Posts Tagged ‘SCOTUS’
In Defense of the 2nd Amendment
With yet another US Supreme Court case about gun-ownership concluding soon, I thought it prudent to put forward my analysis of this rather misunderstood amendment within the Bill of Rights.
Of all the amendments to the Constitution of the United States, none is as hotly debated more than the 2nd amendment. The meaning and purpose of the 2nd Amendment seems to elude not only much of the general public at large, but also those “experts” within the halls of both legal and scholarly enterprise
What I have found in the 12 years of researching the 2nd Amendment of the United States Constitution has led me to the inescapable conclusion that neither the collective-rights model nor the quasi-collective rights model, nor the states-rights model is accurate. It is clear from the amendment itself that all of those “new models,” are based on the erroneous theory of “The Living Constitution.” That idea is as intelligent as the mediaeval theory that the Earth is the center of the universe and everything revolves around it, which is utter balderdash.
The Individual-Rights model, which is based on the facts surrounding the creation of the constitution of the United States as created by the people of the United States (Founding Fathers), who in turn put their trust in the citizens-militia to protect the Republic from not only foreign enemies but from the several states themselves, is the only correct “interpretation.”
The Constitution IS NOT in a foreign language, nor is it in the often times deceptive legalese of modern-law. It was written plainly, so that all citizens would understand its meaning without question or need of a legal interpreter.
The amendment makes clear WHO comprises the militia, and THAT the people have the right to arms for the purpose of maintaining the security of a FREE as opposed to TYRANNICAL state.
The missions of the militia are to enforce the laws of the Union (the Constitution and Bill of Rights), to put down insurrections (presumably by State select militia forces, military, and/or police forces), and repel invasions (from foreigners who cross the border illegally). This militia is composed of all male citizens of the United States, as opposed to State Citizens, who may be granted the right to keep and bear their own arms by their respective State Constitutions.
The Militia Clause
In order to defend this amendment properly from those who clearly wish to undermine its meaning for totalitarian purposes I must define, dissect, and explain with evidence what this simple amendment actually says.
First, allow me to start with the first half of the amendment, “A well-regulated militia being necessary to security of a free-state…”
Sheldon Sheps attempted to define this portion of the amendment (he is a Canadian lawyer who did a 4-page piece for the ADL, and is quite fond of Juggling I might add. ), but upon researching his information I find that the term “un-organized militia” did not exist at the time of the 2nd amendments creation, nor did the term exist as law until the “Militia Act of 1903.” His assertion that the un-organized militia is forbidden to train in military discipline and that they were no longer to keep and bear arms is non sequitur. Sadly, his research is what much of the Gun Control community use as “historical evidence” to support their position of the so called “collective rights model.”
On the other side of the argument is the NRA, which seems convinced that there is somehow a separation between the first and second parts of this simple amendment. US courts at every level of government have made very clear that this is not the case.
The only two groups who seem to have a grasp of what the amendment means is Gun Owners of America, and Jews for the Preservation of Firearms Ownership.
That view is essentially that all able bodied persons (that includes women as well) between the ages of 17 and 45, are members of the militia.
Allow me to explain by starting with the original intent of the amendment, and the attitude of the time.
George Washington laid out this attitude quite well when he purportedly said;
“Government is not reason;
It is not eloquence;
It is force!
Like fire, it is a dangerous servant and a fearful master.”
The distrust of government force (that is regular troops/armies) was very much alive in 1787, as can be seen in much of the writings of the day (like the Federalist and anti-federalist papers).
This is precisely why Article 1, section 8, paragraph 12 gives congress the power to “raise and support armies, but no appropriation of money to that use shall be for a longer term than two years.” Section 10 of the Federal Constitution goes on to state, “No state shall, without the consent of congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit delay.”
The founding fathers put their trust in the militia.
The founders made it VERY clear who comprised the militia of the United States:
George Mason: When the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually. . . I ask, who are the militia? They consist now of the whole people, except a few public officers.
George Mason: “That the people have a Right to mass and to 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…”
Alexander Hamilton Federalist paper #29: There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instill prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests?
Alexander Hamilton (Fed papers 184-188): “The best we can hope for concerning the people at large is that they be properly armed.”
Patrick Henry: “The great object is that every man be armed. Everyone who is able may have a gun.”
Rep. Elbridge Gerry (of Massachusetts 1789): “What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty…Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins…”
Patrick Henry: “Are we at last brought to such an humiliating and debasing degradation that we cannot be trusted with arms for our own defense? Where is the difference between having our arms under our own possession and under our own direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?”
Richard Henry (Light Horse Harry) Lee in his Letters from the Federal Farmer to the Republic (1787-1788): “A militia when properly formed are in fact the people themselves . . . and include all men capable of bearing arms . . . 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 . . . The mind that aims at a select militia, must be influenced by a truly anti-republican principle.”
James Madison: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
James Madison: “The highest number to which a standing army can be carried in any country does not exceed one hundredth part of the souls, or one twenty-fifth part of the number able to bear arms. This portion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Besides the advantage of being armed, it forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. The governments of Europe are afraid to trust the people with arms. If they did, the people would surely shake off the yoke of tyranny, as America did. Let us not insult the free and gallant citizens of America with the suspicion that they would be less able to defend the rights of which they would be in actual possession than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors.”
Thomas Jefferson: “For a people who are free, and who mean to remain so, a well organized and armed militia is their best security.”
Thomas Jefferson: “Every citizen should be a soldier. This was the case with the Greeks and Romans, and must be that of every Free State.”
Militia act of 1792: “…each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia…”
Quotes by Tench Coxe (1755-1824 American political economist):
1) “The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American …the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”
2) “The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to over-awe them”
3) ”Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.”
The citizenry of the United States differed from those of the Kingdoms of Europe because they are able to keep and bear arms. James Madison made this clear in federalist paper number 46;
“The advantage of being armed . . . the Americans possess over the people of all other nations . . . Notwithstanding the military establishments in the several Kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.”
The founders spoke of the militia and the people as one entity, which have the right to keep and bear arms to ensure the security of a Free State in the tradition of the common law of England and the British Bill of Rights of 1689. Therefore, it would be inane to think that the “people” spoken of in the 2nd amendment was somehow the individual states.
Let us not forget that the colonists had just fought a war against the most powerful nation of their day, which under the direction of King George the third, had tried to confiscate all private arms. It would be foolish to think they would create the 2nd amendment in order to ensure a “collective right” that State or Federal forces could use and posses arms, that is the thinking of the Old World Order and has been the custom and policy of governments the world over for the better part of 5000 years of history.
No, it is clear whom the first half of the Amendment is referring to and that is the citizenry of the United States as each individual, not collectively through some government agency or military force. The 2nd Amendment is a Liberal idea, thus it was forward looking and saw that in a true civilized-society of progress the move from the old ways of select governmental military forces to the new way of the citizen-militia was the correct path towards freedom.
The Right to Keep and Bear Arms clause
The second half of the amendment is actually more precise in its meaning then the first half: “the right of the people to keep and bear arms shall not be infringed.”
“People” is the operative word here. The Supreme Court has repeatedly ruled that the word “people” as used in the Federal and State Constitutions and their amendments, has always meant the common citizenry, no matter what amendment is under consideration.
Now I must admit that I have seen and entertained some of the deranged arguments about what infringed means in the past. However, upon engaging in this lengthy quest for the truth it has become clear that for some 200 plus years, what the word People meant.
It is also quite clear what that the founding fathers knew what the word infringed meant when they drafted the 2nd Amendment.
According to Noah Webster’s 1828 dictionary Infringed is synonymous with Infraction which means “The act of breaking; breach; violation; non-observance; as an infraction of a treaty, compact, agreement or law. According to Merriam-Webster’s Collegiate dictionary 11th edition, It means to “encroach upon in a way that violates law or rights of another,” and is thus synonymous with Trespass. Infringed means now what it meant then.
“To keep and bear” is obvious.
“Keep” means to own and posses.
“Bear” means to carry on one’s person or within one’s vehicle.
Therefore, the second amendment more or less means;
A well-trained citizens’ army, being necessary to the security of a Free State, the right of every individual citizen to own, transfer, purchase, carry, transport, and store, all manner of military weaponry useful to the common defense shall not be encroached upon by any act of congress or lesser positive law.
Let us not forget in this analysis the battle cry of the Gun-Control advocates who lay claim to the arguments that, “the founders never envisioned machine guns, high-capacity magazines, semi-automatic weapons, etc”
It is clear these types of arguments stem from ignorance of the history of the development of firearms and weaponry as a whole. There are surviving examples of snaphance revolver rifles of the 1590s and up, which have from 6 to as many as 15 chambers within their cylinder, or as many barrels on a revolving mechanism. These weapons are capable of firing all cylinders within 1 minute. Additionally, there was the Miquelet-type, breech-loading rifles of the mid 1600s, which could be reloaded in half a minute.
Then there is James Puckle’s famous “defense” or “Wall” gun that had a removable 64-cylinder drum (that is 14 more shots than a 50 round AK-47 drum magazine).
Puckle guns and other various types of new “revolving cylinder” guns where plenty known about both in Europe and the colonies. Therefore, it is safe to assume the founders knew exactly what types of arms would be available in the future (in so far as small arms are concerned).
Handgrenades, artillery, and cannon were all part of the private arms collections of many of the founders, so what kinds of arms they meant in the 2nd amendment is very clear, the types necessary to defend a country from invasion and ensure that no tyranny could succeed on American soil.
There it is in a nutshell, the founders’ version of the 2nd amendment. The two questions now are what the efficacy of the militia is today, and does the 2nd amendment apply in modern America.
The evolution of the use, and/or interpretation, of this amendment is a long one. I shall attempt to hit upon only the most relevant court cases so as not to drag this on tediously.
Prior to the Militia Act of 1903 there were many cases that had ruled on the meaning of the second amendment, all understood it as an individual right, some courts however saw the possibility of restricting how the weapons were to be carried.
In Aymette, the Tennessee Supreme Court applied that State’s 1834 Constitution, which provided “that the free white men of this State have a right to keep and bear arms for their common defense.” This court case was dealing with the Constitution of the state of Tennessee, which reads: “That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.”
It is interesting to note that in 2002 the ninth circuit court in Silveira v. Lockyer relied on this 1834 case to hand down a decision in favor of the “collective-rights” view, yet rejected the majority of the opinion in Amyette, and all previous and subsequent case law. The Ninth Circuit chose only the particular quote from the case that suited their purpose. It should also be noted that six members of the Ninth Circuit dissented from denial of rehearing en banc and endorsed the individual rights model.
Amyette also pre-dates the passage of the 14th amendment, which gives all citizens of the US equal protection under the Federal Constitution.
The Aymette case did provide a definition of what kinds of weapons are protected by the Tennessee constitution:
“The arms, the right to keep and bear which is secured by the constitution, are such as are usually employed in civilized warfare, and constitute the ordinary military equipment; the legislature have the power to prohibit the keeping or wearing weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare.”
It is this portion of the Amyette case that the Supreme Court, in US v. Miller, cited in order to provide a legal basis for whether or not the 2nd Amendment applied the ownership of a double-barrel sawed-off hunting-shotgun by a member of the militia.
In [Alabama] State v. Reid (1840) the Supreme Court of Alabama unanimously upheld the State’s new ban on carrying guns or knives secretly, finding no violation of the provision in the State’s 1819 constitution that “[e]very citizen has a right to bear arms, in defense of himself and the State.” In so doing, the court recognized that the provision’s right to “bear arms” was a right of an individual, who could bear them to facilitate his self-defense.
The court first looked to the origins of the right in the “provisions in favor of the liberty of the subject” in the English Declaration of Rights. Quoting the right of subjects to have arms for their defense, the court explained: “The evil which was intended to be remedied by the provision quoted, was a denial of the right of Protestants to have arms for their defense, and not an inhibition to wear them secretly.”
This decision would appear to appeal to the view that the right is subject to regulation. However, the court went on to say; “A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defense, would be clearly unconstitutional. But a law which is intended merely to promote personal security, and to put down lawless aggression and violence, and to that end inhibits the wearing of certain weapons, in such a manner as is calculated to exert an unhappy influence upon the moral feelings of the wearer, by making him less regardful of the personal security of others, does not come in collision with the constitution.”
Notice that the court’s decision does not allow for the banning of weapons, only the regulation of how they are worn.
In Nunn v. State [Georgia],, the Georgia Supreme Court not only recognized that the Second Amendment conferred an individual right, but also applied that right to the states:
“It is true, that these adjudications are all made on clauses in the State Constitutions; but these instruments confer no new rights on the people which did not belong to them before. When, I would ask, did any legislative body in the Union have the right to deny to its citizens the privilege of keeping and bearing arms in defense of themselves and their country?? The language of the second amendment is broad enough to embrace both Federal and State Governments—nor is there anything in its terms which restricts its meaning… [D]oes it follow that because the people refused to delegate to the general government the power to take from them the right to keep and bear arms, that they designed to rest it in the State governments? Is this a right reserved to the States or to themselves? Is it not an unalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disfranchisement from Congress, they ever intended to confer it on the local legislatures…. If a well-regulated militia is necessary to the security of the State of Georgia and of the United States, it is competent for the General Assembly to take way this security, by disarming the people? What advantage would it be to tie up the hands of the national legislature, if it were in the power of the States to destroy this bulwark of defense? … The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of free State.”
The reason this case is important is because Chief Justice Joseph Henry Lumpkin (who handed down the opinion in Nunn v. State) started his carrier in law, and grew up in a prominent Georgia family surrounded by members of the generation that had fought the revolution, and at that time, many of the founders were still alive.
Some forty years later, the US supreme court decided in Presser v. Illinois that:
“It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question [the Second Amendment] out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.”
In Dred Scott v. Sandford the Supreme Court considered whether a freed Negro was to be considered a citizen, and therefore whether he had the right to maintain a lawsuit in the U.S. courts. The Court held that such a person could not be considered a citizen, and reasoned that if he were, he would be entitled to all the rights of a citizen:
“[Persons] who are recognized as citizens in any one state of the Union [have] the right to enter every other state, whenever they pleased . . . full liberty of speech in public and in private upon all subjects upon which its own citizens might meet; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”– Id. at 417.
In U.S. v. Cruikshank the Court recognized that the right is an individual right, but held that it was a limit on the power of the federal government and not the states:
“The second and tenth counts are equally defective. The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.”
In Cruikshank, the Supreme Court recognized that the right to keep and bear arms is a fundamental right that existed prior to the adoption of the Bill of Rights. Such a right is protected, and not created, by the Second Amendment.
It is interesting to note that the Supreme Court was in fact trying to uphold states rights to deny freed slaves (blacks) the right to keep and bear arms, stating that the fourteenth amendment only applied to the federal government and not state governments.
The idea that the 2nd Amendment only applied to the Federal government and that freed black slaves did not have the right to keep and bear arms was backwards thinking by the standards of the post-civil war era, and would be considered racist by our standards today (and rightfully so).
The thinking of many Southern States in those post-civil war times was that states had the power to deny blacks any and all of the rights outlined in the Bill of Rights through state law.
From the Liberal viewpoint this is just plain wrong on every level of civilized thinking. However, Cruikshank epitomizes the lengths that racist-elitist-hoplophobes will go to in order to disarm those they see as the “chattel” of society.
In Miller v. Texas the Court refused to apply the Bill of Rights to restrict state action under the Fourteenth Amendment, although the Fourteenth Amendment issue in that case was not reached on the merits because “it was fatal to this claim that it was not set up in the trial court.” This refusal to apply the right to keep and bear arms as a limit on state action was consistent with the Slaughter-House Cases.
The Slaughter House Cases of 1872 centered on a major series of lawsuits against the State of Louisiana owned slaughterhouses. This case is long, so I will summarize its importance here. In short, it provided a clear distinction between natural rights and privileges protected by the Federal constitution (and Bill of Rights, and amendments) and state constitutions. Of great importance in this case was how the 14th amendment changed the citizenship status of all state citizens into US citizens.
In Andrews v. State [Tennessee] the opinion of the court was “The right to keep arms, necessarily involves the right to purchase them, to keep them in a state of efficiency for use, and to purchase and provide ammunition suitable for such arms, and to keep them in repair.”-50 Tenn. at 178, 8 Am.Rep. at 13.
In Robertson v. Baldwin the District court of Northern California stated that: “[describing the Bill of Rights as embodying “certain guaranties and immunities which we had inherited from our English ancestors”] While some might argue that, as an original matter, the First Amendment’s Establishment Clause (which makes no reference to any “right” or “freedom”) was an exception to this rule, the Supreme Court has held that it too creates an individual right, applicable even against States.
The Robertson case adds additional credence to the fact that the Bill of Rights extends beyond the jurisdiction of the Federal government into the states, municipalities, and local governments all the way down into the homes and lives of every individual who is a citizen of these United States of America. Thus, it is clear that the right protected by the 2nd Amendment cannot lawfully be nullified by any state or local law, local covenant, or similar obstruction of the right.
The birth of a Progressive Scheme, “The Collective Rights” Model
After the passage of the Militia Act of 1903/Dick Act, a completely new “theory” on the amendment was formed: the aforementioned “collective rights” theory.
This is where the proverbial headache begins, primarily because of the stated intent of the Militia Act of 1903 in the first place:
“…to allow use of military force against the civilian population in accordance with the Posse Commitatus Act.”
The ability to do precisely what the founders feared is what the Progressives in control of the Federal government at the time did when they formed the National Guard in 1903. Again, we must take into account the attitude of the times. There was still a great deal of animosity and suspicion between the Northern and Southern states over the Civil War and the freeing of the Negros. The Progressives, “humanitarians” that they were, saw the need to violently put down any resistance to their Utopian policies that they were trying to impose upon the population. From income tax to the Federal Reserve System, the rise of Progressive-socialism has gone hand-in-hand with the rise of gun-control throughout the civilized world.
In City of Salina v. Blaksley (1905) the Kansas Supreme Court held that a clause in the Kansas Bill of Rights, providing that “[t]he people have the right to bear arms for their defense and security,” and that this alluded, “to the people as a collective body” which dealt “exclusively with the military.”
The court failed to even recognize the possibility of individual citizens comprising the militia without military service and claimed “people shall exercise this right” though their State government, which the court stated was responsible for organizing, equipping, and disciplining the militia.
The Kansas Supreme Count went on to insist that the 2nd Amendment applied “only to the right to bear arms as a member of the state militia, or some other military organization provided for by law.”
The court seems to have been influenced by a provision in the state constitution admonishing against standing armies in time of peace, and praising civilian control of the military that immediately followed the text of the right. The court also failed to cite any historical authority, and provided very little explanation to support their decision. Instead, they pointed to the Second Amendment itself as analogous and thus reinforced their interpreted reading of it.
Salina’s novelty did not go unnoticed. Another state Supreme Court sometime thereafter, during a survey back to Bliss, Reid, Nunn, and Aymette, described Salina as reaching “further than any other case” by declaring that the right to bear arms in the Kansas Constitution imposed no restriction on the legislature’s power to prohibit private individuals from carrying arms.
Once again, we see a decision based on a State Constitution rather than the Federal Constitution in order to support the “collective rights” agenda.
The Kansas Supreme Court failed to take into account that all citizens of the United States are in fact under the jurisdiction of the Federal government due to the fourteenth amendment, which states:
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
What the 14th amendment means is that we are no longer solely citizens of any individual state, but Federal citizens entitled to the protections and immunities of the federal constitution thus nullifying any state laws which may infringe and/or restrict any right protected by the federal constitution.
The decision handed down in the Slaughter House Cases makes this very clear:
“It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the DRED SCOTT DECISION by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the Negro can admit of no doubt. The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
It is of further interest to note that all state militias were put under federal control by the National Defense Act of 1916 as a reserve force of the National Guard. The National Guard was made a reserve force of the United States Army by the National Guard Mobilization Act of 1933.
The changes made to the status of the selective-militia forces of the States into Federal forces was the final separation of said forces from that of the militia mentioned in the 2nd amendment.
The much-misrepresented case of U.S. v. Miller
Perhaps the most important case of the early 20th century has to be the 1939 U.S. v. Miller case.
Gun-control and collective rights advocates use this case in error simply because they point to it claiming that the high court ruled against Miller when it stated that:
“The Court can not take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia; and therefore can not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”
What they either fail to realize or fail to recognize whether out of their own bias, or simply ignorance, is that the Supreme Court defined a militia using the 1792 Militia Act and not Title 10 or the Militia Act of 1903. Had their view of the militia been in accordance with the “National Guard is the militia” argument, they would have citied the Militia Act of 1903 and Title 10, section 311.
No instead, the opinion read as follows;
“The Constitution as originally adopted granted to the Congress power—‘To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.’ With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”
“The Militia that the States were expected to maintain and train is set in contrast with Troops, which they were forbidden to keep without the consent of Congress. The sentiment at the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia–civilians primarily, soldiers on occasion.”
“The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline.” And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
This opinion is in accordance with the ideology that was prevalent during the creation of the Federal Constitution. Adam Smith’s Wealth of Nations contains an extended account of the idea of what constitutes the Militia. It is there said: “Men of republican principles have been jealous of a standing army as dangerous to liberty. In a militia, the character of the labourer, artificer, or tradesman, predominates over that of the soldier: in a standing army, that of the soldier predominates over every other character; and in this distinction seems to consist the essential difference between those two different species of military force.”
One of the most respected books on this subject, “The American Colonies In The 17th Century,” affirms in reference to the early system of defense in New England–“In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defense. The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former. A year later  it was ordered that any single man who had not furnished himself with arms might be put out to service, and this became a permanent part of the legislation of the colony [Massachusetts]
The chief justices presiding over the Miller case in 1939 knew full well who comprised the militia. It is for this reason that the court in Miller also rejected the States militia model with regard to both the second amendment and limitations on Federal power over the States:
“Considering Sonzinsky v. United States (1937), 300 U.S. 506, 513, and what was ruled in sundry causes arising under the Harrison Narcotics Act2 –United States v. Jin Fuey Moy (1916), 241 U.S. 394; United States v. Doremus (1919), 249 U.S. 86, 94; Linder v. United States (1925), 268 U.S. 5; Alston v. United States (1927), 274 U.S. 289; Nigro v. United States (1928), 276 U.S. 332–the objection that the Act usurps police power reserved to the States is plainly untenable.”
The court also upheld the National Firearms Act in Miller because a double-barrel sawed-off Savage model hunting-shotgun was:
“…in the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less that 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 is use could contribute to the common defense…”
Therefore, US v. Miller make four things clear:
1) The original meaning of “militia” had not changed in 159 years and it still meant “every able bodied man between the ages of 17 and 45.”
2) The Federal Constitution and Bill of Rights are the SUPREME LAW of the land and take precedence over State laws.
3) Weapons which are not of a military nature or useful to the common defense are not useful to the militia and thus not protected by the 2nd Amendment.
4) There IS a “litmus test” for determining what weapons are and are NOT protected by the 2nd Amendment, and that test is simple: the weapon must be of a military nature and useful by the militia to a) uphold the laws of the union (Constitution and Bill of Rights), b) put down insurrections, and c) repel invasions.
Unfortunately, the weapon Miller transported in interstate commerce was just a double-barrel shotgun, had it been a Thompson submachinegun (or other military weapon) the case most likely would have gone very differently. The Thomson M1 was the standard military submachinegun used by officers, paratroopers, and artillery personnel in the US Army during the 1930s. Submachineguns ARE useful for the common defense against invading armies and are the weapon of choice by Police forces in the US for dealing with insurrections.
The best hope of the Progressives, the GCA of 68
There were a few state cases in the 1940s, 1950s, and 1960s that dealt with the 2nd Amendment, but nothing of any great importance.
It was not until the Gun Control Act of 1968 that many new court decisions were handed down. The majority of which used the “collective rights” model, without any accurate historical legal precedence whatsoever.
During the senate hearings on the FFA, the senate panel grilled LBJ’s attorney General Katzenbach over the proposed GCA’s registration and licensing provisions.
Even in 1968, the US senate determined that registration and licensing were violations of the 2nd amendment.
The GCA of 1968 was considered so repugnant in the way it was enforced by the BATF that Republican President Reagan attempted to amend the GCA of 1968 with the Firearm Owners’ Protection Act, which recognized “the right of citizens . . . to keep and bear arms under the second amendment.”
From 1968 to 1999, there was a legal and political “tug-of-war” between the “collective” and “individual” rights versions of the 2nd amendment.
The entire basis for the “collective” rights version rests on the so-called State militias and National Guard. What is interesting is that all National Guard members must swear allegiance to the Federal Power. In addition, the National Guard is subject to the Uniform Code of Military Justice, and is now classified as members of the armed forces. The National Guard is clearly not the militia spoken of in the 2nd amendment, nor are the State Defense Forces or other select militias.
Even in light of all the evidence against the National Guard being the militia spoken of in the 2nd Amendment it was not until the year 2001 that a decision was handed down that held any constitutional basis for its decision.
In US. v. Emerson the fifth circuit court ruled the 2nd amendment protected an individual right. The court cited the long case history, and historical record, as well as the original intent of the founding fathers.
The following year (2002) the Ninth circuit court in Silveira v. Lockyer rejected Emerson with an extended counter-analysis and reaffirmed its adherence to the “collective-right” view. Six members of the Ninth Circuit dissented from denial of rehearing en banc and endorsed an individual-right view.
On August 24th, 2004 the Department of Justice handed down its MEMORANDUM OPINION FOR THE ATTORNEY GENERAL on WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT.
Their conclusion was an overwhelming yes.
In 2008 the Supreme Court of the US once again heard a 2nd Amendment case in D.C. vs. Heller and stated:
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation
Whether intentionally or not the SCOTUS has effectively nullified the first clause of the 2nd Amendment (not that it needed nullifying) by stating that the right is NOT dependent on an individual’s service in a militia. Thus, due to Heller, we now have a situation in which there is no excuse for gun-control laws that ban, regulate, or restrict this right, they are all unconstitutional.
The dissenting opinions in Heller relied on the same tired old and worn-out lower court cases and “collective rights” lie that has been pushed since the Progressive-Socialists started trying to disarm the US population in early 20th Century.
The only question that remains due to Heller is whether or not the 14th Amendment will apply (which it should based on the historical, and judicial evidence) and the upcoming McDonald vs. City of Chicago case before the Supreme Court of the US at the time of this writing (March 20th, 2010). This case should affirm the supremacy of the Constitution and the Bill of Rights unless the court wishes to undermine the power of the 14th Amendment and the case law that supports it—which is highly doubtful.
The Progressive mantra-“When first you don’t succeed, lie, lie, again”
Therefore, I must now the ask the rhetorical question; where does this leave the “collective-rights” version of the 2nd amendment?
Any grade school student can answer that query; the “collective rights” lie is exactly where it was from a constitutional standpoint to begin with, as a sort of doppelganger Progressive-socialist tool that was trying to force itself over the original meaning in order to reshape the political landscape of American society and pave the way for a tyrannical Oligarchic state.
The Progressive-Socialists will not stop however. They will continue to peddle their lies, half-truths, and pedantic delusions of a “gun-free society” which will never exist.
China, the country with perhaps the strictest gun-control laws on the planet, also has one of the fastest growing gun-cultures. The Proletariat of China knows that only they can protect themselves from criminals, be they street-punk hoodlums or government jackbooted thugs.
The Proletariat of the world seems ravenous for arms to defend themselves and their brethren (the Bourgeoisie) from the Socialists and Corporatists that plague our planet. We here in the United States should be thankful that the founders of this country understood the evils of the mercantilists of their day and thus the Liberals (anti-Federalists mostly) embedded in our Bill of Rights the 2nd Amendment.
The Efficacy Argument
This leads me to the final argument made by the Progressive-Socialists: that being the efficacy of the militia in modern times.
The Radical-Leftists of the United States push this erroneous notion that the American people are incapable of resisting a tyrannical state should one manifest itself (and the Left does hope they can erect one). Their claim is that the technology and overwhelming firepower of the US military (if they went along with such a takeover) would be enough to maintain control under a totalitarian US government.
However, a cursory examination of the even the basic facts illustrates just how pathetic their argument is. If in fact, a group of Progressive-Socialists did successfully erect a dictatorship, would the armed citizenry be able to contend with it?
In 2009 alone there were 14,000,000 firearms sold in the United States. That’s more weaponry than the smallarms of 21 countries combined!
- People’s Republic of China: 2,255,000
- United States: 1,473,900
- India 1,414,000
- North Korea : 1,106,000
- Russia : 1,037,000
- Pakistan : 619,000
- South Korea: 687,000
- Iran: 545,000
- Turkey: 514,850
- Vietnam: 484,000
- Egypt: 450,000
- Myanmar: 428,250
- Indonesia: 400,000
- Brazil: 369,000
- Thailand: 306,600
- Syria: 296,000
- Republic of China (Taiwan): 290,000
- Colombia: 285,554
- Germany: 284,500
- Iraq: 273,618
- Sri Lanka: 266,700
- TOTAL: 13,785,972
Current estimates (according to Gun Owners of America) put the total number of gun-owners in the United States within a range from as low as 85,000,000 to as high at 100,000,000+ as of 2008, and that nearly half a billion (yes with a B) firearms are in private hands within the US.
If only 10% of the firearm owners in the United States were to “stand-up” against our hypothetical oppressive political regime in the US, that would constitute a force of at least 8.5-10+ million individuals. This is over double the total number of military combat forces and Federal combat police forces worldwide, never mind the continental US.
Therefore, it is painfully clear that the efficacy of the militia is NOT in doubt. Such a force is a deterrent to any (sane) political party determined to create a tyranny in the US—although an insane one might still try.
As gun-control is clearly unconstitutional under the 2nd amendment, 14th amendment, and the 9th amendment, one must ask oneself, WHY do the courts continue to support it?
It was crystal-clear in Marbury v. Madison, (1803), what the role and extent of power of the Federal Constitution possessed when chief justice John Marshall stated:
“…So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”
“If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.”
This sentiment was again reiterated a decade later in M’Culloch v. Maryland, (1819), when the SCOTUS stated that the constitution was established as the supreme law of the land and all inferior statutory and state law must concur with it or be null and void.
Therefore, I ask why has the Supreme Court not given a definitive decision on this subject and rendered all gun-control unconstitutional? As was done over abortion in Roe v. Wade, and was done to all the laws that violated the rights of blacks or homosexuals, none of which is even mentioned in the Bill of Rights.
The answers to these questions are basic and can be found as far back as Aristotle when he said in his “Politics, Chapter 10, paragraph 4:”
“Both oligarch and tyrant mistrust the people, and therefore deprive them of their arms.”
Our Republic is a Constitutional one. That means that the relationship between government and the people is NOT a Master/Slave or Ruler/Subject relationship. It is not a system set up where tyrants and oligarchs can rule by decree or on a whim. It is government that is governed by laws agreed too and set up by the citizenry.
The very definition of a Constitutional Republic is as follows;
“Constitutionalism is descriptive of a complicated concept, deeply imbedded in historical experience, which subjects the officials who exercise governmental powers to the limitations of a higher law. Constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgment or mere flat of public officials.-(from Constitutionalism: Ancient and Modern by Charles H. McIlwain”
This has been understood in the United States as being true from the times of M’Culloch v. Maryland and Marbury v. Madison in the early 1800s up to Education v. Barnette. The Constitution is SUPREME in its power and the only proper way of “upgrading” the constitution was spelled out clearly within the body of the constitution as stated in Education v. Barnette:
“….the very heart of the American concept of constitutionalism, that the constitution is a fundamental written law superior in obligation to all other forms of law. Indeed, there is a standard for measuring the justness of governmental acts which is not only binding upon all agents of the government, but which is independent even of the will of the current popular majority. While the American system is committed to majority rule as being preferable to rule by elites or by divine right, it is also committed to the proposition that government must be righteous and just, in spite of majority rule. These objectives are sought through a variety of devices, including judicial review by an independent judiciary, an enforceable Bill of Rights, the guaranty of equality before the law, the diffusion of governmental power through territorial federalism and functional separation of powers, checks and balances, and the subordination of military to civil authority. The government is obliged to observe the fundamental law, and the Constitution cannot be changed except in some special way.”
That special way is only through the amendment process, which is exactly what Chief Justice John Marshall said in Marbury v. Madison back in 1803.
As the 2nd amendment has not been repealed, nor has any amendment been passed to amend it or replace it, all gun-control law stands in opposition to the Federal Constitution.
Slavery was certainly a vice of the early colonies, as was the disenfranchisement of women. Both of which were remedied through the proper special legislation, the 13th amendment, 14th amendment, and the 19th amendment, respectively.
Thus we, the people of the United States, must demand that our elected representatives, judges, and officials illustrate to our satisfaction an amendment which gives the Federal or State legislatures the power to ban weapons or any kind, or to prohibit the militia from training, or declares the National Guard the militia, or allows for any form of “reasonable gun-control.”
It does not exist. It is, as I have said already, nonsense, a political lie that has been pushed upon this populous for the purpose of general disarmament of the militia in clear violation of the 2nd amendment.
Final thoughts on why gun-control is pushed on the citizenry (ideology behind it)
When the Liberals like Thomas Jefferson, George Mason, and Patrick Henry took to arms and freed the colonies, it sent a shudder through the souls of the tyrants of the world: in particular the monarchs of Europe. We should remember the words of some of the world’s most famous Socialists (Progressive or otherwise), many of whom were of the aristocracy of Europe, to better understand their reasons for disarming the Proletariat by instituting gun-control.
The first real successful Scientific-Socialist whose abhorrent theories took root was Karl Marx. He stated that, “The meaning of peace is the absence of opposition to Socialism.” Therefore, when Progressives talk about gun-control being necessary for peace or to reduce violence, what they’re really saying is that they are trying to put an end to any resistance to their policies or rules.
Gun-control really isn’t about crime, or guns, it is now, as it always has been, about control.
Marx went on to say later in one of his speeches, “My object in life is to dethrone God and destroy capitalism.” Again, we see here the attitude of the elitist. There can be no god in the Scientific-Socialist system since the psychopaths and megalomaniacs who seek to impose such a horrible system of government on the proletariat see themselves as Nietzsche’s Übermensch. Thus, the rulers in a Socialist State think they are God and an armed proletariat could unseat that power and prove that they are mere men—oh the terror (sarcasm).
The first real leader to put Marxian (Scientific Socialism) theory into practice was Vladimir Lenin. At the start of the Revolution Lenin told the proletarian revolutionaries:
“Only an armed people can be the real bulwark of popular liberty. The sooner the proletariat succeeds in arming, and the longer it holds its fighting positions as striker and revolutionary, the sooner will the army begin to waver; more and more soldiers will at last begin to realise what they are doing and they will join sides with the people against the fiends, against the tyrant, against the murderers of defenceless workers and of their wives and children.”
Nearly as soon as the Bolsheviks had taken control of the Russian government Lenin turned his back on the people. He stated in a speech just after the revolution that, “A system of licensing and registration is the perfect device to deny gun ownership to the bourgeoisie.”
His corrupt successor, Joseph Stalin, put into practice what Marx only dreamed about in written word. It was Stalin who said,
“If the opposition (citizen) disarms, well and good. If it refuses to disarm, we shall disarm it ourselves.”
Uncle Joe saw no hindrance in spreading this ideological approach to transforming the world into a Socialist State. He had his sights clearly set on the United States, as he said, “America is like a healthy body and its resistance is threefold: its patriotism, its morality, and its spiritual life. If we can undermine these three areas, America will collapse from within.”
Gun-control is certainly not the only ailment which currently plagues the US like a festering cancer, no, it is simply one of the tumors that metastasized from the larger whole of Progressive philosophy that has infected every corner of the media, academia, and now government. Gun-control is a symptom of this fatal affliction not the cause.
Nikita Khrushchev, who succeeded Stalin, made the same observation:
“We can’t expect the American People to jump from Capitalism to Communism, but we can assist their elected leaders in giving them small doses of Socialism, until they awaken one day to find that they have Communism.”
Khrushchev was right, and it was far more then just arrogant words spoken to try and frighten the US and the western world.
Yuri Bezmenov, a Russian born, KGB trained subversion expert explained to G. Edward Griffin in a 1984 interview how the Soviet Union influenced Western media to bring about so called “real change” in the West. He describes the stages of the communist takeover and its implementation.
“The main emphasis of the KGB has not been in the area of intelligence gathering. Only 15% of time, money and man-power is spent on espionage. The other 85% is spent on “ideological subversion” or “active measures”. It is a great brain-washing process. It takes a long time.”
“The process consists of 4 stages, one of which is called “Demoralization”. This stage takes between 15 and 20 years. This is because this is the minimum number of years required to educate one generation of students. The process exposes the students to the ideology of the enemy i.e. the Marxism-Leninism ideology and is pumped into the soft heads of young students for at least 3 generations without being challenged or contra-balanced by the ideology of the basic values of American patriotism.”
“Most of the people who graduated in the ’60s, the drop-outs, the half-baked intellectuals now occupy the positions of power in the government, civil service, business, mass media and education system. America is now stuck with them.”
The process of demoralization is then complete and irreversible. It will take another 15 to 20 years to wash away the intellectual contamination and corruption of values. A person who is demoralized is unable to process truth.”
If the Soviets could think of this system then surely the Progressive-Socialists could do so as well. In fact, the whole history of the Progressive movement within the US and its European counterpart, the Fabian movement, has engaged in this very process.
One only has to look at the President who gave us the so-called “New Deal,” Franklin D. Roosevelt to see this process in action. Roosevelt himself said:
“I do not believe in communism any more than you do, but there is nothing wrong with the communists in this country. Several of the best friends I have are Communists.”
Fast-forward from the “New Deal” thirty years to 1963 and you find Linden B. Johnson’s “Great Society,” was supposed to help the inner city communities and poor black families. It did not.
According to Star Parker’s Coalition for Urban Renewal (CURE) the effects of LBJ’s “Great Society” programs has been as follows:
- 60 percent of black children grow up in fatherless homes.
- 800,000 black men are in jail or prison.
- 70 percent of black babies are born to unwed mothers.
- Over 300,000 black babies are aborted annually.
- 50 percent of new AIDS cases are in the black community.
- Almost half of young black men in America’s cities are neither working nor in school. What we have here is a ticking time bomb waiting to explode.
Not only did the “Great Society” spawn an entire slew of crippling new entitlement programs, but also it was the primary vehicle for the passage of the Gun Control Act of 1968.
Another thirty years later we find the Progressive agenda alive and well with President William Jefferson Clinton who pushed the envelope against the constitution even further. He went so far as to say, “We can’t be so fixated on our desire to preserve the rights of ordinary Americans…”
The Brady Law, “Assault Weapons Ban,” and Lautenberg Amendment were all part of Clinton’s legacy of unconstitutional, Progressive, gun-control laws which further eroded the 2nd Amendment.
Now another two decades have nearly passed and our current President, Barrack Obama, is plagued with the same ilk of anti-American, Progressive-Socialist, elitists who have gone so far as to label gun-owners and military Vets as potential terrorists.
If this is so called “progress” then what we as a country really need is to hit the “system restore” button and regress back to a more sensible state. That being the time when the constitution reigned supreme and the 2nd Amendment meant what it says, not what some Progressive-Socialist wants it to say.
With that I say to my fellow Proletariat and Bourgeoisie brothers and sisters, let us preserve the only means we have against oppression and slavery, let us keep and bear the instruments of our freedom and never relinquish them to those who view us as chattel.
 3 Debates on the Adoption of the Federal Constitution 326 (J. Elliot ed., 1836).
 (Source: in the Virginia Convention on the ratification of the Constitution, June 14, 1788, in Debates in the Several State Conventions on the Adoption of the Federal Constitution,_ Jonathan Elliot, ed., v.3 p.386 (Philadelphia, 1836)
 (Source: I Annals of Congress 434, June 8, 1789)
 See Sir Thomas Blackstone’s Commentaries on the Laws of England
 (source “Guns and Rifles of the World by Howard L. Blackmore Copyright 1965, ISBN: 65-17169)
 Amyette v. State, 21 Tenn. 154, 159 (1840)
 1 Ga. (1 Kel.) 243, 249-51 (1846)
 116 U.S. 252 (1886)
 60 U.S. (19 How.) 393 (1857)
 92 U.S. 542 (1875)
 153 U.S. 535 (1894)
 83 U.S. (16 Wall.) 36 (1872)
 50 Tenn. 165, 182, 8 Am.Rep. 8, 16 (1871)
 165 U.S. 275, 281 (1897)
 Book V, Ch. 1
 Osgood, Vol. 1, ch. XIII
 (Adamson v. California, 332 U.S. 46 (1947) and United States v. Tot (1942)), 1950s (Johnson v. Eisentrager, 339 U.S. 763 (1950)
 Federal Firearms Act: Hearings Before the Subcomm. to Investigative Juvenile Delinquency of the Senate Comm. on the Judiciary, 89th Cong. 40-41 in 1965,
 (Pub. L. No. 99-308, § 1(b), 100 Stat. 449, 449 (1986), 18 U.S.C. § 921 note (2000) (law signed by President Reagan)
 10 U.S.C. § 304 (Supp. 1988)
 (10 U.S.C. § 802(a)(3) (Supp. 1988)
 (10 U.S.C. § 311 (Supp. 1988)
 (The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people)
 (319 U.S. 624, 638), (Flag salute case, 1943)
 From an address to Western Ambassadors at the Polish embassy in Moscow on November 18, 1956
 Source: The New York Times, May 6th, 1933
 USA Today, March 11, 1993