officer’s protective detail- although my usual, primary weapon was an M16A1 with 40mm grenade launcher attached. Those would be, under Miller, appropriate, legal militia weapons, suitable for private ownership. Remember, this was written in the 18th century. You owned your own weapons. If you don’t like the 2nd Amendment, try to amend it- or get 38 States to agree to REMOVE it. Right…
Throughout the Bill of Rights, rights belong to the People, that is, the citizens of the United States. It is government (the federal government, and since 1961, the States and their subdivisions, restricted under an application of the 14th Amendment by the Supreme Court, a very left wing, liberal, activist Supreme Court, the Warren Court, by the way) which is restricted from infringing (denying, over regulating, or usurping) those rights which belong to the people. The government, by the very words of the federal Constitution, CANNOT have rights. Only the people have rights. The government is restricted, however, throughout the Constitution. The Founders REALLY distrusted both State and federal governments. Read some of their writings. I know- you would hate “original intent” as a basic concept, due to your political views.
The problem with all liberals and
“progressives” is, at its very root, that they (you?) believe in government. I, as a conservative / libertarian, distrust government, and the bigger and more restrictive the government, the more i distrust it.
IF the people means the people in the 1st, 4th, 5th (”person”), 6th (”the accused”), 9th (the “libs” really hate this Amendment), 10th (ditto this one), and 14th (”persons”, “citizens”) Amendments, as well as the body of the original Constitution, and the “We The People” in the Preamble, and the Courts have regularly given the regular and common English language meaning to the words, “the people”, in all other cases, then the Second Amendment means exactly what it says. The People have a right to keep (own, harbor, possess)and bear (carry) arms. Period. Anyone who disagrees with that simple legal fact, enshrined in our Organic Law, the federal Constitution, deserves neither our votes or our trust, on any level.
I still remember Al Gore, two days before election night, 2000, being brought to tears as he realized he was probably going to lose his own home State, crying out on stage, for the TV cameras, “We are not going to take away your guns. It is all a lie!” His fellow citizens did not believe him then. I cannot believe liberals (democrats, etc.) on this issue, and it cause me great distrust of them on other issues, because if they can be SO wrong on this, then how can I trust them on other things? What was that thing about “God, Guts, and Guns…”? Ah, but we are not supposed to mention God, or “god”, either, right? God forbid…
We were born as a revolutionary country, born in the blood of my forefathers (-my family has been here awhile- sorry, just a little recursive explanatory note). The progressive/left movement seems bound and determined to disarm the American citizenry and this fact (-incidentally, the early “gun control” laws in the 19th century were aimed at black men- pure racism) makes me distrust “the Left” about many other things. On some things we can agree- like drug laws. The Right to vote. The inherent corruption that only the very, very, very rich (George Steinbrenner, Marc Rich) get access to the President to seek “reprieves and pardons”, and the rest of us become lifelong “second class citizens” without that and ALL fundamental rights, if we ever run afoul of “the law”. Of course, the Second Amendment also recognizes a “fundamental right” – of the people.
As an historian as well as a trained lawyer, I am absolutely sure of my facts and what the law SHOULD be in this matter. The National Guard, an arm of the federal Army and the Army of the States, which replaced the old State militias in 1916, is not the only part of the militia. Why does the “Left” want to disarm the American people
/ citizens so fanatically? The Second Amendment is NOT about “duck hunting”. I, more than most of my fellow citizens of whatever political views, know how out of control the federal government can get, and HAS become, for years.
If my government (and my politicans) do not trust me to be armed, than I cannot and do not trust my government, or my politicians. If it was ok for the Army (MP unit) to issue me an M16A1, an XM-203 grenade launcher, pistols, and two types of shotgun, then I can STILL be trusted with arms. The fact that I am no longer in a(n) government issued uniform does not change my love of my country one little bit- even if I do distrust the clowns (of BOTH major parties!) who seem to run it. I remain, most cordially and sincerely, John B. Conroy, B.A., M.A. (Cand.), J.D. (USCS, Senior Customs Inspector [Retired])
J B Conroy – EXCELLENT! Did you used to box as well? You sure know how to land some punches! My hat is off to you…..