Firearms Ownership: A Universal Right

18 Monday Jul 2016

Posted by perrinlovett in Legal/Political Columns, News and Notes

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America, Constitution, Dred Scott v. Sandford, firearms, freedom, government, gun control, guns, law, Miller, rights, Second Amendment, The People

The elites and the gun grabbers are desperately counting on racial and other divides in order to exact more gun control, more people control, on the population. The problem, for them, is that we are not so divided as they would like.

Gavin Long, the racist who killed three police officers in Louisiana this weekend had a history of hating “crackers”. However, that did not seem to stop him from shooting and killing black and white officers alike. Even he wasn’t divided; he just saw blue targets. Some would surely love to pounce on these murders to further freedom controls. Hussein Obama wants the police to admit they have a problem. Gersh Kuntzman blames the “gun nuts”. Many will suggest, other issues aside, that blacks (and whites) simply are not safe in our culture of firearms. Facts failing them, they will resort to emotional appeals related to the spate of statistically insignificant but culturally damning shootings of late.

Their problem here, and it is a wonderful problem, with blacks and guns is that blacks have adopted the gun culture. Once upon a time firearms may have been the province of white males in the rural parts. Now, it’s everyone. Men, women, all races – everyone is carrying.

Many blacks astutely recognized the importance of gun ownership years and years ago. In 1867 Frederick Douglass hailed firearms ownership as one of the three hallmarks of a free man and his rights (“the ballot box, the jury box and the cartridge box”).

From local and state regulations in early America through the Gun Control Act of 1968, many control and prohibition laws were aimed at disarming blacks. One racist strategy was to limit the availability of cheaper guns, “Saturday night specials”, as these were frequently the only arms economically obtainable by blacks (and other groups of lower socio-economic status).

Indeed, the U.S. Supreme Court went so far as to list the carrying of arms as a right blacks were not entitled to (as they were not considered citizens). In relegating blacks to either second-class or chattel status, Roger Taney reasoned:

More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

Dred Scott v. Sanford, 60 U.S. 393, 416-417 (1857)(emphasis added).

The grabbers and the intellectually lazy of the legal education profession for decades overlooked this enumerated right in Scott and as set forth similarly in other cases in favor of a simplistic reading of Miller (1939). I recall reading once in a Constitutional Law book a footnote – the only mention given the Second Amendment – that stated Miller was the only Second Amendment case in history. As the Court did not expressly affirm absolute firearms rights therein, the 2A didn’t confer an individual right and was barely a part of the Constitution.

My reading of Miller, as poor an opinion as Scott, always led me to believe the Court had affirmed an individual right to keep and bear military-grade weaponry. The gun Miller possessed, a saw-off shotgun, was determined to be of no military value despite the use of such guns, martially, for centuries. The short-barreled shotgun has continued to see combat since – most notably perhaps in the tunnels of Vietnam.

It also struck me as interesting that people could lawfully possess weapons of war but might be precluded from possessing “ordinary” arms. If one has a right to a battlefield rifle or a machine gun, what was the harm in owning a bird gun or a .22 plinker?

shotgun-3-1245333-639x360

George Gardner.

Subsequent rulings, this Century, have definitively settled the matter though in a shaded fashion which leaves open the possibility of state meddling.

They want to meddle and they want it badly. Evidence and sound logic ever eluding them, they continue to exploit instances of misfortune and fickle public sentiments. It is a joy and a wonder that their efforts are failing as more and more people wake up. Black, white, yellow, red – all are universally entitled to universal rights, which the left hates and opposes with universal fury.

An armed society is a polite society – for everyone.

Constitutional Law

13 Wednesday Mar 2013

Posted by perrinlovett in Legal/Political Columns

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This article is an extension of my recent columns on The Constitution, https://perrinlovett.wordpress.com/2013/03/08/the-united-states-constitution/, and Legal “Education,” https://perrinlovett.wordpress.com/2013/03/12/legal-education/. One would think that the matter of Constitutional law would have been covered in my article on the Constitution itself – unless one also read my treatise on law schooling.

Oddly, in my experience, the Constitution itself is not required reading for Constitutional law classes. Rather, some imported parts of the document are set forth in the text-book used by the professor. This strikes me as intellectually dishonest and unwise, akin to using a dangerous power tool without first reading the directions. Herein, I briefly cover the usual course material from such as class. The professors, many of whom have never been in a court, let alone argued for or against the Constitution, regurgitate the rulings of different courts regarding a limited number of subjects. While there is an occasional discussion of the reasoning behind the opinions, they are generally viewed as sacred, unswerving law. Rare instances where history has determined the rulings to be invalid (i.e. Dred Scott v. Sandford, 60 U.S. 393 (1857)– slavery is okay pre war between the States) are swept under the proverbial rug, written off as mistakes made due to the prevailing thoughts of the cases’ times.

(Prof. Laurence Tribe’s ConLaw Book. Google Images.)

As I have written elsewhere, no reference to Natural Law is made and no critical thought is given to the “why” behind the laws. As Max Tucker wrote recently, any student who dares to pose dissenting views or arguments is detested noticeably by the other students and the faculty. Rarely, student are given the opportunity to delve into the deeper meanings of the cases they study. I was fortunate to be able to write a short essay on the effects of Scott, in which I decried its universal sadness and the role it played in the schism in our nation circa 1861. Part of my essay was read aloud to the class by our professor – another rarity, a former practicing attorney. My points were well accepted. Of course, I had the benefit of over a century of progress on my side. Other topics, which require hypothetical deconstruction, are roundly ignored.

As with all other areas of the law, Constitutional law has degenerated into a study of the constantly shifting case-law which arises under the Constitution. By the way, I always capitalize the “C” in Constitution out of reverence for the document and its place in our Republic (I do the same for “Republic” too). I have explained my philosophical troubles and doubts about the Constitution but, due to my sworn allegiance to it, I am honor-bound to defend its ideals.

Case-law study is important and has a valid place in the legal practice. After all, most attorneys make a living pushing various issues in courts through individual cases. Each provision of any law is subject to some interpretation as part of its application to the circumstances of the real world. The trick of “strict construction” application of the Constitution is to adhere as closely as possible to the text and plain meaning of the old parchment. I follow strict construction as my approach to most laws, in and under the Constitution. The first fork of any analysis is to determine if the issue scrutinized is compatible with the underlying law. If the two are compatible, then the analysis shifts to application of your set of facts to the law. If there is an incongruity, then it is necessary to decide whether the law is improper or if the facts are insufficient for action.

Here’s a brief, over-generalized example, ripped from the recent headlines!: Mary lives in New York City; she is an avid consumer of Coca-Cola beverages, particularly in large volumes. Mary went to the corner store in Hell’s Kitchen and ordered a 40-ounce frozen Coke treat. She was informed by the clerk that a drink of such heft was just outlawed by the wise and magnanimous mayor of NYC, Michael “Soda Jerk” Bloomberg. Mary, offended and hurt, contacts an attorney in order to take action against the mayor and the city. Her attorney files a lawsuit seeking an injunction or some other remedy to force the city to curb its policing of soft drink size. Upon reviewing the case, a judge decides that NYC’s ordinance is too vague to be enforceable and strikes it down accordingly. Mary happily continues on her guest for obesity. This represents proper application and analysis of the law and the facts – in this case Mary’s freedom to drink liquid sugar in peace.

Had Mary had a more pressing cause – say a desire to legally and permanently rid herself of a troublesome in-law and she requested her attorney file a similar action to invalidate New York’s statute against murder, her attorney would have likely declined the case. If he was a fool, and filed an action anyway, the attorney would lose as any court would side with the law irregardless of Mary’s malicious desires. While it is proper to allow peaceful people to purchase and consume products of their desire, it would be improper and an affront to Natural Law, to allow someone to kill another person without good cause (i.e. self-defence).

These examples are extremely simple, but they demonstrate my core points. The problem in the law has arisen from the over deference to certain laws as applied to the real world. Today, the Constitution is not interpreted as strictly dictated by its own terms or by my previous explanation of the powers it grants. As I noted before, a few select clauses have been given immortal omnipresence to the extent the entire document has been rendered a nearly lost cause. All of these clauses give extra, unintended authority to the government to regulate and control everything. Through various cases over the years, the courts have essentially made up the law or, at least by their interpretation of the laws, have allowed over-reaching actions of the government to stand as legitimate.

Popular of late is the criticism of “activist judges” who take on the role of a legislator in their quests to rewrite the laws of Congress. Some courts have gone so far as to divine new rights and powers mentioned nowhere in the Constitution. Roe v. Wade, 410 U.S. 113 (1973) is a poster case for such activism. In Roe, the Supreme Court opined that abortion of unborn children is a right of pregnant women. This right stems, allegedly, from the women’s “liberty interest” in their own bodies. While not found in the text of the Bill of Rights (or elsewhere), this right does exist and should be protected. However, the right, like all rights, has limits. The high Court did not adequately consider the rights of the unborn children to be secure in the integrity of their own bodies during its decision. Instead, the Court issued an incomprehensible psuedo-scienticifc approach to determined when a life becomes a life. Medical science has definitely answered any related questions in favor of the unborn. However, as is, about 1 Million children are murdered every year thanks to the Roe decision. This was a case of improper balancing of competing interests under the umbrella of the law.

I do not roundly condemn “activists.” Sometimes it is advantageous for a jurist to heavily scrutinize the law if the law actually impinges on protected rights. The New York soda decision is a good, if oddly worded, example. Problems happen when judges do not universally review the impact of a law, standing or undone. It is also impermissible in a Republic for a court to institute new law – the domain of the legislature only.

I will herein briefly explain a few of those key clauses and ideas of the Constitution which have given the federal government unlimited power over your lives. These are the basis for Constitutional study in law schools. In summary it suffices to say that they can and do anything they please, without hinderance.

The General Welfare Clause

This clause purportedly allowed Congress to use its defined powers for the betterment of all people. It has been held it “has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.” Jacobson v. Massachusetts, 197 U.S. 11 (1905). However, in conjunction with other provisions, the clause has been used to justify countless spending sprees directed towards the profit of a select few, often at the expense of the People.

The Commerce Clause

Congress has the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress.” Constitution, Art. I, Section 8, Clause 3. Rather than regulating commerce between the listed entities, this clause has been egregiously abused to empower Congress to regulate anything which can conceivably occur wishing any of the stated territories. The poster case of the clause is Wickard v. Filburn, 317 U.S. 111 (1942) in which the Supreme Court declared that wheat grown by a farmer may not necessarily be used privately by the farmer because such use (bread baking) might negatively affect interstate commerce, the ability of bread companies to sell the farmer bread. While defying belief, this case and its ilk are recited as if dictated by Jesus by law professors coast to coast. The Commerce Clause saw minor setbacks in the 1990s but it remains as the basis for most criminal and civil statutes enacted by Congress. Arguing against commerce connections in court is as successful as herding alley cats. I know this from personal experience.

The Necessary and Proper Clause

This clause, known also as the “elastic clause,” appears in Article I, Section 8, Clasue 18. It provides that Congress can authorize the steps required to implement their other enumerated powers. The Anti-Federlists argued against this provision, fearing it would allow the central government to assume endless power in the name of affecting those valid programs instituted under the named authorities. Turns out they were right. In conjunction with the Commerce Clause, the Necessary and Proper clause has been used to justify federal intrusion into everything. It was necessary and proper to prohibit farmers from utilizing their own crops to preserve commerce, and so forth.

National Security

“Patriotism” is regarded as the last refuge of a scoundrel. Frequently, it is the first. There exists an idea that an allegation that a legal measure is warranted in order to preserve security or defeat some enemy regardless of any other factors. Frequently, the government will assert this as a defense in a court case in order to avoid any discussion of the underlying subject matter (torture, internment of citizens, etc.). This tactic usually stops the case dead in its tracks. In a true emergency such a policy might serve a valid purpose. However, as we now are told we live under perpetual threat of all sorts of impropriety, the argument is used as a universal repeal of our rights. History indicates that “emergencies” never go away. For instance, 68 years after winning World War II, we still station troops in Japan and Germany. We also have a portion of our incomes withheld prematurely for taxation purposes – this was supposed to be a temporary war-time measure of WWII. History also shows that a government will do anything to maximize its power under a security “threat,” including the manufacture of threats from nothing.

Taxation

“That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create….” Chief Justice John Marshall, McCulloch v. Maryland, 17 U.S. 316 (1819). Governments have proven themselves able to destroy just about anything, they create next to nothing. Originally, our government was funded by tariffs and import fees and simple requests to the States for assistance. The advent of the 16th Amendment gave Washington awesome power to take as much money as the need from the people’s labors. The illegal Federal Reserve scheme allows them to create additional monies at will. The courts have constantly upheld the power of taxation even when Congress didn’t know they were implementing a tax. See: The Obamacare decision, Slip Opinion 11-393, June 28, 2012. Taxation gets its own law school class – where it is worshipped like a god. Dissenters are frowned upon as heretics (I know…).

A Few Rights

Over the years, several levels of scrutiny have been assigned to several pet rights. I am suspicious of each of these levels and will not bore you with their application. For the most part they apply rights based on classification of persons and against the backdrop of government “interests.” It is interesting that usually deference is given to a particular law; the law is presumed Constitutional absence some showing that it is an abuse impermissible under one of the abstractly devised levels of scrutiny. I would prefer deference to the Liberty of the People, with the government left to prove conclusively their law does not infringe that right or that any infringement is necessary in order to secure greater liberties for all.

Most Constitutional law teaching about “rights” center on the First Amendment. There is usually a class devoted singularly to the subject. The First is worthy of great attention. However, too often the cases studied thereunder tend to regard outrageous acts. Rather than securing rights to fundamental speech for example, such as protesting abortion, educating potential jurors, and protecting free speech during an election, the courts have wasted much time protecting things like naked dancing and wearing offensive sloganed t-shirts.

Voting rights, due process, and equal protection in general have also received great review. However, given the steady deterioration of fundamental due process and equal protection, it is obvious there is a systemic bias towards the government over the free people. For example, Rand Paul’s protests aside, next to nothing has been done in response to the President’s plan to murder Americans in America using drones and no legal process. The scheme is likely to survive (hopefully unused) due to deference to vague assertions of “national security.”

The rest of the Constitution is left in the dark void of undecided law. It is either taken for granted that such matters will be resolved in due course by the courts or simply that the provisions have no effect. In law school I was bluntly told that the Second, Ninth and Tenth Amendments didn’t exist. I found this hard to believe. Now, with several positive court cases to lean on, the Second has been given some legitimacy though many “scholars” still remain grounded in the ancient, misdirected past. On Tuesday, March 19, 2013 I will attend a symposium on the Second Amendment, replete with reference to these lost interpretations. I have several questions sure to generate discussion and maybe laughter among the gathering. Join me if you will.

If you teach Constitutional law, incorporate the actual text into your class. It could be a prerequisite, covered at the beginning of the semester and then referred to during the subsequent discussion of cases. Attorneys need to familiarize themselves with the text of the Constitution, everyone else should too.

Together, each of us acting as we may, we may be able to slowly restore a rational teaching and application of the Constitution. Perhaps someday we will return to the looser confines of the Articles of Confederation, allowing the member States of the Union (closer to their respective citizens) to affect policies towards the People. With an eye towards ultimate freedom, I can envision an even less restrictive society. I am reminded that “anarchy is better than no government at all.” I’m not sure society is ready for that level of responsibility yet. Someday…

The Second Amendment

04 Monday Mar 2013

Posted by perrinlovett in Legal/Political Columns

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This is a follow-up to some of my recent columns, Posse Comitatus, A Short History of Gun Control in America, and others. The Second Amendment and its subject matter have been in the news recently as part of the never-ending “debate” over gun control. The Amendment has also received special attention from the U.S. Supreme Court twice in the past five years.

My purpose here is to explain what the Amendment means and what most commentators (even pro-firearms authors) miss in their reading and application. Even if you do not own guns or have an interest in them, this issue affects you and your Liberty. Somewhere in the writing process I realized I should have divided this into several segments. My apologies for the heft of the article. Sadly, I didn’t even get to add in half of what I should – maybe a book is in order? certainly a follow-up’s follow-up.

“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.” Second Amendment to the U.S. Constitution (1791)(entirety).

(Minutemen staring down British Regulars. Google Images.)

The Second Amendment has absolutely NOTHING to do with hunting, sport shooting, and weapon collecting. Those activities are important and are rights which derive from Natural Law. However, they are ancillary to the purpose of the 2nd Amendment. Ancillary also are the issues of self-defense and defense of others and of property from attacks by common criminals. They to are the absolute rights of the People (absolute, under appropriate circumstances). However, none of these things, which are commonly attributed to the true nature of the 2nd Amendment and gun ownership, fall under the actual purpose of the Amendment.

There are two primary reasons why the 2nd Amendment was included in the Bill of Rights. First, the Founders wanted a heavily armed population so that the nation and the constituent States might be well defended from foreign or outside aggression and invasion. Second, and most important, the Founders wanted the People heavily armed in order to overthrow or repel the State governments or the federal, national government in the event said government ever became tyrannical in nature and operation. The true purpose of an armed people is to resist tyranny. This is not only the right of the People, it is also their solemn duty.

Politicians do not like being reminded of this fact these days. Perhaps their guilty consciences get the better of them given the nature of modern government – as close to tyrannical as just about any in history. For reasons given herein and, those which I plan to elaborate on in a future column about arms, the ticks have little to fear. As I have written elsewhere, most humans like to be controlled. In the absence of fair masters, they will take any master that comes along. I hope you, by your nature or by reading this article, are a member of the few who prefer freedom to slavery. Your existence makes the tyrants sweat.

For the longest time the Second Amendment was largely written off by the legal “profession.” When I was in law school I was told the Amendment (and a few others) didn’t really exist. I found this strange. The Amendment was there in the text of the Constitution and its plain language made perfect sense (the 10th Amendment was the same way). Try as I could, I could never locate the provision which allowed for the murder of babies. The law school community regards this right, in blasphemy, as if it had been written by God himself.

Then again, law school has little to do with the law. The one thing that was not required reading in my Constitutional law classes was the Constitution. No mention was made of the natural underpinnings of the Constitution. It’s no wonder most attorneys emerge from this environment without the slightest knowledge of whence our laws are derived. I was different, I always am. I read the old documents and inquired as to why certain things were included and excluded textually. I read a lot. At the time, the only legal textbook in print which even mentioned the 2nd Amendment was the one compiled by Laurence H. Tribe of Harvard law fame. His mention was very brief, but at least he had the curtsey to include it at all.

Most Consitutional law education focuses on two things: 1) the supreme power of the government and; 2) a few pet rights with plenty of case law material for professors to quote (the 1st Amendment, for instance). I also have columns underway to explain both the Constitution (briefly) and the convoluted subject of Constitutional law. You’ll have to wait for those.

As I said, the 2nd Amendment received little official attention for many years. Early in our history and it that of our English forebears, the concept of a well armed population was well enshrined. It was taken as a given that men would be armed. The Founders went the brave extra step and set the armed people as defenders of their own Liberty against the heinous forces of organized government.

Thomas Jefferson was rightly fearful of the problems posed by a standing government army. The Declaration of Independence was full of accounts of the crimes committed by King George through his armies. The mandate for a militia rather than a professional army found its way into the Articles of Confederation, Article 4. While armies are allowed under the Constitution, they are supposed to be limited to a two-year duration, they were meant as an emergency measure. U.S. Constitution, Article I, Section 8.

In the debates leading to the Constitutional Convention, both the Federalists (in favor of the Constitution) and the Anti-Federalists (fearful of a strong central government) denounced the practice of standing armies as grave threats to liberty.

Writing for the Federalists Alexander Hamilton, himself not the greatest proponent of decentralized liberty, reiterated the common saying of the time that standing armies “ought not be kept up, in time of peace.” Federalist, No. 26. In No. 28 Hamilton asked mockingly, against the fact of armed State militias, when could the federal government ever amass a sufficiently threatening army? As Monday morning’s historical quarterback, I suppose the answer was “in about 200 years.” Hamilton also thought the two-year budgetary limitation placed on the army would render it ineffective for tyrannical purposes. Federalist, No. 24. Out of the pocket again, we now have a standing army fighting numerous “wars” despite the absence of a federal budget for four years.

The Anti-Federalists were equally fearful of a central army. In his Tenth Letter, January 24, 1788, “Brutus” (most likely New York judge Robert Yates) warned of two dangers presented by a standing army. First, it could be used by leaders against the people in order to usurp power. Second, the armies themselves could “subvert the forms of government, under whose authority they were raised…” As examples he cited the once free and constitutional Roman Republic and British Empire.

Interestingly, the Second Amendment could have contained anti-army language. The Virginia Convention proposed a Bill of Rights (June 27, 1788), which would have had the second amendment as seventeenth. It would have read: “That the people have a right to keep and bear arms; 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 times of peace, are dangerous to liberty, and therefore ought to be avoided, as far as circumstances and protection of the community will admit, and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.” I rather like that. The Pennsylvania Minority had put forth a similar proposal on December 18, 1787.

During the forty-fifth Congress, Rep. William Kimmel of Maryland, author of the Posse Comitatus Act, echoed the sentiments of the Founders as he quoted Tacitus, “Is there any escape from a standing army but a well-disciplined militia?” 7 Cong. Rec. 3579. He also quoted Lord Bacon, who remarked of the Tudor years of English history, a “mercenary army is fittest to invade a country but a militia to defend it.” Id. Many were the quotes from members of the House and Senate on similar points.

The issue faded as the 19th Century progressed because it was still taken for granted that free people should be armed. As I noted in Gun Control, the States and the federal government from this period to the present, began to enact various illegal, and progressively worse restrictions on gun ownership. The 2nd Amendment did make appearances in law and court cases though during this period of general dormancy. I will discuss two such cases here.

In Dred Scott v. Sandford, 60 U.S. 393 (1857), the Supreme Court ignobly affirmed black slaves were property as opposed to people. However, the Court’s reasoning touched on the 2nd Amendment. If slaves were considered human beings, then they would be entitled to human rights – such as the right to bear arms. This case gave silent acknowledgment to the 2nd Amendment, which law professors somehow overlooked or wrote off. It also slaps their Supreme Court worship in the face. The fallibility of their god also seems lost on them.

In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court held the 2nd Amendment only protected firearms with militia “value.” Mr. Miller was arrested for illegal possession of a short-barreled shotgun, one of the weapons regulated under the UnConstitutional 1934 National Firearms Act. I always thought this case made some sense. If the only guns protected are those of use to the militia or the military, then it would seem the people have a right to own those types of weapons. And, if they are entitled to own those, why not allow them all lesser guns (like short-barreled shotguns). Subsequently, shotguns of reduced length came in useful to the army GIs and Marines in Vietnam and other tight, uncomfortable places.

The delusional legal community took Miller to mean something else, something only a law professor could belive – that the 2nd Amendment protects a government’s “right” to keep arms. The deliberate misinterpretation of Miller during the last half of the 20th Century gave rise to the idiotic “collective rights” theory, an impossibility in and of itself. The theory lead to the belief of leftists and statists alike that the 2nd Amendment gave the government the “right” to organize a body such as the National Guard. This was ludicrous. Only individual persons have rights. Individuals with rights can join together in the exercise of those rights, but the rights themselves never acquire group status. The status certainly never transcends from the people, individually speaking, to the government. Governments have powers, not rights.

The point was finally clarified (as if such a plainly worded sentence needs clarification…) by the U.S. Supreme Court in two cases early in our current Century. In District of Columbia v. Heller, 554 U.S. 570 (2008) the high Court overturned D.C.’s illegal law restricting handgun ownership. The Court also held the Second Amendment did in fact confer upon the people a fundamental right to keep and bear arms. The collectivists were crushed. The Court actually noted the Natural Law right of self-defense. The law professors were confused. The opinion limited its reach to federal laws and enclaves (like D.C.) and appended certain language regarding “traditional” uses of firearms. The Court also made notable mention of the proper relationship between the people and the militia, but they did not reach my ultimate conclusion from Miller.

In my humble but professional opinion (I are a Constitutional and firearms law litigator person, after all), the legal opinion rendered by the D.C. Circuit Court of Appeals in its earlier hearing and decision of Heller, D.C. v. Parker, 478 F.3d 370 (2007)(Parker was then a co-plaintiff with Heller and several others), was a far better recitation of the 2nd Amendment, its meaning and origins. Judge Laurence Silberman went to great lengths to explain the original meaning of the “militia” and its prerequisite condition of an armed people. I will comment on this subject a little later, in my own words.

I met Judge Silberman at a legal education luncheon (CLE) in 2008, while Heller was pending the Supreme Court. I thanked him for his contribution. However, as is so often my way, I was disgruntled that afternoon and made my usual sarcastic comments to kick off the meeting. CLE’s do that to me. Imagine paying a good sum of money for a decent lunch which you can’t enjoy because some dude or dudette is babbling on about the law. Anyway, I recall referring to D.C. as “the District of Corruption.” I did this before a small gathering of government attorneys and government-dependent attorneys. Judge Silberman gave me a nervous chuckle, the rest of the crowd was aghast at my … honesty.

Anyway, the 2008 opinion was good enough of a start. Two years later the Court added to the new body of 2nd Amendment law.

In MacDonald v. Chicago, 561 U.S. 3025 (2010) the Court, in striking down an illegal Chicago law, “incorporated” the effect of the Second Amendment to the States, via the 14th Amendment. Many libertarian scholars are dubious of the theory of incorporation but I will not touch on that here other than to say the 2nd Amendment must be respected by the States. This makes sense, as far as it goes, as no entity may legitimately violate fundamental human rights. The Court also included some dangerous language in the decision, particularly regarding the possibility laws may place “reasonable restrictions” on firearms ownership. The reference may prove a trojan horse for gun owners, especially in light of those restrictions already in place (NFA and GCA) which are now taken for granted. I do not take them so and I have no faith in government to keep any additional restrictions “reasonable.”

Other, newer cases are working their way through the courts, generally with good success. I think the Amendment is finally getting some of the respect it deserves. I also don’t think Congress will act to rashly regarding new restrictions, yet, even in the face of the ridiculous hysteria raised of late.

I began by stating the Second Amendment is about the people resisting government tyranny. I do not advocate herein the violent overthrow of the government. Such action, even if warranted, would likely end in disaster. Besides, given the suicidal tendencies of the federal and most state governments, such action would seem pointless. I said “even if warranted” because once any government exceeds its scope and purpose to the point it becomes a threat to, rather than a defender of, the Liberties of the People (the only real reason for the existence of government), then again, it is the right and duty of the people to shrug off such tyranny. When such action is taken legitimately, it is not an act of rebellion. In fact, at such point, it is the government which is in rebellion and deserving of correction. This may be subject matter for another future column.

The Founders, being highly suspicious of standing armies in the service of a central government, determined to set up a militia as a proper alternative. A “militia” is merely the organization to some degree of all the armed men in a jurisdiction. Every State in the Union still maintains a militia, completely separate from the National Guard. The militia of a given state is generally divided into two classes – the “organized” militia and the unorganized. The organized consists of members of the State defense force, whatever it may be termed. These are voluntary citizen forces under control of the Governor. They are generally neutered these days but retain the ability to become a combat ready force. The unorganized force consists of all able-bodied males (and certain females) between certain ages (adults, generally). I am a proud member of the unorganized Georgia militia!

These militias are primarily at the disposal of the States and can only be utilized by the federal government in certain cases. The main point of this system is that the weapons are supposed to be in the hands of the people, not the government. This is specifically true regarding infantry weapons. A militia member should, today, be able to report for duty with any weapons available to a modern infantryman. This would include fully automatic rifles (including SAWs) and shoulder launcher systems (Stingers, etc.).

We currently are restricted from such weapons, illegally, by the NFA and the GCA and amendments. Also, as a counter to my central premise of militia dominance, the federal government has done a terrible job regulating the militias. The States have all but abdicated their independence and authority to Washington. Washington has also taken advantage of this situation by raising and maintaining huge standing, professional military forces in perpetuity. This is all contrary to the intent and the language of the Constitution. The American people have also undergone a dramatic transformation. Regarding these instant issues, the populace tends to regard militias as dangerous bands of domestic terrorists while literally worshipping the federal Imperial military. How many yellow ribbon decals have you seen promoting the militia?

This leads me to my final point, the concept that so many people miss regarding the Second Amendment. Most historical analysis has focused on the “militia” preface and the “right of the people” action clause, or both together (see Judge Silberman). What everyone seems to miss is the “security of a free state.” A state, according to the Founders and their wisdom could only be preserved by an armed people serving as the militia. The key word here is – “FREE.” Given the decline of liberty, seemingly demanded by the people, can we be said to live in a free state anymore? If we do not, is anything else important? I would, of course, answer affirmatively. I’m not so sure about my fellow countrymen. This may provide material for a future column. Your thoughts?