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I finished the essay
thebutcher
Member Posts: 374 ✭✭✭
Here is the rough draft of the essay contest, and I warn you, it is long. The Violence Policy Center will probably send out a hit squad to my house with knives and then have a press conference saying that if the criminals had guns my whole family would be dead."On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." - Thomas JeffersonThere exists a great debate in America. From the cities to the countryside, the classroom to the workplace, and the state houses to the halls of Congress, people are arguing about guns. There are as many viewpoints as there are types of people. On one extreme, you have people who wish to ban private gun ownership. They believe that the government can protect its citizens to the point that they need not have a gun for protection. They also believe that the government would never become tyrannical or it would be futile to try to dismantle it by taking up arms. The other side would desire a completely armed citizenry, with no background checks or registration, and the right to bear arms for private self-defense. Each side has its reasons for its interpretation. Gun control legislation is typically an attempt to curb violence or accidents related to firearms. Some in the movement believe that the only way to do this is to disarm people or at least make it more difficult for the average person to own or carry a gun. On the other hand, gun owners typically want to protect their right as a matter of freedom. They see themselves as law-abiding citizens who should not have to be bothered by administrative hassles or outright restrictions to exercise their rights. There is as much emotion invested in the interpretation of the second amendment as there is in any other issue. It is therefore imperative to look at this dispute from a completely logical perspective, removed from the passion, emotion, and contradictory statistics that each group uses to cite the effectiveness or ineffectiveness of gun control legislation. It is an issue that must be settled by the courts.In United States v. Emerson, The Fifth Circuit Court of Appeals began its examination of the second amendment by discussing various models of interpretation. In general, there are three views accepted by scholars, judges, and the general public. The first view is known as a "collective rights" model, and is the one espoused by groups like the Violence Policy Center. This model does not recognize a right to bear arms, but rather a power granted to the states to form militias. This would indicate that the amendment was being used to protect state sovereignty and would manifest itself in today's National Guard.The second interpretation is called a "sophisticated collective rights" model. This is essentially the same as the first interpretation, except that it grants the individual the right to bear arms if he or she is a member of a militia. This model does not apply in America's National Guard because the government supplies the arms and in most instances, members are not allowed to carry their issued firearms except when on duty. Regardless, this model indicates that the right is contingent upon militia membership. We will explore later why this is troublesome.The third interpretation, supported by groups such as the NRA, would indicate that the second amendment guarantees the rights of individual citizens to possess firearms. This model presumes that a "well-regulated militia" is one composed of the people at large, without government assistance or oversight, and therefore rejects the collective and sophisticated collective rights models. The fifth circuit court asserted that there is sufficient evidence to support the lower district court's ruling that the second amendment should be interpreted using the individual rights model.The Fifth Circuit Court relies heavily on the only Supreme Court decision dealing directly with the second amendment. In their opinion, the judges state that the Supreme Court allowed the ban on certain weapons and that individual possession of these weapons are not guaranteed by the Bill of Rights. The justices in Miller made it very clear, however, that ownership of effective military firearms is protected by the Constitution."In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn. 154, 158." Id. at 818 (emphasis added).The fifth circuit also refutes the sophisticated collective rights model in its analysis of Miller. In Miller, the Supreme Court defines the militia as all males able to perform duties for the common defense. This definition essentially debunks the sophisticated collective model, because the militia is comprised of all able-bodied male citizens, thereby granting the right to all such people.After reviewing Miller, the court addresses several key words in the amendment in an attempt to clarify the meaning and scope of the text. In their textual analysis, the Fifth Circuit begins with the definition of "the people." In the collective rights model, the term "people" is replaced with "states." This is problematic for several reasons. First, it assumes that the authors of the amendment, as well as the citizens during the time of enactment, chose the wrong word willingly. In no other part of the Constitution or Bill of Rights did the founders have any trouble distinguishing the difference between people and states. If one merely reads the document as a whole, it is quite illogical and ignorant to believe such an explanation. To illustrate this example, an attempt to follow the same logic for the tenth amendment:"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the states." This makes absolutely no sense and is a ridiculous statement. Even if one chooses to delude him or herself into believing this, the argument will again fall apart through further analysis of the text. Throughout the entire document, state governments and the federal government are granted powers, not rights. Furthermore, the framers did not protect government powers; rather they attempted to clearly define such powers to keep a check on them. The Bill of Rights, taken as a whole, is a declaration of limits placed on government to assure the protection individual rights. It is necessary to view the second amendment in a vacuum in order to espouse the collective rights model, and even then it is a stretch. This interpretation would make mirror image statements in state constitutions (such as Hawaii) illogical. Why would Hawaii need a clause in its own Constitution to protect a state right? Who are they protecting themselves from? The Fifth Circuit Court goes on to similarly illustrate other portions of text to support the individual rights model.The court also examines the political and historical debate surrounding the second amendment during the time of ratification. There appears to have been a widespread sentiment among the framers that an armed populace was necessary to keep the power of a standing army in check. Most ratifying conventions and legislatures included similar statements of support indicating the right to be individual. In fact, the Fifth Circuit judges indicated that there was simply no factual evidence to support a sophisticated rights model or a collective rights model.The judges do, however, offer a limited opportunity for firearms regulation. It is certainly consistent with the second amendment to restrict the ownership of guns to law-abiding citizens. In their example, the judges stated that if Dr. Emerson was found to have been a danger, his firearm ownership could be revoked. However, in this case, an automatic restraining order (with no evidence of any violent behavior or threat) restricted a guaranteed freedom and is therefore unacceptable. The decision of the Fifth Circuit rightly protects the rights of individual gun owners while allowing the government to attempt to protect its citizens by enacting narrow and specific gun regulations to keep firearms away from criminals.I have attempted to give the best analysis of the eighty-four page Emerson decision that I could render. I know that because my critical analysis of the court decision is contrary to the beliefs of the Violence Policy Center, I will probably not be chosen as the winner of your contest. I think, though, that it is important to cite my findings regardless. This is not done only to put forth an alternative point of view, but because after reading the decision and researching the case, it appears to be so compelling that I can't understand how it could be attacked (while following our emotion-free and logic based framework). On final analysis, it takes a lot of squeezing and inventing to make the collective rights model work, whereas the individual rights perspective just makes plain sense.
The definition of an "expert":An "X" is an unknown quantity and a "spurt" is a drip under pressure.
The definition of an "expert":An "X" is an unknown quantity and a "spurt" is a drip under pressure.
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The definition of an "expert":An "X" is an unknown quantity and a "spurt" is a drip under pressure.
I can't come to work today. The voices said, STAY HOME AND CLEAN THE GUNS!