The Smallest Minority |
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The smallest minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities. - Ayn Rand "I don't just want gun rights... I want individual liberty, a culture of self-reliance....I want the whole bloody thing." KdT
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Wahabism Delenda Est   
Hey, FEC!  BITE ME! I'm a Member of the McCain-Feingold INSURRECTION!   "Jeez, Kevin... calling you an asshole would be a huge understatement, wouldn't it?" -Jack Cluth, The People's Republic of Seabrook (Coming from you, Jack, it's an honor.)  email: gunrightsAT comcastDOTnet INVITATION: If you have never shot a firearm, regardless of your position on the right to arms, and if you live near or visit the Tucson, AZ metropolitan area, I invite you to go shooting for a day. I will provide the arms, ammunition, targets, safety equipment, range fees and instruction. All you have to do is show up. 4 Takers To Date DO YOU LIVE SOMEWHERE ELSE and want to try shooting? Click HERE  Proud Gun-blogging member of the Pajamahadeen since May, 2003!
Debates: "The Commentary" A OLD discussion on gun control between me and an Irishman living in London Start here. UPDATED! Now with archive! Post #1 by Alex, a Guest A multi-post discussion hosted here at TSM My short exchange with Professor Saul Cornell of the Second Amendment Research Center Best Posts: The "Rights" Discussion: What is a "Right?" What is a "Right"? Revisited, Part I Part II Rights, Morality, Idealism & Pragmatism, Part I Part II Part III Part IV The United Federation of Planets Is the Government Responsible for Your Protection? Part I & Part II 1975 in Washington, D.C. vs. 2004 in Canton, Ohio Go Ahead, Rely on the Government for Your Protection The Other Side Liberal vs. Conservative: Both are Necessary The Blog that Ate Poughkeepsie Updated and restated as: Of Laws and Sausages Militias A Mistake a Free People Get to Make Only Once This is NOT What I Wanted to Read TRUST The Lying "News" Media, Pt. II Say WHAT? Bias? What Bias? Agenda? What Agenda? The Church of the MSM and the New Reformation Let's See if I Can "Germinate an Intelligent Thought" Here The ACLU Hasn't Changed its Tune They Never EVER Stop It is Not the Business of Government Five Reasons Why It ISN'T They Keep Making Better Fools Five Month Investigation, 10 Tracer Rounds, Two Felony Convictions That Sumbitch Ain't been BORN! On Guillotines and Gibbets England Slides Further Towards Bondage Pressing the "RESET" Button Freedom's Just Another Word for Nothin' Left To Lose A Terrible Resolve The Courts Will Not Save Us Trilogy: The Road to Hell is Paved with Good Intentions "Game Over, Man. Game Over." An Important Question And the denouement: Hudson Was Wrong The Dangerous Victims Trilogy: "(I)t's most important that all potential victims be as dangerous as they can" Violence and the Social Contract Governments, Criminals, and Dangerous Victims In the same vein: Those Without Swords Can Still Die Upon Them The True Believers Trilogy: True Believers March of the Lemmings Reasonable People Also in the same vein: Tough History Coming Technical Dissertations Why Ballistic Fingerprinting Doesn't (And Won't) Work Spin, Spin, Spin Speaking of Teddy Kennedy... This is the Kind of Thing That REALLY IRRITATES ME Questions from the Audience?
BLOGROLL:
PROTESTWARRIOR Some people who are taking the fight to the Left. And some GREAT T-shirts, too. DAILY READS I need a longer day! Day by Day InstaPundit Lileks' The Bleat Kim du Toit Mostly Cajun View from the Porch Of Arms and the Law TFS Magnum Ravenwood's Universe Irons in the Fire Say Uncle TRUE EXCELLENCE American Digest The Belmont Club The Volokh Conspiracy Michael Yon Varifrank Eject!Eject!Eject! Eternity Road Oleg Volk Personal Effects ON INDEFINITE HIATUS USS Clueless The Safety Valve Ipse Dixit The Lopsided Poopdeck Acidman (RIP) Skywritings Publicola D.C. Thorton Smoke on the Water OTHER GUN/RIGHTS BLOGS Airborne Combat Engineer AlphaPatriot Alphecca American Dinosaur A Day in the Life of an Ambulance Driver The Anarchangel The Anti-Idiotarian Rottweiler Argghhh! The Bitch Girls Boots and Sabers The Breda Fallacy Call Me Ahab Carnaby Fudge Clayton Cramer Cogito Ergo Geek Countertop Chronicles Cowboy Blob Critical Mastiff Cryptic Subterranean FreedomSight From the Heartland Fun Turns to Tragedy!!! The Geek with a .45 Gunwatch Heartless Libertarian Hell in a Handbasket Individ Justin Buist's Blog The LawDog Files Lead and Gold Les Jones Mad Ogre The Michael Bane Blog Moral Flexibility Mr. Completely Murdoc Online The Munchkin Wrangler Ninth Stage No Looking Backwards No Quarters Oscar Poppa Outrageous Malfunction Pass the ammo Posse Incitatus Random Nuclear Strikes Reasonablenut Resistance is Futile! Sandcastles and Cubicles SlagleRock's Slaughterhouse Snowflakes in Hell Surly Curmudgeon Texican Tattler The Ten Ring South Park Pundit Triggerfinger The View From North Central Idaho Vox The War on Guns Weck Up To Thees! Wince and Nod Xavier Thoughts .45 Caliber Justice BLOGGERS I'VE MET Cowboy Blob Kim du Toit Mrs. du Toit Serenity Smoke on the Water The Anti-Idiotarian Rottweiler On the Patio Fodder of Ride Fast & Shoot Straight Rivrdog Say Uncle JimmyB, The Conservative UAW Guy KeeWee Mr. Completely Og the Neanderpundit USCitizen of Traction Control World Examiner Joe Huffman Chris & Mel John and Beth Donovan Sebastian of Snowflakes in Hell DirtCrashr of Anthroblogogy Rob of The Kitchen Maj. Chuck Ziegenfuss of From My Position... On the Way! Matthew of Triggerfinger Sarah of Carnaby Fudge KevinP who maintains this excellent Wikipedia entry on the Joyce Foundation Dave Hardy Clayton Cramer Primeval Papa FURRINERS Kiwi Pundit The Policeman's Blog Free Market Fairy Tales Samizdata Musing The Second Version OTHER GOOD READS Baby Troll Blog The Winds of Change Sense of Events The Everlasting Phelps Knowledge is Power QandO Blog Radio Blogger THE PSYCHE BRIGADE Dr. Sanity Dr. Helen One Cosmos ShrinkWrapped Neo-Neocon Sigmund, Carl, and Alfred OTHER AZ BLOGS Useful Fools Zonitics Jackalope Pursuivant Primeval Papa DEPT. OF OUR COLLAPSING SCHOOLS Joanne Jacobs EducatioNation Teacher, Teacher The Irascible Professor OTHERS KIND ENOUGH TO BLOGROLL ME Adding to the Noise America's North Shore Journal Anthroblogogy Atomic Nerds Baboon Pirates Bad Dogs and Such The Bastidge Blognomicon Charming, Just Charming Chublogga! Classical Values Common Sense and Wonder Combs Spouts Off Conservative Scalawag The Crazy Rants of Samantha Burns damnum absque injuria David Drake Digital Retrograde The Dougout The Emigre with a Digital Cluebat Empire of Dirt Ether Mind The Fabulous Mint 400 The Freeholder Heinleinblog Impearls Interested-Participant Isaac Schrödinger Josh's Weblog Keith Devens Kill Righty Libertopia The Liberty Zone The Liberty Papers Living in the Surreal World Mike's Eyes Miss O'Hara The Mind of Mog The Ministry of Minor Perfidy MonkeyWatch Adam Lawson NashvilleFiles Near the Salty City PervasiveLight Pierre Legrand's Pink Flamingo Bar Practical Penumbra The Passing Parade Right As Usual Rough Diamond Rules for Rulers Sharp as a Marble She Who Will Be Obeyed! The Speculist Sperari Striderweb A Trainwreck in Maxwell Upbeat Cynicism (Ian Hamet) The Warren Warthog's Rants Wasted Electrons Wheels within Wheels Wicked Thoughts  
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Tuesday, June 03, 2003 The Blog that Ate Poughkeepsie (I'm currently engaged (if he ever responds again) in a debate with a gentleman from Ireland who currently lives in England. The debate is going on over at The Commentary, a blog that he runs that I don't have administrator priviledges at. This is a slightly reworked post from over there that I wanted to repost here because, damnit, I'm proud of it. It was a lot of work. Bear in mind when you read this that I'm explaining this as though the reader has no first-hand knowledge of the American system of government.) The United States was established with the ideal that it would be a government of the Rule of Law. As Benjamin Franklin put it upon being asked what form of government the recently concluded Constitutional Convention had wrought, "A Republic, if you can keep it." You have to remember at all times, government is made of and run by humans. Henry Louis Mencken wrote: "The government consists of a gang of men exactly like you and me. They have, taking one with another, no special talent for the business of government; they have only a talent for getting and holding office. Their principal device to that end is to search out groups who pant and pine for something they can't get and to promise to give it to them. Nine times out of ten that promise is worth nothing. The tenth time is made good by looting A to satisfy B. In other words, government is a broker in pillage, and every election is sort of an advance auction sale of stolen goods."That is a VERY American attitude. People call America a democracy all the time. Even our government officials do, but it was never supposed to be a democracy. It's supposed to be a representative republic, and those representatives were to be chosen from a small and self-selecting pool. The system of elections wasn't intended to be a "one man, one vote" democracy, but a meritocracy where the people making and enforcing the rules had a talent for government. And it worked very, very well for a while. Honestly, the system as it was established has worked well for over 200 years, being that it was constructed in the full knowledge that power both corrupts and attracts the corrupt. Unfortunately, the accumulated crap produced by those whom Mencken described (and he wrote that probably in the early 1930's) is apparently catching up with us. This is nowhere more apparent (if you study this stuff) than in the battle for the right to arms. It has become a litmus test for freedom. Let me explain. (And pardon me - this is going to take a while, but it directly addresses your question and is the heart of the whole right-to-arms thing.) You ask: "...let's say a liberal government came to power and wanted to ban gun ownership. It would not be able to, because of the Second Amendment, right?" That's the question, all right. Here's how the whole Rule of Law thing is supposed to work in our Representative Republic. There's a set of rules on how the government itself is supposed to be established - division of powers, rules for electing officials, appointing officials, so on and so forth. There's a list of things that the government is prohibited from screwing with, i.e., the Bill of Rights. There's a set of rules laid out in the Constitution for modifying the Constitution as times and conditions change. That modification process is made intentionally difficult, because the need must be great and there must be consensus that the change is necessary. No modifying the foundation of our government on a whim. No 50% +1 vote is sufficient to, say, expel all left-handed redheads from the nation. (Note that this hasn't stopped us from making some bonehead changes, such as Prohibition and the popular election of Senators.) On legal questions relating to the Constitution and the Bill of Rights, the various courts are supposed to defer to the intentions of the Founders. Thomas Jefferson put it this way in 1823: "On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."When it comes to the Second Amendment there is no evidence that anything other than an individual right to arms was intended, and abundant evidence that an individual right is what was intended. Court cases dating up to the Civil War and beyond make that apparent. The most illuminative of these cases is also one of the most reviled. It is Scott v. Sanford, better known as "Dred Scott," and it occurred just prior to the Civil War. In fact, it has been called "the match that ignited the Civil War." If you're interested, go look it up. The central theme of the case was whether a slave, having been taken by his owner to a "free" state was, in fact, free. The Supreme Court in the 7-2 opinion written by Chief Justice Taney not only said "no," it said that "free" blacks were not and could not be citizens, because: (Citizenship) "would give to persons of the negro race, who were recognized 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." (My emphasis)FIFTY-EIGHT YEARS after the ratification of the Constitution and the Bill of Rights, the highest court in the land acknowledged that the right to keep and bear arms was an individual one, and no mention of the militia, well-regulated or otherwise was made. And the court found it necessary to deny all of the rights guaranteed to citizens to free blacks - why? To ensure public safety. Further, shortly after the war (which was fought in no small part to determine just who "the People" were and was hell on the "public safety") the highest court in the land once again stepped on its penis, allowing the denial of the right to arms to the newly established citizens who had been made such by the 13th Amendment, and who were guaranteed equal protection under the law by the 14th Amendment. In U.S. v Cruikshank the Supreme Court declared not that the Second Amendment protected militias, but: "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. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes..."(My emphasis)In other words, the Bill of Rights didn't protect the rights of individuals against infringement - it protects them against infringement by Congress. The STATES were free to do as they damned well pleased. You had to depend on your fellow citizens for the protection of your rights there. This was blatantly in opposition to the intent of the 14th Amendment, but because government is made of men, it still flew. And gun control in this country began to take root, fertilized with the manure of racism. State laws prohibiting blacks from possessing firearms were reinstated, and not one was struck down on Second Amendment grounds. The Supreme Court had ruled! Since that time every other "right of the People" has had a Supreme Court or Appeals Court ruling that has "incorporated" it against infringement by the States - including the 3rd Amendment protection against the housing of troops in peacetime! Only the Second Amendment right of "bearing arms for a lawful purpose", "keep(ing) and carry(ing) arms wherever" we may go has not. And so we have a bewildering patchwork of gun control laws that varies from state to state, and county to county, and county to city, all over the country. Guns are licensed here, they aren't licensed there. You have to get government permission to buy a handgun in some states, but not in others. You aren't allowed to possess a handgun in some cities, but in Vermont there are no laws against carrying concealed at all. No permit required. Not even in Montpelier, the capital. The Second Amendment was last addressed by the Supreme Court in 1939, after Congress passed the 1934 National Firearms Act - an act that many people believe did infringe on the right to arms. The NFA was passed in response to the general violence and lawlessness caused by that cranial flatulence, Prohibition. The lower federal court judge in the case certainly believed it did, as he dismissed the case against Jack Miller and Frank Layton on those grounds. In fact, what he said was: "The National Firearms Act is not a revenue measure, but an attempt to usurp police power reserved to the states, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution - "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."The case was appealed directly to the Supreme Court - do not pass through the Appeals Court, go directly to jail. The decision in U.S. v Miller is a beautiful example of the judicial system dodging a bullet, so to speak. Miller and Layton were moonshiners (manufacturers of an untaxed alcoholic beverage) who were arrested by two Treasury agents for the possession and interstate transport of a "shotgun having a barrel of less than eighteen inches" which, under the 1934 National Firearms Act, was illegal unless they had a form with a stamp attached that proved they'd payed the required tax. That law said that if you had a shotgun and wanted to take it across state lines, the barrel had to be longer than 18" or you had to pay the tax. Of course, that "tax" also required you to file an application in duplicate, be fingerprinted and photographed, undergo a background check, and get the permission of the local head of law enforcement. Oh, and the tax was a mere $200. For a $10 shotgun. The same rules held for rifles having a barrel shorter than 16", and for fully-automatic weapons. And the law established a registry of all weapons so taxed. Now I ask you: was this or was this not what the lower court judge said it was? (This law is the one that most people think of when they claim that "machine guns are banned" by the federal government, but they aren't banned. Just registered and taxed and heavily restricted. There are states that ban them, but Arizona is not one of them. I know several people who legally own fully-automatic weapons.) When the case appeared before the Supreme Court, Mr. Miller was nowhere to be found. Apparently he died in the interim, but Mr. Layton was still alive. Either way, neither Mr. Miller nor Mr. Layton was represented by anybody before the Supreme Court. No briefs were filed on their behalf, no evidence was presented to support their case. The prosecution claimed before the Court that Miller and Layton's claim that their Second Amendment rights were voilated was null because neither one of them was a member of a militia. That's the argument you've been making. The Court considered this, but it didn't decide the case on those grounds. It could have done so easily. They discussed the militia question in fervent detail, but never came to a conclusion on it. Instead, the Court decided that Miller and Layton's claim was invalid because: "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."Which raises the interesting question, "what if they had some evidence?" And the more interesting question, "What if Miller and Layton had possessed a Browning Automatic Rifle instead?" The BAR was standard military equipment for the time, and was also available to the general public since its introduction in 1917. So, once again, the Supreme Court made a bad decision - in the name of "public safety." But what's worse is that the lower courts have since interpreted U.S. v Miller to say that there is no individual right to arms outside militia service, and that's a conclusion that cannot be drawn from an honest reading of the case. Since 1939 we've been fighting an uphill battle, and there have been no other cases brought before the Supreme Court. They've dodged every one. With the door now opened, gun control forces such as the ones that have stripped England of the right to arms expanded the laws to affect not just "those people," but everybody. The good-old-boys who used gun control laws to keep the blacks unarmed now saw those same laws used against themselves. Horrors! And the courts offered no respite. The courts were responsible for this. But in the last two decades our side has been fighting back, and with growing success. First, we got the legal scholars to actually look at the law. Then they started writing. And getting ostracized by their liberal coworkers, but that didn't stop them. I could quote a number of them, but I'll quote just one - Laurence Tribe. Yale Law School professor, author of the ConLaw text American Constitutional Law and one of Al Gore's lawyers in the last Presidential Election. In the first edition of his textbook, he didn't even mention the Second Amendment, but in the most recent one he has: "Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist / republican / federalism one: Its central object is to arm 'We the People' so that ordinary citizens can paricipate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes -- not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons -- a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by §1 of the Fourteenth Amendment against state or local government action."He was villified by other liberals for writing that. Then there was the recent Fifth Circuit Court of Appeals decision in US v Emerson which did (for the first time since 1939) an "original intent" review of the Second Amendment, (including a thorough review of US v Miller) and which concluded that the right to arms was an individual right. HOWEVER (and I'm finally getting back to the "nukes in the garage / RPGs in the basement" argument): "Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country."Halleluja! The right is individual, but not unlimited! The difference is, whatever restrictions (at this time) the FEDERAL government wants to place on the right must be "narrowly tailored specific exceptions or restrictions" and (elsewhere in the decision) due process must be followed in order to deny an individual his rights. In the case of Timothy Emerson, he received due process and the restriction met the "narrowly tailored" requirement test of that court - "albeit likely minimally so". Now, you would think, we would be able to discuss just what laws were and were not "narrowly tailored" and specific enough to meet the test, but not so! The NINTH Circuit Court of Appeals handed down a decision even more recently that bitch-slapped the Fifth Circuit's decision, although several of the justices disagreed with the majority most eloquently. The Fifth Circuit is based in New Orleans. The Ninth Circuit is based in California. In San Francisco, to be exact. It's the most liberal of all the courts, and the most overturned by the Supreme Court. But there are some justices out of the 25 who still can think, and I'm going to end this post with the words of one of them. The case is Silviera v Lockyer, and it has to do with California's version of the "assault weapons ban." The Ninth Circuit rejected the claim on the basis that there is no individual right to arms, holding as precedent an earlier case where the Ninth Circuit concluded that this was what US v Miller meant. The case was then appealed to the Ninth Circuit en banc, so that instead of only a three-judge panel, all 25 would hear it. That appeal was rejected on the same grounds. There were FOUR (4) dissenting opinions. This one was, by far, the best: Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet...and that “persons, houses, papers, and effects” also means public telephone booths....When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.So, in answer to your question "...let's say a liberal government came to power and wanted to ban gun ownership. It would not be able to, because of the Second Amendment, right?", let's just say the jury is still out on that one. (Update: Both U.S. v. Emerson and Silveira v. Lockyer were appealed to the Supreme Court. Emerson's appeal was denied in 2002. Silveira's appeal was denied in 2003. The Supreme Court continues to avoid addressing the question of just what the Second Amendment really protects.) | | |
