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Right to Keep and Bear Arms-(updates)
Josey1
Member Posts: 9,598 ✭✭
Ashcroft right on target
Cal Thomas
Gun control advocates are upset over Attorney General John Ashcroft's declaration last week, outlined in a legal brief before the Supreme Court, that the Second Amendment to the Constitution protects an individual's right to keep and bear arms irrespective of any ties to a state militia.
Editorials in the New York Times and The Washington Post denounced Mr. Ashcroft as flying in the face of history and legal precedent. In fact, Mr. Ashcroft has the law and history on his side. Both have recognized not only an individual's right to keep and bear arms as a last defense against government tyranny, but in many cases, states have required citizens to own guns to protect their freedoms and deter criminals.
A reading of the Federalist papers, in which James Madison, Alexander Hamilton and John Jay expand on the meaning of the Constitution, shows that the militia the Second Amendment refers to was to be comprised of armed private citizens. Madison wrote in Federalist Paper 46 that an armed citizen "forms a barrier against the enterprise of ambition," which the Founders understood from history and their "British oppressors" to be overreaching government.
In debate over the Constitution, Samuel Adams sought a guarantee in the Bill of Rights that "The said Constitution shall never be construed to authorize Congress to prevent the people of the United States who are peaceable citizens from keeping their own arms." At the Virginia Constitutional Convention, George Mason said Britain had plotted "to disarm the people - that was the best and most effective way to enslave them," while Patrick Henry noted, "The great object is that every man be armed. Everyone who is able may have a gun."
Richard Henry Lee, a signer of the Declaration of Independence, proposed that "to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them."
Many believe the National Guard is the same as a state militia - a reserve force trained at federal expense for immediate service in the event of an emergency. But the militia of which the Founders spoke was something entirely different. They viewed an armed citizenry that could be mustered into a fighting force or used to defend the rights and property of the individual as a last defense against those who would deny such rights.
In 1982, the U.S. Senate Subcommittee on the Constitution published a carefully documented report on "The Right to Keep and Bear Arms," including a history of events leading to passage of the Second Amendment.
"The right to keep and bear arms as a part of English and American law antedates not only the Constitution, but also the discovery of firearms," the report notes. "Under the laws of Alfred the Great, whose reign began in 872 A.D. all English citizens from the nobility to the peasants were obliged to privately purchase weapons and be available for military duty. This was in sharp contrast to the feudal system as it evolved in Europe, under which armament and military duties were concentrated in the nobility." While many English rights were "abridged" over the centuries, the right to bear arms was mostly retained.
In 1623, Virginia forbade colonists to travel unless they were "well armed." In 1631, Virginians were required to engage in target practice on Sunday and "bring their peeces [sic] to church." By 1658, every Virginian was to have a firearm at home, and in 1673 state law said a citizen who claimed he was too poor to buy a gun "could have one purchased for him by the government, which would then require him to pay a reasonable price when able to do so."
When Britain began to increase its military presence in the Colonies, Massachusetts called on its citizens to arm themselves. One Colonial newspaper argued that this was legal, citing Blackstone's commentaries on English law, which listed "having and using arms for self-preservation and defense" among the "absolute rights of individuals."
When New Hampshire cast the ninth vote needed for passage of the Constitution, it called for a Bill of Rights including the provision that "Congress shall never disarm any citizen unless such as are or have been in actual rebellion." The focus was on the lawbreaker, not the law-abiding gun owner, who was seen as a defender of individual liberty and national freedom.
There is much more documented in the 1982 report (available through the Government Printing Office or at www.constitution.org/mil/rkba1982.htm01). Every citizen should read and study it, including editorial writers and the Supreme Court. Hard-won rights are not easily restored once they've been surrendered.
http://www.washtimes.com/commentary/20020519-41953362.htm
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
Edited by - Josey1 on 05/21/2002 07:34:23
Cal Thomas
Gun control advocates are upset over Attorney General John Ashcroft's declaration last week, outlined in a legal brief before the Supreme Court, that the Second Amendment to the Constitution protects an individual's right to keep and bear arms irrespective of any ties to a state militia.
Editorials in the New York Times and The Washington Post denounced Mr. Ashcroft as flying in the face of history and legal precedent. In fact, Mr. Ashcroft has the law and history on his side. Both have recognized not only an individual's right to keep and bear arms as a last defense against government tyranny, but in many cases, states have required citizens to own guns to protect their freedoms and deter criminals.
A reading of the Federalist papers, in which James Madison, Alexander Hamilton and John Jay expand on the meaning of the Constitution, shows that the militia the Second Amendment refers to was to be comprised of armed private citizens. Madison wrote in Federalist Paper 46 that an armed citizen "forms a barrier against the enterprise of ambition," which the Founders understood from history and their "British oppressors" to be overreaching government.
In debate over the Constitution, Samuel Adams sought a guarantee in the Bill of Rights that "The said Constitution shall never be construed to authorize Congress to prevent the people of the United States who are peaceable citizens from keeping their own arms." At the Virginia Constitutional Convention, George Mason said Britain had plotted "to disarm the people - that was the best and most effective way to enslave them," while Patrick Henry noted, "The great object is that every man be armed. Everyone who is able may have a gun."
Richard Henry Lee, a signer of the Declaration of Independence, proposed that "to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them."
Many believe the National Guard is the same as a state militia - a reserve force trained at federal expense for immediate service in the event of an emergency. But the militia of which the Founders spoke was something entirely different. They viewed an armed citizenry that could be mustered into a fighting force or used to defend the rights and property of the individual as a last defense against those who would deny such rights.
In 1982, the U.S. Senate Subcommittee on the Constitution published a carefully documented report on "The Right to Keep and Bear Arms," including a history of events leading to passage of the Second Amendment.
"The right to keep and bear arms as a part of English and American law antedates not only the Constitution, but also the discovery of firearms," the report notes. "Under the laws of Alfred the Great, whose reign began in 872 A.D. all English citizens from the nobility to the peasants were obliged to privately purchase weapons and be available for military duty. This was in sharp contrast to the feudal system as it evolved in Europe, under which armament and military duties were concentrated in the nobility." While many English rights were "abridged" over the centuries, the right to bear arms was mostly retained.
In 1623, Virginia forbade colonists to travel unless they were "well armed." In 1631, Virginians were required to engage in target practice on Sunday and "bring their peeces [sic] to church." By 1658, every Virginian was to have a firearm at home, and in 1673 state law said a citizen who claimed he was too poor to buy a gun "could have one purchased for him by the government, which would then require him to pay a reasonable price when able to do so."
When Britain began to increase its military presence in the Colonies, Massachusetts called on its citizens to arm themselves. One Colonial newspaper argued that this was legal, citing Blackstone's commentaries on English law, which listed "having and using arms for self-preservation and defense" among the "absolute rights of individuals."
When New Hampshire cast the ninth vote needed for passage of the Constitution, it called for a Bill of Rights including the provision that "Congress shall never disarm any citizen unless such as are or have been in actual rebellion." The focus was on the lawbreaker, not the law-abiding gun owner, who was seen as a defender of individual liberty and national freedom.
There is much more documented in the 1982 report (available through the Government Printing Office or at www.constitution.org/mil/rkba1982.htm01). Every citizen should read and study it, including editorial writers and the Supreme Court. Hard-won rights are not easily restored once they've been surrendered.
http://www.washtimes.com/commentary/20020519-41953362.htm
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
Edited by - Josey1 on 05/21/2002 07:34:23
Comments
Saturday, May 18, 2002
EDITORIAL & COMMENT 13A
Contrary to the assertions of the Tuesday Dispatch editorial "The NRA way,'' Attorney General John Ashcroft and the U.S. Justice Department are not engaged in a radical "reinterpretation'' of the Second Amendment by endorsing the view that the right to keep and bear arms belongs to "the people'' individually and not to the states.
The individual-rights view of the Second Amendment is not peculiar to the National Rifle Association, as the editorial suggested. Rather, it is the correct view, the view held by virtually all constitutional scholars throughout American history.
The two leading constitutional-law commentators of the 19th century, Supreme Court Justice Joseph Story in the early 1800s and Michigan Supreme Court Justice Thomas Cooley in the late 1800s, both took the view that the right belongs to the citizens, not the states.
Indeed, they understood that the text of the Second Amendment means exactly what it says: "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.''
The right belongs to the people; it is as individual a right as the Fourth Amendment "right of the people to be secure . . . against unreasonable searches and seizures'' or the First Amendment "right of the people peaceably to assemble, and to petition the government for a redress of grievances.''
The reference to the militia only reaffirms the individual-rights view, as UCLA law professor Eugene Volokh has noted in the May 10 Wall Street Journal column "The Radical Amendment'': "From the Militia Act of 1792 to the current Militia Act (enacted in 1956), the 'militia' has meant pretty much the adult able-bodied male citizenry age 17 to 45. After the Supreme Court's sex equality decisions of the 1970s, it almost certainly includes women, too.
"The two clauses (of the Second Amendment) both stress the Framers' commitment to keeping the citizenry -- not the states or small state-selected groups -- armed.''
A virtual consensus of constitutional historians and legal scholars today -- including not only conservatives, but also such left- liberals as Harvard law professor Laurence Tribe and libertarians, such as Boston University law professor Randy Barnett -- agree that the individual-rights view, not the states'-rights view, is the correct interpretation of the Second Amendment.
The aberration is not the Bush Justice Department but rather the U.S. Supreme Court, which in its 1939 decision in United States vs. Miller held that the Second Amendment right extends only to arms that are related to the militia.
In following the states'-right view suggested by the Miller decision, federal courts over the past 60 years have perpetuated an erroneous interpretation of the Constitution from an era in which the U.S. Supreme Court was notoriously insensitive to individual rights. (The infamous Korematsu decision, upholding the Roosevelt administration's order confining Japanese Americans to concentration camps, came just a few years after Miller.)
The Bush Justice Department may be going against the views of past Justice Departments and of most federal courts of appeals, which have endorsed the states'-rights view of the Second Amendment. But as Volokh noted, "Attorney General Ashcroft and Solicitor General Olson are hardly promoting their personal views. They're promoting the views of the Framers, and of the American legal system throughout most of American history.''
David N. Mayer
Professor of law and history
Capital University Law School
Columbus http://libpub.dispatch.com/cgi-bin/documentv1?DBLIST=cd02&DOCNUM=21432&TERMV=328:8:53006:8:
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
Gun ownership rights belong to individuals
By Sheldon Richman
COMMENTARY
IF YOU WANT insight into the mentality of the intellectual elite, observe the hysterical reaction to the Bush administration's declaration that the right to keep and bear arms is -- horror! -- an individual right.
In two U.S. Supreme Court briefs filed by the Justice Department on May 6, Solicitor General Theodore Olson wrote: "(The) current position of the United States is that the Second Amendment more broadly protects the rights of individuals ... to possess and bear their own firearms."
What is so outrageous about this? True, this has not been the government's position for the last several decades. But that doesn't make it invalid. Maybe the former position, that the Second Amendment refers to the states' right to arm their national guards, was wrong.
You'd think Olson and Attorney General John Ashcroft had just legalized the mugging of old ladies. According to Michael Barnes, president of the Brady Center to Prevent Gun Violence, "This action is proof positive that the worst fears about Attorney General Ashcroft have come true: His extreme ideology on guns has now become government policy."
Is he kidding? It's extreme to believe that rights belong to individuals? If that's extreme, the Declaration of Independence must be the most extreme document ever written.
Barnes' organization continued: "The department's new policy weakens the federal government's defense of gun laws ..." (Unfortunately, it doesn't. The government believes the right may be legally limited.)
This is the real issue for the anti-self-defense lobby. It's not concerned with the soundness of any argument. All that matters is its agenda. Anything that works to restrict and outlaw gun ownership is good. Anything that promotes it is bad. Objectivity and honest discourse are irrelevant -- if not dangerous.
Here's another example. New York Times columnist Bob Herbert is alarmed that the administration's position will put "more guns into the hands of more people." (Surely we all know several hardened criminals who put off buying guns until the Justice Department's position was clear.)
Even if true, that does not prove that the administration's position is wrong. Herbert also claims there was "no need for the government to take a position on the Second Amendment in the two cases for which the briefs were submitted." Even if that's right, so what? The issue is whether Ashcroft and Olson's position on this important issue is valid. But all the anti-gun lobby cares about is its agenda. Truth and falsehood don't matter. That's demagoguery.
If you look objectively, you readily see that Ashcroft and Olson have done nothing radical at all. Obviously, gun rights belong to individuals. There's no one else for them to belong to. And the Supreme Court has never said otherwise. On the contrary, the court has said "the people" in the Bill of Rights means "individuals."
Could a right belong to a collective? What nonsense! A collective is composed of individuals. It can have no right not possessed by its members. What does it mean to say the group has a right if no individual has it? The "collective right" position is absurd.
Bear in mind that the Second Amendment does not say that "the people shall have a right to keep and bear Arms." It says, "the right of the people to keep and bear arms shall not be infringed."
The amendment does not create the right -- it recognizes it. This is important because it puts the amendment's preamble -- "a well regulated Militia being necessary to the security of a free State" -- into perspective. The anti-gun lobby says this means only that states may arm their national guards. But the Framers did not attribute rights to states, only to persons. The one reference to the states in the Bill of Rights is about powers, not rights.
The militia is mentioned in the amendment only to explain that a citizen-based defense (the militia) will be effective only if people know how to use guns, and that proficiency with guns depends on individuals' being free to possess them. Hence, "the right of the people to keep and bear Arms shall not be infringed."
Twisting this right against tyranny into a state power cynically insults the intelligence of every American.
http://www.bayarea.com/mld/bayarea/news/3294626.htm
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
by Robert W. Lee
"... the right of the people to keep and bear Arms, shall not be infringed."
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Real-life Law and Order
Shortly after 9:00 p.m. on March 30th, Asize Lee Coady, 73, and boyfriend Odie Harper, 63, were watching the television program Law and Order at Coady's home in Memphis, Tennessee, when someone knocked at the door. Coady went to see who it was, with Harper close behind. But as they approached the door two men burst through yelling, "Police, police, get down!" Coady fell to the floor but was able to hand a gun to Harper. He fired a single shot at the intruders. One escaped, but the other, identified by police as Corey Cezaer, 22, was found dead on the driveway.
Coady and Harper knew both men. The April 2nd Memphis Commercial Appeal quoted Harper as saying, "We've known these boys since they were babies. It is a sad thing because we saw them all the time and know their folks." He had no idea why they chose the Coady residence, or what they were after. Harper lamented, "I didn't want to shoot anyone, but when I saw her [Coady] down, I fired." He also told the Commercial Appeal that "it was like something from Law and Order."
Targeting the Elderly
For much of this year, Dentsville, Alabama, resident Arlo Gilliam, 65, has been ill. When he heard a knock at his door on March 11th, he thought it was his son coming to help care for him. Instead, when he opened the door a man pressed a gun to his stomach and ordered him to lay face-down on a couch. Gilliam complied, after which the armed intruder called to several accomplices who also entered the residence. They ransacked Gilliam's bedroom and left with, among other things, five guns. The thugs were believed part of a home-invasion ring specializing in elderly victims who presumably cannot fight back. Fortunately, Gilliam was unharmed.
A few days later, Dentsville resident Bobby Drum, 68, and wife, Dorothy, 64, heard someone breaking into their home through a screen door. Mr. Drum hurried to a back bedroom, retrieved his Glock 9 mm handgun, and fired a shot that grazed the intruder's neck. The man fled, but later that night detectives arrested Jack Maurice Austin, 18, when the wounded suspect called for help and claimed that he had been shot in the neck while walking to a friend's home.
On March 29th, detectives also charged four other teens suspected of being involved in the home-invasion ring. Eddie Washington, 17, and Bryan Darnell Lake, 18, are believed to have been accomplices of Austin at the Drum home. They and Jason David Evans, 17, and Curtis Walton Jr., 18, are suspects in the March 11th robbery of the Gilliam residence.
Richland County Sheriff Leon Lott told staff reporter Lora Hines of Columbia, South Carolina's The State newspaper that "Mr. Drum is a hero. He probably not only saved his wife and his life, but the lives of other people as well." The sheriff speculated that if Austin "had not been shot by Mr. Drum," the gang would still be doing home invasions.
Guilt by Association
At around 10:00 a.m. on April 3rd, a homeowner in Kansas City, Missouri, heard noises in the basement of his one-story house. Grabbing a .38-caliber handgun from under his bed, he went to investigate. According to police, he encountered a youth in the kitchen and asked what he was doing there. The burglar, subsequently identified as Victor Fuentes, 18, held an object in his left hand which the homeowner thought was a weapon - later determined to be a walkie-talkie. When Fuentes began to raise his hands, the homeowner fired at least twice. Mortally wounded, Fuentes stumbled toward a door and collapsed. He was pronounced dead at a local hospital.
The homeowner, whose identity was not released, also noticed another man in a white coat standing outside the house. The accomplice ran to a car and drove away, but police later apprehended him at his home. On April 4th, Jackson County prosecutors charged James M. Evans, 17, with burglary and felony murder. Missouri law authorizes prosecution for murder when a person participates in a felony that results in someone's (including an accomplice's) death.
Digging His Own Grave
Robert Littleton, 30, was visiting George Teague, 60, at the latter's home in Birmingham, Alabama, on March 28th when some sort of dispute arose. Littleton was asked to leave. Although he complied, he returned shortly after 6 p.m. with a friend. The two charged into the Teague home, where one (presumably Littleton) hit Teague with a shovel or similar implement. Bleeding profusely from a head wound, Teague grabbed a shotgun and fired a blast that struck Littleton, who died en route to a hospital. The other man escaped, but police eventually arrested a suspect. Teague was reported in satisfactory condition following treatment at a local medical center.
Failure to Learn a Lesson
On March 15th, Willis Brown, 44, attempted to rob Zipp's Deli, a convenience store in Muncie, Indiana. Claiming to have a gun in his jacket, he demanded money. The clerk complied, then pulled a gun of his own and fired five shots, at least one of which struck Brown.
The wounded bandit fled with some cash, but police found him minutes later in a nearby house. The money was recovered, and Brown was charged with armed robbery while undergoing treatment for his wounds at a local hospital.
It was not his first offense. In 1982, he was sentenced to six years in prison for burglary. In September 1991, he was convicted of robbing a pizza restaurant and sentenced to a maximum of 20 years in prison. According to the Indiana Department of Corrections, he was released in May of last year.
Scare Tactics
Late in the evening of March 26th, two men entered Our House Restaurant in Selma, Alabama, when owner Bernice Gill and a cleaning lady were the only ones present.
Gill later recalled for the March 28th Selma Times-Journal that "one of them basically asked me for money, and then we got into a pushing match. Then he suddenly pulled out what looked like a small pistol." She did not know if the gun was real. "It sort of looked like a toy gun," she told Times-Journal reporter Sajit Abraham, "but I really couldn't tell."
Gill screamed, which alerted the cleaning lady that something was wrong. "She came out and yelled, `I'll be right back, just let me get my gun.'" That was enough. The two thugs promptly fled, empty-handed.
http://www.thenewamerican.com/tna/2002/05-20-2002/vo18no10_right.htm
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878