From the December 2006 Idaho Observer:
The Second Amendment: "No longer necessary?"
by Hari Heath
As our country reaches a moment of what is arguably its greatest crisis; as the enemy of everything Americans have come to hold dear is not a foreign power, but an enemy within which has already exceeded every horrific possibility that our founders warned us of and many others that were inconceivable at the time; when the president states that the Constitution is just a "god damned piece of paper," the one final check against the abuse of power is now regarded in the seat of government to be "no longer necessary."
Individual v. collective
There is a court case in the District of Columbia where several residents have sued the District and its mayor to end its effective prohibition on long-gun and handgun ownership and carrying arms for defensive purposes. The District’s attorneys, who are arguing against the suit, promote the notion that the Second Amendment is applicable only as a collective right of state organized militias, not a right of individuals. The case is currently on appeal and the appeals judges are pondering whether the Second Amendment is "no longer necessary."
Banned in D.C.
In Parker v. U.S., Shelly Parker and five other D.C. residents complained that various D.C. Code sections and their enforcement policies violate their rights guaranteed by the Second Amendment. Text from the D.C. Code mandates that "no person or organization in the District shall possess or control any firearm, unless the person or organization holds a valid registration certificate for the firearm."
If the District is willing to issue one, registration certificates are available for some rifles and shotguns, but the Code mandates that: "A registration certificate shall not be issued for a . . . Pistol not validly registered to the current registrant in the District prior to September 24, 1976."
Essentially, the District maintains a complete ban on the home ownership and possession of handguns by private citizens (non-law enforcement officers) who did not register a handgun prior to September 24, 1976.
The effective use of any firearm for home defense is also prohibited: "Except for law enforcement personnel described in § 7-2502.01(b)(1), each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia."
A first violation of the District of Columbia’s ban on the ownership or possession of handguns or other functional firearms within the home for lawful purposes is punishable as a misdemeanor by a fine of up to $1,000, imprisonment of up to one year, or both. A second offense is punishable as a felony by a fine of up to $5,000, imprisonment of up to five years, or both, in the case of a handgun or other non-registerable firearm.
The crux of the plaintiff’s complaint is that: "Thus, while the penalty for carrying a handgun in public is five years imprisonment and/or $5,000, any person who carries a handgun on his or her own property is subject to one year imprisonment and/or a fine of $1,000 as set forth in D.C. Code §22-4515—even if the handgun could be legally registered. Licenses to carry a handgun are rarely, if ever, issued to private citizens (non-law enforcement officers)" and that by "maintaining and enforcing a set of laws banning the private ownership and possession of handguns and functional firearms within the home, forbidding otherwise lawful self-defense usage of arms, and forbidding the movement of a handgun on an individual’s property, defendants are propagating customs, policies, and practices that violate the plaintiffs’ individual rights under the Second Amendment to the United States Constitution, damaging plaintiffs in violation of 42 U.S.C. § 1983. Plaintiffs are therefore entitled to permanent injunctive relief against such customs, policies, and practices."
The Cato Institute helped initiate the lawsuit in 2003. They stated, "The lead plaintiff, Shelly Parker, resides in a high-crime neighborhood. As a result of trying to make her neighborhood a better place to live, Ms. Parker has been threatened by drug dealers. She would like to possess a handgun within her home for self-defense, but fears arrest, prosecution, incarceration, and fines because of D.C.’s unconstitutional gun ban. A second plaintiff is a Special Police Officer who carries a handgun to provide security for the Thurgood Marshall Judicial Center. But when he applied for permission to possess a handgun within his home, the D.C. government turned him down. Other plaintiffs include a gay man who has been assaulted on account of his sexual orientation, and the owner of a registered shotgun who cannot lawfully render her gun operational."
A lower federal court judge ruled in 2004 that the plaintiffs did not have a constitutional right to own handguns. On another day of infamy, December 7, 2006, Todd Kim, the District’s solicitor general, argued that the Second Amendment right to bear arms applies only to militias, not individuals. Kim told the U.S. Court of Appeals for the District of Columbia that "we interpret the Second Amendment in military terms," claiming that the city would also have had the authority to ban all weapons.
Appeals Judge Laurence Silberman responded, "Show me anybody in the 19th century who interprets the Second Amendment the way you do. It doesn’t appear until much later, the middle of the 20th century." He also noted that, despite the law, handguns were common in the District.
The Appeals judges struggled with the meaning of the amendment’s language about militias. If a well-regulated militia is no longer needed, they asked, is the right to bear arms still necessary?
The plaintiff’s attorney, Alan Gura, responded: "That’s quite a task for any court to decide that a right is no longer necessary. If we decide that it’s no longer necessary, can we erase any part of the Constitution?"
The Appeals Court’s decision is expected relatively soon and the case has a chance of going to the Supreme Court. They have not ruled on a Second Amendment case since the 1934 U.S. v. Miller case. The court then upheld the National Firearms Act’s (NFA) ban on Miller’s sawed-off shotgun because it was not a commonly-used military firearm. Neither Miller, nor his attorney showed up to argue before the Supreme Court, leaving only the government to argue the case.
The NFA also essentially bans (by a strict taxation and registration scheme) machine guns and silencers. The Miller case could have turned out differently if both sides had been present to argue it or if Miller had been caught with a machine gun instead—a military firearm. The Supreme Court essentially ruled that since a sawed-off shotgun was not commonly used as a military weapon, Miller’s Second Amendment rights didn’t apply in that case. The Miller decision did allude to maintaining protections for keeping and bearing military type weapons. The machine guns and silencers also banned by the NFA would have met different criteria and probably would have changed the outcome of the case—if they were an actual question before the court. The Supreme Court has been mute on the Second Amendment ever since.
Other Supreme Court "gun cases," skirt around the Second Amendment, as the 1995 Lopez case did. The Lopez case challenged the federal school zone gun ban law, which pivoted around the "Commerce Clause" of the Constitution.
The primary issue in the present Parker case, whether the Second Amendment is a collective right of a state and its militia, or an individual right belonging to the people, has been decided in the various federal circuit courts with considerable contradiction. The circuit court rulings apply within their venue, leaving the legal meaning of the Second Amendment confused around the country. Until the Supreme Court provides a national answer to the question, it will remain confused.
A federal question?
The Supreme Court has avoided clarification for over 70 years, possibly because answering it correctly (and often they do) will overturn much of what the federal government has become in the past several decades. What would come of airport security if every American had the right to bear arms without infringement? How many TSA and Air Marshall jobs would be lost if we the people assumed personal responsibility for our own security? The Bureau of Alcohol Tobacco and Firearms has seen one of the largest recent expansions of any federal agency. What would happen if they were cut back to whiskey and smokes? How much farther would the police state get if the Supreme Court acknowledged the people’s right to keep and bear arms means the right to repel such unlawful oppression without infringement?
The Supreme Court turned down a challenge to California’s "assault weapons" ban last year. The Parker case is singularly focused on the Second Amendment. Will they choose to hear it? The question is ripe, but the outcome will have far reaching consequences.
Almost every scholarly review of the history and meaning of the Second Amendment reaches the conclusion that it is and was intended to be a right secured to each individual member of "the people." Those who advocate the collectivist "right" of state militias theory very imaginatively base their claims on the unfounded allegations and blind rhetoric that only U.S. Attorneys and an immune-from-liability-for-life-judiciary are capable of.
What are the linguistic facts of life at issue here?
"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."
How has such language been interpreted in D. C.?
A State "right?"
D.C. Court of Appeals, in Sandidge v. United States, held that the Second Amendment only guarantees a state militia right, and the concurring opinion argues that the "free State" clause of the Second Amendment restricts the Amendment to the states. The judges in the Sandidge case introduced a unique argument into the debate that, if valid, applies exclusively to the District: the District is not a state, and thus the "free State" language of the Second Amendment precludes its applicability to the District. They also argued that the militia act applicable to the District provides only that the National Guard may keep arms in armories.
But a historical review of militia legislation in the District shows an early federal militia act that requires every able-bodied white male citizen of the District to provide himself with a musket, rifle, or pistol. The word "white" was later stricken, and Congress passed a militia act for the District that recognized "every able-bodied male citizen within the District" as a member of the militia.
Meanwhile, in Sandidge, the D.C. Court of Appeals affirmed a conviction for carrying a pistol without a license and possession of an unregistered firearm. The court held that "the Second Amendment guarantees a collective rather than an individual right.... [I]t protects a state’s right to raise and regulate a militia by prohibiting Congress from enacting legislation that will interfere with that right."
It must first be stated that the Bill of Rights does not impart any "rights" to government. Rights belong to people; "powers" are granted to government by the people through the Constitution. The Tenth Amendment protects the people’s "rights" by limiting the "powers" of government.
Modern scholarship has overwhelmingly established that the Second Amendment was intended to guarantee an individual right to keep and bear private arms, and that this guarantee would promote a well-regulated militia, seen by the Framers as necessary to guard a free society from a standing army.
James Madison was the original author of the Bill of Rights. His early draft of what would become known as the Second Amendment read as follows:
"The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person."
The House Select Committee later changed the language to: "A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms."
The language shows clearly the intent of the framers was not to give any "rights" to a state to regulate and raise a militia, but rather, to maintain a condition of freedom or a "free state" by not infringing on the people’s right to be armed if they so choose.
The States do not have the right to free speech or the press, to peaceably assemble or to follow the religion of their choice. States do not have the right to petition themselves, nor be secure in their persons, papers, houses and effects from unreasonable searches and seizures. Rights do not accrue to States—they only have powers—and properly so, only when they are lawfully granted by the source of all political power—the people.
Stephen P. Halbrook concludes his analysis of the Parker case with: "Making it a criminal act for a law-abiding citizen to keep and bear arms is tantamount to a badge of slavery. It is unlawful in the District to keep a pistol in the home, many semiautomatic firearms are unlawful to possess, a registered firearm must be kept unloaded and disassembled or trigger-locked and thus worthless for self-defense, and by policy no person may be issued a permit to carry a concealed weapon, no matter how dire the threat. The honest, law-abiding citizens of the nation’s capital, popularly known as the murder capital of the United States, are no more than second-class citizens."
And while we twiddle...
The Supreme Court may be reluctant to hear this issue, considering the gravity of its effects on the present federal agenda of control, control, control. After their recent "Eminent Domain" case, which eviscerated that right, do we really want an unaccountable-for-life judiciary to do any more damage? And how has the court changed since the departure of Justice Sandra Day O’Connor and her "swing vote?"
We the people are locked out of the political process and government has locked its sights on us. The conventional media is a tool for mass mind control, programming us with false news and a barrage of mindless chatter, while avoiding substantive issues like what evidences the real perpetrators of 9/11 and exactly how the many government-directed genocide programs are presently in effect at home and abroad.
The political "parties" exclude genuine discourse on the real issues and operate in lockstep with the corporate interests who paved their way to power. The present political structure has been best described as a two-faced, one-party system. No one of genuine merit will ever be "allowed" to get elected and effectively represent the people’s interests.
No longer necessary?
• Our borders are wide open.
• The federal tax system is a fraud enforced at (government) gunpoint.
• An illegal, unwinable war in Iraq is now staging to engage Iran on similarly false pretenses.
• The draft is soon to be reintroduced—this time it will be expanded to include your daughters (no child left behind).
• More is being done by the FDA and the CDC to promote death and disease than prevent it.
• Often referred to as "sheeple," the American people will live up to that name as the Real ID Act mandates citizen tagging and tracking devices in their 2008 driver’s license.
• The token economy is on the verge of tanking, requiring high-level meetings with the Chinese and others who stated they will dump Trillions of Treasury Bills and end our play on the global monopoly board—no more get out of jail free card.
• The over one million Americans who are presently incarcerated unjustly will soon become a pale issue, once the Halliburton built detention centers start filling up with "dissidents."
• The last line of defense—our personal right to keep and bear arms—is now highly regulated or outright banned by the government.
Can the present government ever admit and acknowledge the intended purpose of the Second Amendment: That in order for every man and woman to maintain their free condition, they necessarily have an inherent right to personally own and use arms which have the power to put a permanent hole in the face of tyranny? Can our present government claim that it is adequately protecting the security of our free state for us? Can our present government honestly declare that such a right is "no longer necessary?"
For a highly documented analysis of the Parker case and the Second Amendment by Stephen P. Halbrook visit: www.guncite.com/journals/
The extensive compendium on the Second Amendment, particularly historical evidence and contemporary opinions supporting claims that the right to keep and bear arms is an individual rather than collective right, UNMISTAKABLE TYRANNY is available from The Idaho Observer.
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