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  
| Sunday, March 02, 2008 Of Laws and Sausages. - A Primer on Second Amendment Jurisprudence (Warning: This essay is of truly epic length -13,000 words. Short attention spans need not apply.) Back in May of 2003 when I started this blog, I had just begun a months-long debate with an Irishman living in London. The topic of that debate, unsurprisingly, was the Second Amendment. During that debate he asked me a question: "(L)et'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, alright. When the Supreme Court takes up District of Columbia v. Heller (née Parker v. D.C.) in a few days, we may finally get an answer to it. But how did we get to this point? "Our Revolution commenced on more favorable ground. It presented us an album on which we were free to write what we pleased. We had no occasion to search into musty records, to hunt up royal parchments, or to investigate the laws and institutions of a semi-barbarous ancestry. We appealed to those of nature, and found them engraved on our hearts. Yet we did not avail ourselves of all the advantages of our position. We had never been permitted to exercise self-government. When forced to assume it, we were novices in its science. Its principles and forms had entered little into our former education. We established however some, although not all its important principles. The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press." -- Thomas Jefferson pp.46 - 47, The Living Thoughts of Thomas Jefferson, John Dewey, presenter.-- 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. --Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322 Paul K. Sadover-- It is important, likewise, that the habits of thinking in a free country should inspire caution in those intrusted with its administration to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism.... If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield. - George Washington, Farewell Address, 1796-- Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government. - James Madison-- The whole of the Bill (of Rights) is a declaration of the right of the people at large or considered as individuals.... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of. --Albert Gallatin of the New York Historical Society, October 7, 1789.-- The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now. — South Carolina v. US, 199 U.S. 437, 448 (1905)-- A provision of the Constitution, it is hardly necessary to say, does not admit of two distinctly opposite interpretations. It does not mean one thing at one time and an entirely different thing at another time. - Justice Sutherland (dissenting), Blaisdell (1934)-- I quite agree with the opinion of the court that whether the legislation under review is wise or unwise is a matter with which we have nothing to do. Whether it is likely to work well or work ill presents a question entirely irrelevant to the issue. The only legitimate inquiry we can make is whether it is constitutional. If it is not, its virtues, if it have any, cannot save it; if it is, its faults cannot be invoked to accomplish its destruction. If the provisions of the Constitution be not upheld when they pinch, as well as when they comfort, they may as well be abandoned. - (Ibid.)-- The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. - West Virginia v Barnette (1943)-- 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.-- I respectfully dissent from our order denying rehearing en banc. In so doing, I am expressing agreement with my colleague Judge Gould’s special concurrence in Nordyke v. King, and with the Fifth Circuit's opinion in United States v. Emerson, both taking the position that the Second Amendment secures an individual, and not collective, right to keep and bear arms.-- It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution.-- Something has gone seriously awry with this Court’s interpretation of the Constitution. - Clarence Thomas (dissenting) Kelo v New London (2005)-- Obliterating a provision of the Constitution, of course, guarantees that it will not be misapplied. - (Ibid.)-- The 2-1 decision of the U.S. Court of Appeals for the D.C. Circuit in Parker v. District of Columbia striking down the District of Columbia's handgun law is judicial activism at its worst. By disregarding nearly seventy years of U.S. Supreme Court precedent, two Federal judges have negated the democratically-expressed will of the people of the District of Columbia and deprived this community of a gun law it enacted thirty years ago and still strongly supports. - Paul Helmke, President of The Brady Center to Prevent Gun Violence.The Parker v District of Columbia decision handed down on March 9, 2007 by the D.C. District Court of Appeals was a monumentally significant piece of jurisprudence, but it was most emphatically not "judicial activism" in any way, shape, or form. It was the proper application of Constitutional law, which is the duty and purpose of the federal courts. It is, unfortunately, not something the courts have a stellar record on. As Judge Kozinski noted in the quote above, "when (judges are) none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there." As I've mentioned previously, since I started studying the history of the right to arms I've read enough legal decisions to make ones eyes bleed. One of the finest books I can recommend to anyone interested in this topic is Clayton Cramer's For Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms (1994). This is a dry, college-level textbook of case law, but it quite thoroughly details the judicial history of the right to arms, and illustrates in no uncertain terms where judges have constitutionalized their personal preferences. From the preface: In 1979 a solicitation from the National Rifle Association arrived in my mailbox. Like many urban Baby Boomers, I had no exposure to hunting, gun ownership, or the rest of what is sometimes disparaged as "redneck culture." Like many of our peers, influenced by my schooling and the popular press, my perceptions of gun owners and hunters were strongly negative; my answers to the NRA survey could only be considered cheeky and insulting. "Did I hunt? How often? What sort of game?" I responded, "Yes, daily, only people," and stuffed the survey into the business reply envelope. That'll show them!I didn't start out with Clayton's bias against guns. I was raised in the "redneck culture." Though I have never been a hunter, gun ownership has always been a part of my Southern, Jacksonian, Scots-Irish heritage. It was not until I was exposed personally to the urban mindset, influenced by public schooling and the constant drumbeat of the popular media, that I came to realize that so many people are as Clayton Cramer had started off. His epiphany came from discovering that he was a member of the militia. Mine came when I met the woman who would become my wife - and who had been steeped in the anti-gun media culture for most of her life. That was in July, 1993. By 1995 I was well on the way to becoming a real gun-nut, thoroughly angered by the blatantly unconstitutional actions of the legislatures and courts, aided and abetted by the useful idiots who supported futile, counterproductive policies in open opposition to our enumerated individual rights on the feel-good basis that they were doing so for "public safety" reasons. I think perhaps the most blatant example of this comes from ACLU President Nadine Strossen in an interview she gave to Reason magazine. Ms. Strossen had the intestinal fortitude to opine: On the gun issue, I instituted a reexamination a few years ago in response to a number of things, but the most important one was an article by Sanford Levinson at University of Texas Law School that summarized a wave of new historical scholarship. Levinson's argument was that in the 18th century context, a well-regulated militia meant nothing other than people in the privacy of their homes.(My emphasis.) Mentioned in the Constitution. Yes, the Second Amendment of the BILL OF RIGHTS merely mentions "the right of the people to keep and bear arms." That can't possibly mean "that it is their right and duty to be at all times armed." As law professor Mike O'Shea put it: "So the Constitution says Roe, but it doesn't say I have the right to keep a gun to defend my home, huh?"I guess you have to be a high-level intellectual to convince yourself that an enumerated right somehow isn't a fundamental civil liberty. I believe I have few illusions on this topic. I'm quite aware that this is a battle of philosophies, but I am secure in the conviction that the Founders - whatever their individual faults - very carefully established a form of government best suited to the advancement of all humanity, that each and every part of the Bill of Rights was included to put off-limits the rights that no majority should ever have the power to usurp, and that by maintaining these rights inviolate our government could never become despotic. The United States has become the single super-power in the world, what Professor Amy Chua labels a "hyperpower," due in no small measure to our insistence on and respect for government by rule of law, but that respect has been diminished by a history of our legislatures violating the prohibitions of the Constitution, often at the urging of and almost always with the complicity of the executive, and the courts backing those violations for perceived, promised, or imagined transient benefits. "Judicial activism"? If judicial activism is defined as "negat(ing) the democratically-expressed will of the people" when said will is in opposition to the meaning of Constitution, then we haven't had nearly enough of it, for that is the duty of the courts. There is an amendment process spelled out in Article V of that document for situations in which changes are deemed necessary. In 2005 George Will wrote: When (Senator Harry) Reid endorsed Scalia for chief justice, he said: "I disagree with many of the results that he arrives at, but his reason for arriving at those results are (sic) very hard to dispute." There you have, starkly and ingenuously confessed, the judicial philosophy -- if it can be dignified as such -- of Reid and like-minded Democrats: Regardless of constitutional reasoning that can be annoyingly hard to refute, we care only about results. How many thoughtful Democrats will wish to take their stand where Reid has planted that flag?Indeed. I would argue that in large part it no longer does. I would also note that each member of Congress swears an oath upon taking office: I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.It would appear that Senator Reid (and the overwhelming majority of his colleagues in Congress) need an extensive remedial course in the meaning of that document. But this is not to say that it cannot be restored, however difficult and unlikely that may be. The decision in Parker v D.C. is a bold step in that direction. To illustrate the corruption of the Rule of Law, it is necessary to review the history of the right to arms in the courts. Bear in mind, the right to arms is hardly the only enumerated right to be eviscerated by statute and precedent, but it is the one most easily illustrated, as the vivisection has been long, blatant, and unapologetic. Cramer's book does this in exhaustive depth. Since this is a blog post, albeit of exceptional length for the style, I'll keep the list as short as I feel necessary to emphatically make the point. I will, of course, be repeating much of what I've written in other posts on this blog over the last four-plus years. There have been two main components in the legal assault on the right to arms. The first has to do with the carrying of concealed weapons, the second having to do with the disarming of non-whites. In both cases, the actions of our courts have very often been, when viewed from modern times, egregious. Together, after 1939, the resulting legal precedents were combined into efforts to disarm the general public. The earliest legal commentary on the intent of the Second Amendment comes from St. George Tucker's Blackstone's Commentaries, first published in 1803. St. George Tucker was a lawyer, a professor at the William and Mary college of law, and a district court judge. His text was the primary source used in early Constitutional Law classes in 19th century America. Tucker wrote: 8. A well regulated militia being necessary to the security of a free state, the right of the people to keep,(sic) and bear arms, shall not be infringed. Amendments to C. U. S. Art. 4.He also wrote: Fifthly, and lastly; by the separation of the judiciary from the legislative department; and the independence of the former, of the control, or influence of the latter, in any case where any individual may be aggrieved or oppressed, under colour of an unconstitutional act of the legislature, or executive. In England, on the contrary, the greatest political object may be attained, by laws, apparently of little importance, or amounting only to a slight domestic regulation: the game-laws, as was before observed, have been converted into the means of disarming the body of the people: the statute de donis conditionalibus has been the rock, on which the existence and influence of a most powerful aristocracy, has been founded, and erected: the acts directing the mode of petitioning parliament, &c. and those for prohibiting riots: and for suppressing assemblies of free-masons, &c. are so many ways for preventing public meetings of the people to deliberate upon their public, or national concerns. The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit any prohibition of arms to the people; or of peaceable assemblies by them, for any purposes whatsoever, and in any number, whenever they may see occasion.(My emphasis). So, as of 1803 the legal understanding of the Second Amendment was that it was a prohibition on Congress to prevent the disarmament of "the people" - that is, the free, white citizens of the United States. (Slavery got addressed with the Civil War.) In 1833 Supreme Court Justice Joseph Story published his Commentaries on the Constitution of the United States. On the topic of the Second Amendment, he echoed St. George Tucker: § 1889. The next amendment is: "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."But Story was prescient, concluding: And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.(My emphasis.) Regardless, both Tucker and Story, contemporaries of the Founders, understood that the right protected by the Second Amendment was an individual one, not some ill-defined "collective right" on the part of the states. And further, even should Story's prescient vision come true and the militia system fall into disrepair, the right protected by the Second Amendment would still exist. It was precisely this indifference, disgust, and contempt that has led to Britain's The first legal challenge to the right to arms to reach a state supreme court occurred in 1822 in Kentucky's Bliss v Commonwealth. Kentucky had outlawed the concealed carry of weapons "unless when traveling on a journey." Defendant Bliss had been convicted of carrying a sword-cane, and had filed an appeal on the grounds that the Kentucky constitution stated "the right of the citizen to bear arms in defense of themselves and the state shall not be questioned." The Kentucky Supreme Court said: That the provisions of the act in question do not import an entire destruction of the right of the citizens to bear arms in defence of themselves and the state, will not be controverted by the court; for though the citizens are forbid wearing weapons concealed in the manner described in the act, they may, nevertheless, bear arms in any other admissible form. But to be in conflict with the constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form; it is the right to bear arms in defence of the citizens and the state, that is secured by the constitution, and whatever restraint the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the constitution.In 1822 that Kentucky Supreme Court understood that words have meaning, and words in a Constitution have specific meanings. Bliss won. The state of Kentucky, taking Washington's advice to heart, amended its Constitution in 1891 to: "...(T)he right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons." Kentucky passed a "shall-issue" concealed-carry law in 1996. But in 1833 Indiana's Supreme Court felt differently. Their Constitution still reads today "The people shall have a right to bear arms, for the defense of themselves and the State," wording not too far different from Kentucky's. But in 1831 the state legislature passed a similar statute: "That every person, not being a traveller, who shall wear or carry any dirk, pistol, sword in a sword-cane, or other dangerous weapon concealed shall upon conviction thereof, be fined in any sum not exceeding one hundred dollars." Clayton Cramer notes in his book: From the frequency with which this decision is cited one might assume that it is a powerful opinion, containing a clear and unambiguous elucidation of why concealed carry laws are constitutional.You know, like Bliss was. However: In fact, the entire decision of the Indiana Supreme Court in this case is a single sentence: "It was held in this case, that the statute of 1831, prohibiting all persons, except travellers, from wearing or carrying concealed weapons, is not unconstitutional."At least Kentucky had the decency to amend its Constitution after its Supreme Court practiced "judicial activism at its worst." Indiana passed "shall issue" concealed carry in 1980. The earliest federal case I am aware of that even mentions the right to arms is also one of the most reviled. I have cited it on numerous occasion on this blog, and have been rebuked for it more than once. It is Dred Scott v Sanford (1857). In this case the U.S. Supreme Court found that blacks, free or slave, could not be citizens. The reasoning of the seven-justice majority: For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.(My emphasis.) Note that the right to "keep and carry arms wherever they went" is a right not predicated on membership in a militia, but merely on ones citizenship. This is in agreement with St. George Tucker, Joseph Story, Thomas Jefferson, and the Kentucky Supreme Court. The Federal Court of Appeals Parker decision also comments on this case, but its excerpt is different: For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.It continues: Although Dred Scott is as infamous as it was erroneous in holding that African-Americans are not citizens, this passage expresses the view, albeit in passing, that the Second Amendment contains a personal right. It is included among other individual rights, such as the right to trial by jury and the privilege against self-incrimination. The other Second Amendment cases of the mid-nineteenth century did not touch upon the individual versus collective nature of the Amendment's guarantee.As I have noted elsewhere, Chief Justice Taney and six other Justices were wrong to deny citizenship to blacks, but they knew exactly what rights they were denying them - as individuals - by doing so. So, as late as 1857 the Supreme Court of the U.S. understood that the right to arms was individual, and not directly associated with militia service. In fact, the Court held that Congress had no power to "deny the people the right to keep and bear arms," or inhibit their ability to "keep and carry arms wherever they went." Once over the lip of the slippery slope, things go rapidly downhill from there. Prior to the Civil War it was legally recognized that the Bill of Rights served as a check upon the Federal government only. The Second Amendment to the Constitution of the United States was not even brought up in Bliss v. Commonwealth, only the State constitutional protection mattered there. However, following the Civil War many Southern states enacted "Black Codes" - laws which were designed to keep blacks if not in slavery then in a state not far removed. And the courts went along happily, upholding law after law, creating precedent after precedent, always with the eye on the immediate result and never considering the damage being done to the Rule of Law. Chief Justice Taney recognized what the rights of citizens were, and the Civil War was very much about just who was and who wasn't a citizen. Following the war the Thirteenth Amendment was passed defining who was a citizen, and the Fourteenth Amendment was passed with the intent to ensure the rights of those new citizens were protected against infringement by the states. The Fourteenth Amendment even uses the "privileges and immunities" language of the Dred Scott decision in its "equal protection" clause: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.(My emphasis.) The Fourteenth Amendment was ratified in 1868. With regard to the Second Amendment, the damage began with U.S. v Cruikshank (1875), a case in which a mob had killed over 100 blacks in an 1873 massacre in Colfax, Louisiana. After the slaughter only nine men were arrested, and they were charged with the murder of only one man. The Cruikshank case was an appeal over a conviction for violation of Louisiana's Enforcement Acts of 1870, laws designed to protect the rights of the newly freed. The complaint also uses the language of the Dred Scott decision and the 14th Amendment: The second (count) avers an intent to hinder and prevent the exercise by the same persons of the 'right to keep and bear arms for a lawful purpose.' (Second Amendment)The appellant lost. On the part of the Second Amendment the Court said: 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.(My emphasis.) Note that this language matches that of the Kentucky Supreme Court in Bliss v Commonwealth. But here's the difference: 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.) Thus a precedent was established, yet to be overturned, allowing the myriad patchwork of conflicting gun laws we have across the nation that today can turn a law-abiding citizen into a felon for crossing a city, county, or state line with a firearm in their vehicle, for possessing a .22 caliber tube-fed rifle in New Jersey, for missing a flight at JFK when traveling with a firearm, or at least get them arrested and incarcerated without legal cause. The federal government can't (legally) infringe on the right to arms, but state and local governments can! The expressed intent of the 14th Amendment to bring "equal protection" of the "privileges and immunities" of citizenship to all was kicked to the curb, discarded "like a crumpled gum wrapper," in its first test. Cruikshank was the primary reason that Washington, D.C. was the ideal place to bring suit against a gun ban. Not being a "state," its laws are Federal in nature, and the Second Amendment directly applies. Cruikshank was used as precedent in a follow-on case, Presser v Illinois (1886) wherein it was decided - with reference to Cruikshank - that private militias could be prohibited by state law - however: (I)n view of the fact that all citizens capable of bearing arms constitute the reserved military force of the national government as well as in view of its general powers, the States cannot prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security.For some reason this portion of the decision never gets mentioned by gun 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 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.(My emphasis.) Presser supports the idea that some gun control is valid, but outright disarmament is verboten. Not that that ever stopped anybody.... Following Cruikshank and Presser, it was A-OK to pass laws with the intent to disarm people "not like us" through either state or local efforts, laws "never intended to be applied to the white population," that later were expanded to include other minorities, and then, as in the case of D.C. (and Chicago), everyone not on the government payroll. But the bad precedents don't stop at Presser, not by a long-shot. By the turn of the 20th Century, the executive and legislative branches of government had become more "progressive." Marx had published his Communist Manifesto in 1848, and his flawed but seductive philosophy had made major inroads in Europe and America. One of those inroads here (IMHO) was the "Progressive movement." Although I don't think "Progressives" of the period had embraced Marxism in whole, their movement had gained much popular support and resulted in significant alteration to the Federal government - much of it bad. The Progressives were responsible for establishment of the income tax (Amendment XVI, and one of the planks of the Manifesto), the popular election of senators (Amendment XVII), and Prohibition (Amendment XVIII). Pushing Constitutional Amendments through to ratification is an intentionally difficult process. The fact that two of these amendments passed in a single year, (1913) and the third six years later (followed by womens suffrage in 1920) indicates a significant popular political movement. There has never again been so short a period in which so many amendments have been passed. That movement was responsible, I believe, for the election of Franklin Roosevelt in 1933. One of the planks Roosevelt ran on was the ending of Prohibition, and he was successful in that, but it left a lot of Treasury agents without much to do, and there had been a huge (but finally declining) amount of violence involved in the illegal traffic in alcohol, most vividly with fully-automatic weapons as romanticized by Hollywood during and after the period. In 1934 the Roosevelt administration pushed through the National Firearms Act as a part of its "war on crime." (Sound familiar?) The 1934 NFA was passed as a "revenue measure" since the federal legislature understood that it did not have the power (per Cruikshank) to infringe on the right to arms. It did, however, have the power to tax - thus the weapons of movie criminals (machine guns, sawed-off shotguns, "silencers") could be "regulated" through taxation. And in order to make sure the taxes got paid, registration. Handguns - then as now the most popular "crime guns" going - were excluded, as Clayton Cramer explains: Because of concerns expressed by some Congressmen that including handguns under this regulatory scheme would become burdensome to law-abiding people, and "cause an awful revolt all over the United States amongst private citizens," handguns were removed from the law.It was another example of "divide and conquer." Few people owned full-auto weapons or suppressors. Sawed-off shotguns were dirt cheap. Nobody cared much about them. Everybody "knew" these were the weapons of criminals, but handguns? Lots of good people owned handguns. They wouldn't stand for being lumped in with the criminals. Today we have this same condition with "assault weapons" and rifles chambered for the .50BMG cartridge. When the "assault weapons ban" of 1994 was passed, not that many people owned them, but the law (thankfully) was badly written, and firearms with all of the appearance and functionality could still be manufactured and sold. Judging by the Great Zumbo Incident of 2007, I'd say that there are a lot of "terrorist rifle" owners out there today. But not so many people own a .50BMG "sniper rifle," or a .338 Lapua "intermediate sniper rifle" so they're still fair game for the banners. After all, public indifference, disgust, and contempt (not to mention abject fear) have been the goals of the opponents of the right to arms from the beginning. The .50 BMG rifle's exclusivity makes it a juicy target, so to speak. The smaller calibers hide behind in the fine print of the proposed legislation. The '34 NFA established a registry and tax system. It put a $200 tax ($3,150 in 2008 dollars according to this inflation calculator) on any machine gun, short barreled rifle, short-barreled shotgun, or suppressor each time it was "transferred" - sold to another party. That was about the purchase price of a 1928 model Thompson submachinegun. It was about twenty times the price of a twelve-gauge double-barreled shotgun with the barrels hacked off. In 1938 a pair of moonshiners were arrested. No moonshine was found, but there was an unregistered, untaxed sawed-off shotgun in their truck. The men were charged with violation of the '34 NFA. Their defense in District court was that the National Firearms Act "was an attempt to usurp the police powers of the states" and a violation of the Second Amendment of the Constitution. This was not the first time such a defense had been made. In U.S. v Adams (1935) the same argument had been made in a Florida district court. The judge in Adams found that the 1934 NFA was structurally equivalent to the 1914 Harrison Narcotics Tax Act. Wherein specific drugs were taxed and regulated and dispensed only through doctors, specific firearms were taxed and regulated and sold only through licensed gun dealers. The Constitutionality of the Harrison Act had been validated in U.S. v Doremus (1919), a case of heroin distribution. But here are the differences between Adams and Doremus: First, the right to arms is one of the rights enumerated in the Bill of Rights. No such enumerated protection exists for the right to possess, distribute, or consume a mind-altering substance. Second, the tax in Doremus is described: Section 1 of the act (section 6287g) requires persons who produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium or cocoa leaves or any compound, manufacture, salt, derivative or preparation thereof, to register with the collector of internal revenue of the district his name or style, place of business, and place or places where such business is to be carried on. At the time of such registry every person who produces, imports, manufactures, compounds, deals in, dispenses, sells, distributes, or gives away any of the said drugs is required to pay to the collector a special tax of $1 per annum.One dollar. Even in 1919 dollars that's only $12 today. And that's an annual tax, not a "per pill" price. The District Court found the Harrison Act to be unconstitutional. The Supreme Court overturned. The Florida district court found the NFA to be constitutionally acceptable. The Arkansas district court judge did not. Now, normally the procedure is for the District Attorney to appeal to the Circuit Court of Appeals for his state when he loses, unless he believes the case to be a lost cause. Then, no matter who loses, an appeal usually is made for an en banc rehearing by the entire panel of Appeals court judges in that circuit. Then, if no one is willing to give up, the case is appealed to the Supreme Court. SCOTUS doesn't hear a lot of cases. They quite often "deny cert" - certiorari, or decline to hear. This does not necessarily mean the Court agrees with the decision, it means they aren't going to hear for one or more of any number of reasons - statute of limitations, standing of the appellant or appellee, etc. For whatever reason the case does not get four out of nine votes from the Justices, but it's fairly rare for a case to proceed from the District court to the Supreme Court without passing through the Appellate court first. Honestly, I don't know of a single other incident where this has occurred. If one of my readers does, I'd be interested to hear about it. Miller did. And in record time. The Miller indictment was quashed by the District court on January 3, 1939. It was appealed - directly to the Supreme Court - on January 30. Miller's lawyer received notification that day that the case had been appealed, but Miller couldn't be found, the lawyer wasn't going to get paid, and he did not file either an objection or a brief on behalf of his defendants. Cert was granted on March 13. Oral argument was made on March 30 - with no defense presented whatsoever. The U.S. Attorney's brief for the case went some 21 pages and ran the gamut. One of the arguments made by the prosecutor was that neither Miller nor Layton were members of a militia, "well regulated" or otherwise, thus they had no right under the Second Amendment to possess a firearm. The court spent considerable time discussing militias, but they did not reach any conclusion on that question. They could have, easily, but they did not. Instead, the court ruled very narrowly on the firearm in question - Miller's sawed-off shotgun. The key excerpt: In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."In the absence of any evidence..." No defense was presented. No evidence that short-barreled shotguns have been used in a military capacity since the inception of the firearm was presented to the Court - so they could (quite honestly!) claim judicial ignorance. On the basis of this ignorance the Supreme Court of the United States overturned the District Court's decision and remanded the case back to that court for "finding." Miller was dead, or at least no one could find him. Layton pled guilty. And the slide down the slippery slope accelerated. In 1942 the first Appeals Court decision on the Second Amendment post-Miller reached the First Circuit: Cases v. U.S. In this case a resident of Puerto Rico, Jose Cases Velazquez, was charged and convicted of violation of the Federal Firearms Act for receiving a firearm and ammunition "in interstate commerce." (The "commerce clause" raises its ugly head again.) One of Mr. Velazquez's defenses was that the law under which he was convicted violated his Second Amendment rights. Here's the pertinent excerpt from the First Circuit's decision: The right to keep and bear arms is not a right conferred upon the people by the federal constitution. Whatever rights in this respect the people may have depend upon local legislation; the only function of the Second Amendment being to prevent the federal government and the federal government only from infringing that right. United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588; Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 29 L.Ed. 615.As irritating as it is, this is actually "good" - i.e. correct - law. Lower courts cannot overturn Supreme Court precedent, and as pointed out above, those two cases do say that. But the Supreme Court in a dictum in Robertson v. Baldwin, 165 U.S. 275, 282, 17 S. Ct. 326, 41 L.Ed. 715, indicated that the limitation imposed upon the federal government by the Second Amendment was not absolute and this dictum received the sanction of the court in the recent case of United States v. Miller, 307 U.S. 174, 182, 59 S.Ct. 816, 83 L.Ed. 1206.(My emphasis.) So far, so good. But this is where the ski slope steepens: However, we do not feet that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go. At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus.Conveniently ignoring the fact that private individuals did indeed own artillery at the time of the Founding. Conveniently ignoring Founder Tench Cox's quote "Their swords, and every other terrible instrument 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 the state governments, but, where I trust in God it will ever remain, in the hands of the people." The lower court might have decided to make some ruling on what could or couldn't be a "terrible instrument of the soldier," but they declined. Instead, they punted: Considering the many variable factors bearing upon the question it seems to us impossible to formulate any general test by which to determine the limits imposed by the Second Amendment but that each case under it, like cases under the due process clause, must be decided on its own facts and the line between what is and what is not a valid federal restriction pricked out by decided cases falling on one side or the other of the line.They decided in this case that Mr. Velazquez failed the smell test. But this case was the precedent that essentially rendered the Second Amendment meaningless. Cases was followed by the Third Circuit's U.S. v Tot, also in 1942. More recently, the Sixth Circuit decided U.S. v. Warin, a 1976 submachinegun case essentially identical to the one that put Hollis Wayne Fincher in prison. And in 1996 the Ninth Circuit Court of Appeals gave us its Hickman v. Block decision. At least the First Circuit acknowledged that "each case... must be decided on its own facts and the line between what is and what is not a valid federal restriction...." Not so, said the Ninth Circuit. Douglas Ray Hickman sued the City of Los Angeles, the chief of police, and numerous other entities because he was denied a concealed weapons permit. He began seeking a permit in 1988, and finally filed suit in 1991. It took five years to reach the Ninth Circuit. He claimed that denial of the permit violated his right to arms under the Second Amendment. He lost. The Ninth Circuit Court of Appeals rejected his suit. Here is their deeply researched, exhaustively annotated, well-argued decision in all its jurisprudential glory: This case turns on the first constitutional standing element: whether Hickman has shown injury to an interest protected by the Second Amendment. We note at the outset that no individual has ever succeeded in demonstrating such injury in federal court. The seminal authority in this area continues to be United States v. Miller, 307 U.S. 174 (1939), in which the Supreme Court upheld a conviction under the National Firearms Act, 26 U.S.C. S 1132 (1934), for transporting a sawed-off shotgun in interstate commerce. The Court rejected the appellant's hypothesis that the Second Amendment protected his possession of that weapon.First error. The Court did no such thing. Consulting the text and history of the amendment, the Court found that the right to keep and bear arms is meant solely to protect the right of the states to keep and maintain armed militia. In a famous passage, the Court held that [i]n the absence of any evidence tending to show that the 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. 307 U.S. at 178.The Ninth Circuit judges hereby illustrate that their reading comprehension is faulty, since that passage contradicts their position, or it illustrates that they have deliberately misinterpreted the decision. Strike one. The Court's understanding follows a plain reading of the Amendment's text. The Amendment's second clause declares that the goal is to preserve the security of "a free state;" its first clause establishes the premise that well-regulated militia are necessary to this end. Thus it is only in furtherance of state security that "the right of the people to keep and bear arms" is finally proclaimed.Yet a fair reading of Miller does NOT lead to that conclusion. That position was argued before the Court by the U.S. Attorney, yet the Court based its decision not on whether Miller was a member of a militia, but on whether his weapon was suitable for use in one. Following Miller, "[i]t is clear that the Second Amendment guarantees a collective rather than an individual right." United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied 96 S.Ct. 3168 (1976); see also Thomas v. Members of City Council of Portland, 730 F.2d 41, 42 (1st Cir. 1984) (same, citing Warin); United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974) (cited with approval in Lewis, 445 U.S. at 65 n.8) (same). Because the Second Amendment guarantees the right of the states to maintain armed militia, the states alone stand in the position to show legal injury when this right is infringed.Not according to Dred Scott v. Sanford. Not according to U.S. v Cruikshank. Not according to Presser v Illinois. The Second Amendment protects a pre-existing right of "bearing arms for a lawful purpose," to "keep and carry arms" wherever a citizen may go. Strike Two. It does not oblige the states to keep an armed militia, or to arm their citizens generally, although some states do preserve, nominally at least, a broad individual right to bear arms as a foundation for their state militia. See, e.g., People v. Blue, 54 P.2d 385 (Colo. 1975) (en banc) (citing Colo. Const. art. II, section 13) (recognizing individual right to bear arms under state constitution); State v. Amos, 343 So.2d 166, 168 (La. 1977) (citing La. Const. art I, section 11) (same proposition); State v. Krantz, 164 P.2d 453 (Wash. 1945) (citing Wash. Const. art I, section 24) (same proposition); Akron v. Williams, 177 N.E.2d 802 (Ohio Ct. App. 1966) (citing Ohio Const. art. I, section 4) (same proposition). Even in states which profess to maintain a citizen militia, an individual may not rely on this fact to manipulate the Constitution's legal injury requirement by arguing that a particular weapon of his admits some military use, or that he himself is a member of the armed citizenry from which the state draws its militia. United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978) (technical membership in state militia insufficient to show legal injury under Second Amendment); Warin, 530 F.2d at 106 (same with respect to individual "subject to enrollment" in state militia); United States v. Hale, 978 F.2d 1016, 1019 (8th Cir. 1982) (same, citing Warin); United States v. Graves, 554 F.2d 65, 66 n.2 (3rd. Cir. 1977) (en banc) (narrowly construing the Second Amendment "to guarantee the right to bear arms as a member of a militia").So from the founding of a nation in which, according to Thomas Jefferson, it is a citizen's "right and duty to be at all times armed," a nation in which St. George Tucker understood that the constitution could not be used to "permit any prohibition of arms to the people," a nation where in 1857 the Supreme Court declared that the Second Amendment protected a right of citizens "to keep and carry arms wherever they went," where in 1939 the Supreme Court ruled - not on a defendant's membership in a militia, but on the suitability of his weapon for militia use, we reached the point where the right of individuals somehow became a right of the States - the famous shift from an "individual rights" understanding to a "collective rights" interpretation. Moreover, "no individual even has standing to challenge any law restricting firearm possession or use." At least not in the Ninth Circuit (where I happen to live.) The extinction of the right to arms was almost complete. The meaning of the Second Amendment of the Constitution was altered without the use of the Amendment process - merely by the repeated death-by-a-thousand-cuts judicial re-interpretation, and the power of stare decisis. But the job was not quite complete. Beginning about the mid-1970's there was some pushback. Georgia passed a "may issue" concealed-carry law in 1976. As noted above, Indiana passed "shall-issue" concealed carry in 1980. Indiana was followed by Maine and North Dakota in 1985 and South Dakota in 1986. In 1987 the opposition woke up. Florida passed its "shall issue" concealed carry law. In the mean time, legal scholars were studying the Second Amendment and the current jurisprudence. In 1989 University of Texas, Austin law professor Sanford Levinson published his seminal paper The Embarrassing Second Amendment in the Yale Law Review, which ignited a firestorm of controversy, and inspired a great deal of research. In 2000, Harvard Law professor Laurence Tribe - a vocal advocate for gun control - revised his textbook American Constitutional Law with regard to the Second Amendment with this passage: 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 participate 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.From the time of Florida's passage of "shall issue" concealed carry, the total number of states with such laws has increased from nine (with one state, Vermont, not requiring a permit at all) to 37, with two states (Alaska and Vermont) not requiring permits. The number of "no issue" states dropped from fifteen to two. And we got some pushback in the courts. In 2001 the Fifth Circuit Court of Appeals proclaimed in its U.S. v. Emerson decision that the right protected by the Second Amendment was an individual, not a "states" right - in direct opposition to the Ninth Circuit's declaration in Hickman. Now we had a "circuit split" in which two Appeals courts had ruled on opposite sides of a Constitutional question. Normally this is the point at which the Supreme Court will step in to "fix" the split, but the Court denied cert. on Emerson. The Ninth Circuit, however, responded with not one, but two decisions upholding its Hickman precedent: Nordyke v. King and Silveira v. Lockyer. Neither of those cases were granted cert. either. Which put the question of whether the Second Amendment protects an individual right in a quandary, and again put the meaning of the Miller decision in a bright spotlight. Chief Justice John Roberts from his confirmation testimony before Congress when asked about U.S. v Miller: The 5th Circuit -- I think it was in the Emerson case, if I'm remembering it correctly -- agreed with what I understand to be your view, that this protects an individual right. But they went on to say that the right was not infringed in that case. They upheld the regulations there.Not so much. For an off-the-cuff answer, "the Miller case side-stepped the issue" is exactly right, but the Chief Justice erred or mis-stated a few things. In U.S. v Emerson the 5th Circuit three-judge panel did an "original understanding" analysis of the Second Amendment with particular attention paid to U.S. v Miller. At question in that case was whether a law recently passed by Congress violated the Second Amendment by prohibiting anyone under a restraining order from possessing or purchasing a firearm. The District Court judge said, after doing his own "original understanding" analysis said "yes, it does." However, the appeals court stated in their well-researched decision that, while the right was indeed an individual one, it was not exempt from "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." It also concluded that the requirement of due process had been met in the case "albeit likely minimally so." All three judges fou | |
