Friday, January 18, 2008

Our Dysfunctional Republic Part 12

The Second Amendment

As I continue covering the Bill of Rights I now would like to move on to the second amendment. Out of all the segments I have written, this may prove to be the longest and most in depth of all. Guns have been a part of my life since I was a child. I feel that they are an essential right that is protected by the Bill of Rights. If we had half the gun control laws we do now back in 1776 we would have lost the American Revolution. Firearms also helped settle the west as our country grew. Finally they provide a means for the people to protect themselves from criminals.

The second amendment states, "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."

There has been much disagreement upon the literal meaning of the phrasing of this amendment. The right to keep and bear has been argued to be in support of the militia. It has been argued that the National Guard fulfills the requirement of a militia, and therefore the citizens themselves have no need, and no right to keep and bear arms for their own use. There have been numerous cases where the courts have ruled that there is a clear distinction between the right of a citizen to keep and bear arms for service in the militia, and for personal use. Before I cover those decisions I would like to go over a bit of history on the ownership and usage of firearms.

In the early period of our nations history it was common for all citizens to be well armed. Thomas Jefferson had a small armory in his home and told his nephew to give up all other sports in favor of hunting.

In 1623, Virginia made it mandatory that its colonists travel "well armed". In 1631 it went further by requiring colonists to engage in target practice on Sunday and to bring their firearms to church. In 1658 Virginia required every household to have a functioning firearm within the home and in 1673 it even provided for a citizen who was too poor to buy their own could have one purchased for them by the government.

Virginia was not alone in requiring its citizens to own firearms. In 1644 Massachusetts the first session of the legislature ordered that all men, to include indentured servants, own firearms. They even went so far as to impose a 6 shilling fine upon any citizen who was not armed.

In 1903 Congress passed the Militia Act which created the National Guard Bureau. This Bureau is the federal instrument responsible for the administration of the National Guard, which some claim is our modern day militia. They claim that this Act does away with the need, and rights of individual citizens to keep and bear arms.

However, this premise goes against what many of our founding fathers thought about the militia. For instance, Richard Henry Lee described the militia as, "The militia, when properly formed, are in fact the people themselves,...all men capable of bearing arms..." In 1788 Tench Coxe wrote, "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 shall 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."

This has since been reaffirmed by our Congress as recently as 1982 when the Subcommittee on the Constitution issued a report for use by the Committee on the Judiciary, entitled The Right to Keep and Bear Arms.

From that report we find the following quote, "These commentators contend instead that the amendment's preamble regarding the necessity of a "well regulated militia . . . to a free state" means that the right to keep and bear arms applies only to a National Guard. Such a reading fails to note that the Framers used the term "militia" to relate to every citizen capable of bearing arms, and that the Congress has established the present National Guard under its own power to raise armies, expressly stating that it was not doing so under its power to organize and arm the militia."

That premise is once again clarified in H.R. Report No. 141,73d Cong., 1st session at 2-5 (1933), "That the National Guard is not the "Militia" referred to in the second amendment is even clearer today. Congress has organized the National Guard under its power to "raise and support armies" and not its power to "Provide for the organizing, arming and disciplining the Militia". This Congress chose to do in the interests of organizing reserve military units which were not limited in deployment by the strictures of our power over the constitutional militia, which can be called forth only "to execute the laws of the Union, suppress insurrections and repel invasions." The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. Sec. 311(a).

If the National Guard does not qualify as the militia, exactly what does? Patrick Henry once said, "that a well regulated militia, composed of gentlemen and freemen, is the natural strength and only security of a free government...."

This clearly defines that the militia is composed of gentlemen and freemen. In other words, all citizens. The possession of firearms was also meant to provide a way for the people to protect their liberties from a government that might seek to infringe upon them.

Richard Henry Lee, a delegate from Virginia to the Constitutional Convention stated, "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."

Noah Webster wrote a pamphlet which was aimed at swaying the people of Pennsylvania towards ratification of the Constitution. In his pamphlet he commented,
"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword, because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States."

George Washington once said, “Firearms stand next in importance to the Constitution itself. They are the American people's liberty teeth and keystone under independence. To secure peace, securely and happiness, the rifle and the pistol are equally indispensable. The very atmosphere of firearms everywhere restrains evil interference - they deserve a place of honor with all that is good.”

Washington not only believed that firearms were our 'liberty teeth and keystone under independence', he also believed “A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government.”

Finally, Samuel Adams stated, "The Constitution shall never be prevent the people of the United States who are peaceable citizens from keeping their own arms."

It is clear, to anyone who would read the history of our nation, that one of the greatest fears of our founding fathers was the usurpation of power and the infringement of liberties by government. They wanted to ensure that the people were well armed and capable of fighting such infringement should they arise again. “No free man shall ever be de-barred the use of arms. The strongest reason for the people to retain their right to keep and bear arms is as a last resort to protect themselves against tyranny in government."
Thomas Jefferson

Throughout our nations early history our courts have upheld that Constitutional right. In 1813, Kentucky enacted the very first concealed weapon statute in our nations history. In 1822, the Kentucky Court of Appeals struck down that law as a violation of the state constitutional right to keep and bear arms, "And can there be entertained a reasonable doubt but the provisions of that act import a restraint on the right of the citizen to bear arms? The court apprehends it not. The right existed at the adoption of the Constitution; it then had no limit short of the moral power of the citizens to exercise it, and in fact consisted of nothing else but the liberty of the citizen to bear arms."
Bliss vs. Commonwealth, 12 Ken. (2 Litt.) 90, 92 (1822).

In 1837, Georgia banned the sale of pistols and other weapons. In Nunn v. State, the Georgia Supreme Court ruled that the statute was unconstitutional under the second amendment. The court ruled that, "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 merely such as are used by the militia, shall not be infringed, curtailed, or broken in on, in the slightest degree; and all this for the important end to be attained: the rearing up and qualifying of a well regulated militia, so vitally necessary to the security of a free state."

In United States v. Cruikshank, the United States Supreme Court ruled that no indictment could be brought against the defendant since the right, "of bearing arms for a lawful purpose" is "not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence."

These cases plainly state that our right to keep and bear arms cannot be infringed upon by our government, whether said government be local, state, or federal. The right to keep and bear is guaranteed under the Constitution.

Even for those who would still argue that we have no fear of our government abusing their power and therefore we have no need for firearms, I would like you to consider the following.

John Adams once said that, "Arms in the hands of citizens may be used at individual private self defense." Thomas Jefferson said, "Laws that forbid the carrying of arms. . . disarm only those who are neither inclined nor determined to commit crimes. . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."

It is argued that we no longer need firearms to protect ourselves since we have local police forces which are there to protect us from crime. Professor Don. B. Kates, Jr., an eminent civil rights lawyer and criminologist states, "Even if all 500,000 American police officers were assigned to patrol, they could not protect 240 million citizens from upwards of 10 million criminals who enjoy the luxury of deciding when and where to strike. But we have nothing like 500,000 patrol officers; to determine how many police are actually available for any one shift, we must divide the 500,000 by four (three shifts per day, plus officers who have days off, are on sick leave, etc.). The resulting number must be cut in half to account for officers assigned to investigations, juvenile, records, laboratory, traffic, etc., rather than patrol."

Our police can not be everywhere all the time. Our courts have ruled that they are not liable when they cannot protect us from harm. In Warren v. District of Columbia two women were upstairs in a townhouse when they heard their roommate, a third woman, being attacked downstairs by intruders. They phoned the police several times and were assured that officers were on the way. After about 30 minutes, when their roommate's screams had stopped, they assumed the police had finally arrived. When the two women went downstairs they saw that in fact the police never came, but the intruders were still there. As the Warren court graphically states in the opinion: "For the next fourteen hours the women were held captive, raped, robbed, beaten, forced to commit sexual acts upon each other, and made to submit to the sexual demands of their attackers."

The three women sued the District of Columbia for failing to protect them, but D.C.'s highest court exonerated the District and its police, saying that it is a "fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen."

Some states, such as California, have specifically barred lawsuits against State or local officials for failing to protect by enacting statutes such as California's Government Code, Sections 821, 845, and 846, which state, "Neither a public entity or a public employee [may be sued] for failure to provide adequate police protection or service, failure to prevent the commission of crimes and failure to apprehend criminals."

It is therefore obvious that the responsibility for our own personal protection lies with us as individuals. We cannot do that if our right to keep and bear arms is infringed upon. In the 1950's a Ms. Riss was being harassed by a former boyfriend. The police could not station an officer at her residence to protect her so she applied for a gun permit. She was refused. On the eve of her engagement party her former boyfriend through acid in her face, blinding and disfiguring her. She sued the city for failing to protect her, and she lost her case. The lone dissenting justice of the court stated, "What makes the City's position [denying any obligation to protect the woman] particularly difficult to understand is that, in conformity to the dictates of the law [she] did not carry any weapon for self-defense. Thus, by a rather bitter irony she was required to rely for protection on the City of New York which now denies all responsibility to her."

Her inability to get a permit to carry a weapon would have been seen as ludicrous by our founders in Virginia and Massachusetts in the 1600's. This is not the only infringement upon our right to keep and bear arms. It is ludicrous that we are not to expect the police to defend us against crime, yet we are prohibited by laws and statutes from possessing arms to defend ourselves.

Numerous laws have also been passed regulating what type of gun you may own, making the possession of certain types a crime. Sawed off shotguns, automatic rifles and many other weapons are banned, all in violation of our Constitutional rights.

In the United States v. Miller (United States v. Miller, 307 U.S. 175 [1939]) a prosecution for carrying a sawed off shotgun was dismissed before trial on second amendment grounds. The court took no evidence as to the nature and type of the firearm. In their ruling they stated, "must be interpreted and applied with that end in view", when combined with the court's statement that all constitutional sources "show plainly enough that the militia comprised all males physically capable of acting in concert for the common defense.... these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time," Yet today a sawed off shotgun will land you in prison.

Not only are laws in place which make it a crime to own certain types of weapons, the government is attempting to make it harder for you to obtain one by passing strict rules upon firearms dealers. Witness the following law in California,
(D) Commencing January 1, 2003, except as authorized by the department, no firearms dealer may deliver a handgun unless the recipient performs a safe handling demonstration with that handgun. The demonstration shall commence with the handgun unloaded and locked with the firearm safety device with which it is required to be delivered, if applicable. While maintaining muzzle awareness, that is, the firearm is pointed in a safe direction, preferably down at the ground, and trigger discipline, that is, the trigger finger is outside of the trigger guard and along side of the handgun frame, at all times, the handgun recipient shall correctly and safely perform the following:

(i) If the handgun is a semiautomatic pistol:
(I) Remove the magazine.
(II) Lock the slide back. If the model of firearm does not allow the slide to be locked back, pull the slide back, visually and physically check the chamber to ensure that it is clear.
(III) Visually and physically inspect the chamber, to ensure that the handgun is unloaded.
(IV) Remove the firearm safety device, if applicable. If the firearm safety device prevents any of the previous steps, remove the firearm safety device during the appropriate step.
(V) Load one bright orange, red, or other readily identifiable dummy round into the magazine. If no readily identifiable dummy round is available, an empty cartridge casing with an empty primer pocket may be used.
(VI) Insert the magazine into the magazine well of the firearm.
(VII) Manipulate the slide release or pull back and release the slide. (VIII) Remove the magazine.
(IX) Visually inspect the chamber to reveal that a round can be chambered with the magazine removed.
(X) Lock the slide back to eject the bright orange, red, or other readily identifiable dummy round. If the handgun is of a model that does not allow the slide to be locked back, pull the slide back and physically check the chamber to ensure that the chamber is clear. If no readily identifiable dummy round is available, an empty cartridge casing with an empty primer pocket may be used.
(XI) Apply the safety, if applicable.
(XII) Apply the firearm safety device, if applicable.

When a firearms dealer is found to be in violation of the laws our government has put into place for the sale of guns they can be raided, their business shut down, and their lives ruined. All this over something as simple as some clerical errors or failure to follow proper procedure. Yet according to a CBS news story, former Secretary of Defense, Donald Rumsfeld was quoted as saying, "according to some estimates we cannot track $2.3 trillion in transactions." How can we allow the life and prosperity of a small firearms dealer ruined, while the biggest procurer of firearms and weaponry in the country is so incompetent that they cannot keep track of $2.3 trillion in transactions?

I understand that may of these laws were passed to keep guns out of the hands of criminals and that crime is indeed a serious problem in this country. However, disarming the general population who are peaceable citizens is a violation of the Constitution and it is not the answer. How many gun control laws have been passed? Yet crime still exists. Again, from the Subcommittee on the Constitution we find the following, "If gun laws in fact worked, the sponsors of this type of legislation should have no difficulty drawing upon long lists of examples of crime rates reduced by such legislation. That they cannot do so after a century and a half of trying — that they must sweep under the rug the southern attempts at gun control in the 1870-1910 period, the northeastern attempts in the 1920-1939 period, the attempts at both Federal and State levels in 1965-1976 — establishes the repeated, complete and inevitable failure of gun laws to control serious crime."

It is apparent that gun control laws do nothing to control crime, and they only make it next to impossible for us to protect ourselves from those who would commit crimes. It is also clear that the police cannot be everywhere all the time and that they are not totally responsible for our own safety. The possession of firearms is a Constitutional protection provided so that we can defend ourselves, raise a well armed militia, which according to 10 U.S.C. Sec. 311(a) the National Guard is not considered to be a militia, and finally to 'protect themselves against tyranny in government.'

As a final thought, I grew up with guns. I was shooting guns by the time I was 5 yrs old. I learned safe handling practices and I have never pointed a weapon at anyone, even jokingly. If you put a gun on a table in a room full of people it will not harm anyone by itself. It takes an individual to pick it up and use it to do any harm. As Theodore Roosevelt once said, "A vote is like a rifle; its usefulness depends upon the character of the user."

The right to keep and bear arms is a right that is guaranteed by the Constitution and is vital for the people if they wish to remain free. I could have saved all the time and effort of writing this if people would just understand as James Madison once said, "The Constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation where the governments are afraid to trust the people with arms."

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