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Now More Than Ever?(2nd Amendment articles)
Josey1
Member Posts: 9,598 ✭✭
Now More Than Ever.
William Lolli
CalNRA Contributing Editor
June 21, 2002
I think now more than ever, the US Government is sorely afraid of the 2nd Amendment, and is doing everything it can to run from any collision with it.
But collision is inevitable, and here is why: There was never a better time-now more than ever-when the American people need a practical 2nd Amendment. And the number of American people that are clamoring for a practical 2nd Amendment is growing every day.
This week the US Supreme Court declined to rule on the Emerson case.
Tanya Metaksa properly called the decision to decline "gutless". (See http://www.calnra.org/currents.html for more info.)
The decision to decline leaves the interpretation of the 2nd Amendment in the limbo of conflicting, federal appellate-level appeal rulings-all of which have been upheld in silence from the Supreme Court.
On the one hand we have the last time the Supreme Court made a direct ruling on the interpretation of the 2nd Amendment: the oft-cited United States vs. Miller case. The Miller case, and its popular notion that guns were to be used for the purpose of state militias only, led to 63 years of anti-gun laws, gun bans, gun registration, gun licensing, the formation of the BATF, the re-defining of machine guns, assault guns, sniper guns, Saturday Night Specials, cop killer this-or-that, lawsuits against defensive firearms use by private owners, lawsuits against gun manufacturers, various state and federal court rulings restricting firearm use, transportation and carry, and all manner of other infringements on the individual gun owner.
On the other hand we have the rise of the United States vs. Emerson case, which for the first time in an appellate decision cites the historical background and legal formulation of the fundamental inculcation of the individual's right to bear arms. Add to this appellate ruling serious, senior, legal-scholarship on the history and meaning of the original intent of the 2nd Amendment as created by the Founders. This scholarship being conducted not by wild-eyed gun-nut extremists, but by liberal law professors at Ivy League institutions. Add further a national grass-roots movement, conducted state-by-state over a 10-year period in a direct response to counter a seemingly irreversible national crime wave, ending in the successful passage of shall-issue Concealed Weapons laws. Laws that have had an astounding success record in every state where tried.
And to the shock and surprise of politicians and all in the popular liberal-elite culture; in the wake of September 11, more polls of the American people show that 74% of believe that the 2nd Amendment protects the individual's right to own a gun. And 79% of Americans believe in the arming of commercial pilots.
Okay. So here is the point:
The Executive Branch (state and federal) is running from the 2nd Amendment because they know that to support it is political suicide. But they are caught in the middle because they can't enforce all the anti-gun laws. No one in government wants to sustain the avalanche of PC criticism from the liberal media for taking a pro-RKBA position. Nor can the enforcement branch effectively enforce all of the anti-gun laws, either.
If the NRA mantra "we don't need any more gun laws-just enforce the ones we have on the books" was to be taken to its most logical and realistic conclusion, the Nazi Storm troopers would be conducting house-to-house searches for "illegal guns". Why? Because-there are so many laws on the books now against gun ownership and use, that if they were all to be enforced properly, it would require literal house-to-house enforcement. (Don't believe me? Move to California or New Jersey or New York).
The Legislative Branch (state and federal) is interested in staying in office. They can't repeal the anti-gun laws they passed, because they fear the liberal media as well as an armed populace. They fear the strong, well-funded, liberal special interests that are anti-gun. If you cross them, you don't get re-elected (so they think). Plus they really believe that the destruction of gun ownership will make the world a safer and better place for "the children".
The Judicial Branches (state and federal) honestly don't know what to do. They have the biggest problem of all.
You see, if you took Miller and Emerson and laid out on one big table all of the historical research; and from all this you had to distill a conclusive interpretation of the practical application of the 2nd Amendment in modern 21st century America, the results would shock the world.
Remember that in Miller, the court simply defined the types of guns protected by the Second Amendment. In 1939, the court concluded that the "instrument" (a sawed-off shotgun) was not covered by the Second Amendment, since it was not a military weapon. Here is a direct quote from Miller:
"In the absence of any evidence tending to show that possession or use of a `shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."
Note that the court's conclusion turned solely on the fact that a sawed-off shotgun was not "ordinary military equipment." As Professor Levinson (card-carrying member of the ACLU) said of the decision: "Ironically, Miller can be read to support some of the most extreme anti-gun control arguments, e.g., that the individual citizen has a right to keep and bear bazookas, rocket launchers and ... assault weapons." [See Ann Coulter http://frontpagemag.com/columnists/coulter/2002/ac05-16-02.htm ]
When you add the historical research and the Emerson decision, it becomes no surprise as to why the Supreme Court declined to rule on Emerson:
If they had ruled on Emerson they would have had no choice but to thoroughly and categorically overturn every anti-gun law, every assault-weapon ban, every registration requirement passed in the last 63 years.
Wait A Minute !! I hear you saying. Didn't the courts provide for the proper role of the state to regulate (in law) the private ownership of firearms? Yes that is true. But those regulations and laws over the past 63 years were passed under the false interpretation and application that the state could infringe on the individual's right to own military arms.
Whoops.
So you see, the state and federal governments-in all three branches-are tip-toeing their way quietly around the sleeping bear.
The problem with this strategy of course is that it won't work. It didn't work when the government of all the states tip-toed around the issue of slavery from 1790 to 1860.
All that tip-toeing in those days just made people angrier and angrier. Indeed, despite the fact that from 1800 to 1860 this nation saw and heard the greatest statesmen the world has ever seen; and in spite (or because) of their continued compromises and gutlessness on the issue of slavery, the anger grew to a feverish pitch.
The slaves suffered horribly. And when it was all finally settled, tens of thousands of Americans died.
Tanya Metaksa is right. It was a gutless thing to do. And if the gutless continue to rule this country, we will all suffer for it. http://www.calnra.org/Lolli/wl38.html
"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
William Lolli
CalNRA Contributing Editor
June 21, 2002
I think now more than ever, the US Government is sorely afraid of the 2nd Amendment, and is doing everything it can to run from any collision with it.
But collision is inevitable, and here is why: There was never a better time-now more than ever-when the American people need a practical 2nd Amendment. And the number of American people that are clamoring for a practical 2nd Amendment is growing every day.
This week the US Supreme Court declined to rule on the Emerson case.
Tanya Metaksa properly called the decision to decline "gutless". (See http://www.calnra.org/currents.html for more info.)
The decision to decline leaves the interpretation of the 2nd Amendment in the limbo of conflicting, federal appellate-level appeal rulings-all of which have been upheld in silence from the Supreme Court.
On the one hand we have the last time the Supreme Court made a direct ruling on the interpretation of the 2nd Amendment: the oft-cited United States vs. Miller case. The Miller case, and its popular notion that guns were to be used for the purpose of state militias only, led to 63 years of anti-gun laws, gun bans, gun registration, gun licensing, the formation of the BATF, the re-defining of machine guns, assault guns, sniper guns, Saturday Night Specials, cop killer this-or-that, lawsuits against defensive firearms use by private owners, lawsuits against gun manufacturers, various state and federal court rulings restricting firearm use, transportation and carry, and all manner of other infringements on the individual gun owner.
On the other hand we have the rise of the United States vs. Emerson case, which for the first time in an appellate decision cites the historical background and legal formulation of the fundamental inculcation of the individual's right to bear arms. Add to this appellate ruling serious, senior, legal-scholarship on the history and meaning of the original intent of the 2nd Amendment as created by the Founders. This scholarship being conducted not by wild-eyed gun-nut extremists, but by liberal law professors at Ivy League institutions. Add further a national grass-roots movement, conducted state-by-state over a 10-year period in a direct response to counter a seemingly irreversible national crime wave, ending in the successful passage of shall-issue Concealed Weapons laws. Laws that have had an astounding success record in every state where tried.
And to the shock and surprise of politicians and all in the popular liberal-elite culture; in the wake of September 11, more polls of the American people show that 74% of believe that the 2nd Amendment protects the individual's right to own a gun. And 79% of Americans believe in the arming of commercial pilots.
Okay. So here is the point:
The Executive Branch (state and federal) is running from the 2nd Amendment because they know that to support it is political suicide. But they are caught in the middle because they can't enforce all the anti-gun laws. No one in government wants to sustain the avalanche of PC criticism from the liberal media for taking a pro-RKBA position. Nor can the enforcement branch effectively enforce all of the anti-gun laws, either.
If the NRA mantra "we don't need any more gun laws-just enforce the ones we have on the books" was to be taken to its most logical and realistic conclusion, the Nazi Storm troopers would be conducting house-to-house searches for "illegal guns". Why? Because-there are so many laws on the books now against gun ownership and use, that if they were all to be enforced properly, it would require literal house-to-house enforcement. (Don't believe me? Move to California or New Jersey or New York).
The Legislative Branch (state and federal) is interested in staying in office. They can't repeal the anti-gun laws they passed, because they fear the liberal media as well as an armed populace. They fear the strong, well-funded, liberal special interests that are anti-gun. If you cross them, you don't get re-elected (so they think). Plus they really believe that the destruction of gun ownership will make the world a safer and better place for "the children".
The Judicial Branches (state and federal) honestly don't know what to do. They have the biggest problem of all.
You see, if you took Miller and Emerson and laid out on one big table all of the historical research; and from all this you had to distill a conclusive interpretation of the practical application of the 2nd Amendment in modern 21st century America, the results would shock the world.
Remember that in Miller, the court simply defined the types of guns protected by the Second Amendment. In 1939, the court concluded that the "instrument" (a sawed-off shotgun) was not covered by the Second Amendment, since it was not a military weapon. Here is a direct quote from Miller:
"In the absence of any evidence tending to show that possession or use of a `shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."
Note that the court's conclusion turned solely on the fact that a sawed-off shotgun was not "ordinary military equipment." As Professor Levinson (card-carrying member of the ACLU) said of the decision: "Ironically, Miller can be read to support some of the most extreme anti-gun control arguments, e.g., that the individual citizen has a right to keep and bear bazookas, rocket launchers and ... assault weapons." [See Ann Coulter http://frontpagemag.com/columnists/coulter/2002/ac05-16-02.htm ]
When you add the historical research and the Emerson decision, it becomes no surprise as to why the Supreme Court declined to rule on Emerson:
If they had ruled on Emerson they would have had no choice but to thoroughly and categorically overturn every anti-gun law, every assault-weapon ban, every registration requirement passed in the last 63 years.
Wait A Minute !! I hear you saying. Didn't the courts provide for the proper role of the state to regulate (in law) the private ownership of firearms? Yes that is true. But those regulations and laws over the past 63 years were passed under the false interpretation and application that the state could infringe on the individual's right to own military arms.
Whoops.
So you see, the state and federal governments-in all three branches-are tip-toeing their way quietly around the sleeping bear.
The problem with this strategy of course is that it won't work. It didn't work when the government of all the states tip-toed around the issue of slavery from 1790 to 1860.
All that tip-toeing in those days just made people angrier and angrier. Indeed, despite the fact that from 1800 to 1860 this nation saw and heard the greatest statesmen the world has ever seen; and in spite (or because) of their continued compromises and gutlessness on the issue of slavery, the anger grew to a feverish pitch.
The slaves suffered horribly. And when it was all finally settled, tens of thousands of Americans died.
Tanya Metaksa is right. It was a gutless thing to do. And if the gutless continue to rule this country, we will all suffer for it. http://www.calnra.org/Lolli/wl38.html
"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
Comments
By: Lewis J. Goldberg
Published 06. 20. 02 at 20:37 Sierra Time
"Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms."
-- James Madison, The Federalist Papers
"The best we can hope for concerning the people at large is that they be properly armed."
--Alexander Hamilton, The Federalist Papers
Roots
The Second Amendment sealed into the law of the land the fact that American society is a society that not only tolerates guns, but was built upon their ownership. The Colonials who fought in the Revolution did not run to the local armory to get an 'issue' weapon, they reached in their closets. Apparently this lesson is not lost on the advocates of 'more gun laws,' who do not want another revolution.
At the onset of the Revolution, citizen militia outnumbered Colonial 'Regulars' more than two to one, and of the 200,000-plus individuals that fought in the War, more than half were simply men grabbing their rifle and heading out the door.* The men who crafted the Bill of Rights understood and lived with these simple facts, and they included a codified, permanent acknowledgement of the right Thomas Jefferson articulated in the Declaration of Independence to "...alter or to abolish it [the existing government,] and to institute new Government..." And since 'government' is power, the only way to overcome power is with more power.
During Revolutionary times, it should be noted that while 'quality' may have varied, the citizen militia possessed the same design of firearm that the Redcoats had. Were the Colonials armed with swords, the British would have shot them to pieces. So easy it is to gaze wistfully at picture books depicting scenes of our own glorious revolution, and to be thankful for the sacrifice those brave men made, but likewise so willing to deny the living the same tools of honour taken for granted by the first Americans.
The 'Kill Me' Generation
Today's 'philosophical elite,' which is to say everyone with a paid voice, printed or recorded, from the media to the halls of Congress, is doing their level-best to drive the public into the suicide of disarmament. The fact that such nonsense sells is testimony to Santayana's maxim on the fate of men to relive history when it is ignored. The sheer suicide of 'weapon-free' societies is well documented, but like the smoker who reads the warning as he lights up, the facts make no difference [not to disparage smokers, as I plan to start smoking when I retire...it's a slow death, and I'll already be old.]
We have, in fact, become the 'kill me' generation. Anyone who can read should know that violent crime in the twin 'gun-free' paradises of England and Australia has gone up since the ban. When there is a power vacuum, someone will rush in to fill the void. Governments do it as they become more repressive against a timid population, and likewise criminals find easier prey in disarmed societies [and some may beg to understand the difference between the two situations.]
Regard the following:
"An armed society is a polite society. Manners are good when one may have to back up his acts with his life."
The preceding quote is from Robert A. Heinlein's 1942 book, Beyond This Horizon in which Heinlein has a brief moment of common sense [or plagiarism, since the same thought is expressed, regarding the manners of the American South, in Alexis DeTocqueville's 1835 book Democracy in America.]
...Shall Not Be Infringed
The Bush Administration recently announced, through the Department of Justice, that henceforth the Second Amendment shall be interpreted as an individual right [as opposed to a collective right of 'militias' to bear arms, as had been the case since 1939.] Since during the time the Second Amendment was drafted, the 'militia' could have been any able-bodied male between 17 and 45... hence just about everyone [and when things get really bad, women, kids, and geezers start shooting too.] In any example of period writing, the right is clearly referred to as an individual right.
This means that Conservatives are rejoicing, no?
No.
Solicitor General Ted Olson also said that the right is "subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse."
Let's examine this interpretation by Mr. Olson. Breath deep and read together:
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.
One is left to wonder what purpose the phrase "shall not be infringed" has within the Amendment if the government [remember them?...they're the folks from whom the Second Amendment is supposed to protect the people.] Where does Mr. Olson get this concept? Expediency is the answer...the same type of expediency which the Amendment process was supposed to guard against.
"But-but-but....we can't let murderers and psychos have guns...in public...with decent folks like us! [tremble.grmfff.snort.]"
How long do you think murderers and psychos would last on the streets if all society was armed? Remember DeToqueville's observation? Here are some suggestions for Constitutional gun reform:
Assault Rifle Bans - All such restrictions should be struck from the books as unconstitutional. The public should be allowed to purchase any weapon they can afford. To be consistent, we may have to include nuclear...can't figure out how to stay true to the Constitution while banning government's ultimate weapon.
Convicted Felons - If a man cannot be trusted with a gun, they shouldn't let him out of prison.
Age Restrictions - If you can reach the counter, and Mom or Dad says its okay, then it should be legal to purchase a weapon at any age. In the old days, parents used to send their kids to the store to buy cigarettes too.
Waiting Periods - Get rid of them. The shiny new bazooka should be yours once the cash hits the counter.
Dealer's Licenses - Get rid of them too. It's an infringement, and an instrument of control.
Restraining Orders - It has become popular for judges to prohibit 'significant others' who are under a restraining order from their partners to own a firearm. This is a clear violation of the Constitution. Both partners should retain the right to own a gun, and the 'abused' one should have the good sense to kill the abuser if he comes 'a calling.
Which brings us back to the title of this essay, 'Guns...for the children.' And why not? It's Constitutional, and in a society that truly had its bearings straight, the parents would be armed, and their children would be brought up respecting firearms, and even...yes, even using them; for target shooting, hunting, and even, if need be, self defense.
The Second Amendment comes from a day in which the courts of law were the courts of last resort. The court of first resort was people working with each other to iron out their differences. There was a line of common decency when once crossed, got one of the parties killed or injured. Today's 'professional pinkunderwearmen' cringe at the thought of such behaviour, preferring instead the system which provides tens, or even hundreds of thousands of jobs in the prison and court systems, lines the pockets of attorneys, and babysits millions of people, who, in a better time, would have been weeded out of the gene pool by their own foolishness.
Many liberal-minded folk would remind us that we have emerged from the supposed barbarism illustrated in the preceding passage, and that for society to be truly peaceful, we must stay the course of progressivism and fight to eliminate all weaponry, that even the criminals won't have them. But then, that still leaves the biggest of history's criminals unchecked, and such is why the Second Amendment was conceived.
*All figures for Colonial and British troop strengths taken from the United States at War website.
Your comments and questions are encouraged. [editor@patriotist.com]
http://www.sierratimes.com/02/06/21/goldberg.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