ARMED-M
________________________________________________________________________________________________________
The
Armed M is a publication of the 2nd Amendment SIG, a special interest group of
American Mensa Ltd. Opinions
expressed herein are the opinions of the writers, and not of American Mensa,
Ltd. which has no opinions. This
newsletter is linked to the Mensa web page WWW.Mensa.org as WWW.webcatt.com/2ndAmend_SIG
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========
Sept.
2000
I
have moved and am now in Wilmington North Carolina.
My E-Mail address is Smith13@Worldnet.att.net. I can always use contributions to the newsletter.
If you write something or find something e-mail it to me I'll put it in
the newsletter as space and theme allows. Bob
Smith
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Written by one of our members
David Bowden Omsigdivid@Yahoo.com
"THE COMMONWEALTH IS THEIRS
WHO HOLD THE ARMS
: THE SWORD AND SOVEREIGNTY EVER
WALK HAND IN HAND" ARISTOTLE
"A
WELL REGULATED MILITIA BEING NECESSARY TO THE SECURITY OF A FREE STATE, THE
RIGHT OF THE PEOPLE TO KEEP AND BEAR ARKS SHALL NOT BE INFRINGED" US
CONSTITUTION, 2ND AMENDMENT: SUPREME LAW OF THE LAND
US
SUPREME COURT DEBUNKS "GUN CONTROL"
Is the US
Supreme Court awaiting the best case to use to end "gun control"?
(Thus to grant all America the freedom enjoyed by people of the State of
Vermont, which has no gun laws?) The following arguments are offered in hope
that the reader will find then of use in supporting his right to self-defense
from the infringements of any government in America. This writing is rendered
against the background of the authoritarian-collectivists " historically
FALSE propositions that the 2nd Amendment: 1. Only protects a collective right
of the states (against the US government) to a national guard, and 2. Defends no
individual rights. Alternatively, the libertarian-individualists' position is
that the 2nd, and 9th, Amendments protect the natural rights of each citizen to
carry personal weapons for defense from violent crime. If it be argued that the
cases hereinafter exegesis are only obiter dicta (i.e., setting no controlling
precedent, qua the right to bear arms, because that right was not before the
Court), observe that in the case of US v. VERDUGO (1990) 110 S.Ct. 1056 (at P.
1061) the US Supreme Court declares that:
"The
Second Amendment protects 'the right of the people to keep and bear arms'".
THE
SUPREME COURT THEN PROCEEDS TO DEFINE "THE PEOPLE" AS BEING THE SAME
PEOPLE WHO CAN VOTE TO ELECT THE US HOUSE OF REPRESENTATIVES EVERY SECOND YEAR.
(Notably, one need not join the National Guard in order to vote for his
congressman.) The Court further defined "the people" to mean those
people who have a right peaceably to assemble Cist Amendment] and those who have
the right to be free of unreasonable searches and seizures [4th Amendment] in
their persons houses, papers and effects (personal rights, not rights of states,
as the authoritarian-collectivists allege of the 2nd Amendment).THE COURT HELD
THAT THE TERM "THE PEOPLE" MEANS THE SAME THING EVERYWHERE THAT IT IS
FOUND IN THE CONSTITUTION OF 1787, AND EVERYWHERE THAT IT IS FOUND IN THE BILL
OF RIGHTS.
It is noteworthy that the Court RELIED upon its definition of
"the people". Its conclusion in the Verducto case is founded upon that
definition, so that stare decisis attaches, thus creating binding judicial
precedent, explaining WHO THE PEOPLE ARE who have the said rights. That law
SHOULD control the courts, thus disabling all governments in America from
violating our personal rights to weaponry and self-defense.
The next case declares principles of interest to scholars of the 2nd and
9th Amendments, who reason by analogy, regardless of their opinions concerning
abortion:
In
PLANNED PARENTHOOD v. CASEY (1992) 112 S.Ct. 2791 the US Supreme Court declares
that:
"by
the express provisions of the FIRST EIGHT amendments to the Constitution"
rights were "guaranteed to THE INDIVIDUAL". (P. 2805)
(Emphasis added]
The
2nd Amendment is within "the first eight amendments".
The Supreme Court then adopts the Harlan dissent in Poe v. Ullman 367 US
497: 11 ... "liberty' is not a series of isolated points ... in terms of
the taking of property; the freedom of speech, press and religion; the RIGHT TO
KEEP and BEAR ARMS; the freedom from unreasonable searches and seizures.... It
is a rational continuum which includes a freedom from all arbitrary
impositions... "[Emphasis added] (Notice
no reference to any state government militia.)
on
the same page, the Supreme Court invokes the 9th Amendment to curtail the powers
of the states, thru the 14th Amendment. Historically, the purpose of the 9th
Amendment was to preserve, and carry intact into perpetuity, those rights
already freely enjoyed by Americans and Englishmen, as of the time of the
American Revolution. By virtue of the English Bill of Rights of 1689, the long
established right to keep and bear arms was clearly recognized and protected,
with the 9th Amendment of the US Bill of Rights perpetuating the old English
rights in America.
In
said PLANNED PARENTHOOD case, speaking of the right to reproductive autonomy,
the US Supreme Court used the following language (in pertinent part, from
perspective of the right to self-defense):
"Our
law affords constitutional protection to PERSONAL DECISIONS ***. Our cases
recognize 'the right of the individual *** to be free* from unwarranted
governmental intrusion into matters *** fundamentally affecting a person' ***.
These matters involving the most intimate and PERSONAL CHOICES a person may make
in a lifetime, choices central to PERSONAL DIGNITY and AUTONOMY, are central to
the liberty protected by the 14th Amendment." (P. 2807)
Let us ANALOGIZE this reasoning to situations bearing upon the right to
self-defense: a garage in Brooklyn was raided by a criminal who, NOT BEING
SATISFIED TO ROB its attendant, caused him to take a supine position, whereupon
he committed an unsanitary act all over him; criminals have expressed their
sadism upon their victims, in grotesque and shocking ways.
It
is most respectfully submitted, for your consideration, that THE QUESTION OF
WHETHER TO PEACEFULLY SUBMIT ("better Red than dead"), to robbery or
sexual violation (and/or to your own murder) OR TO FORCEFULLY RESIST IS A
"personal decision *** fundamentally affecting a person and bearing upon
"*** personal dignity and autonomy
(Arguably,
government had gone into partnership with the criminal, providing for his
personal safety on the job [as per O.S.H.A.] by disarming his victims,
prospectively.) On the same page of PARENT- HOOD case, the Court notes that
abortion is an act "fraught with consequences for others ***11 and that it
has effects upon society, but that 11*** the liberty of the woman is at stake in
a sense unique to the human condition and so unique to the law ***" thus,
said
consequences and effects "*** cannot alone be grounds for the State
to insist she make the sacrifice ***11. [Emphasis added] (Is being robbed, or
forcibly sodomized, " unique.”?) By
this reasoning, even if the authoritarian-collectivists were right that repeal
of victim disarmament laws would result in more injuries from guns, those
considerations are outweighed by the unique quality of the existential right to
self-defense against being robbed, sexually defiled, or murdered.
In
Hickman v. Block, a panel of the 9th Circuit Court of Appeals affirmed a
California Federal District Court (IGNORING THE US SUPREME COURT in its
aforequoted cases) holding that the 2nd Amendment protects only a right of the
states against the US government. This ruling denies that any personal rights
exist under the 2nd Amendment. The Supreme Court denied certiorari (awaiting a
better case?]. 6 days after the Hickman case, another judge of the same 9th
Circuit Court of Appeals said in the case of US v. GOMEZ, 81 F. 3rd 846 (at P.
854, note 7) that:
"The
Second Amendment embodies the right to defend oneself and one's home against
physical attack." (Emphasis
added]
Qua what arms the people have rights to keep and bear, the US Supreme
Court has told us in US v. MILLER (1939) 307 US 174, that they should be
"ordinary military equipment *** Aymette v. State 2 Hump. (21 Tenn.] 154,
158.11 The Aymette case, which the Supreme court approvingly adopted declares:
"the arms, the right to keep which is secured, are such as are usually
employed in civilized warfare, and that constitute ordinary military equipment.
If the citizens have these arms in their hands, they are prepared in the best
possible manner to repel any encroachments on their rights." Note that
every army uses handguns and rifles. Guns were among the world's first machines
with moving parts, (tho more easily made now with modern "know- how")
. Guns were not new to Columbus, nor to his grandfather. They are simple
machines, easily made. The accumulated knowledge of the gunsmith is not secret;
it is among the world's freely available engineering data. If criminals were
disarmed, they would re-arm, using that information, and access to the hardware
stores of America; thus the FUTILITY of gun control philosophy: the disarmament
of criminals is absolutely 1XE2§jW .
&J. (The M-1 Carbine was invented by a prisoner, in prison; convicts have
secretly made pistols [including sub-machineguns] in prison workshops.) ]?ZRXANZNT
REMOVAL FROM AMERICA OF VIOLENTLY FELONIOUS RECIDIVISTS CAN REDUCE BLOODY CRIME
IN AMERICA. Crime comes from bad people, not tools.
The
repressionists desire to eliminate guns, which are sometimes used to facilitate
crime. They fail to understand that the actual weapon is the human mind, whose
cleverness has not been controlled nor restrained (even in prison). This mind
expresses itself perseveringly, into the manifestation of its felt needs or
desires, and it has FOREVER to do the job that it selects (e.g., the art of the
gunsmith/merchant). Prohibition is futile.
In
JOHNSON v. EISENTRAGER 339 US 763, (1950) the US supreme court held that the US
Bill of Rights did not protect German enemy aliens, as:
"Such
a construction would mean that during military occupation *** enemy elements,
guerrilla fighters, and 'werewolves' could require the American Judiciary to
assure them freedoms of speech,
press, and assembly, as in the First Amendment, RIGHT TO BEAR ARMS as in the
Second, security against 'unreasonable' searches and seizures as in the Fourth,
as well as rights to jur trial as in the Fifth and Sixth Amendments."'
[Emphasis added]
Observe
that the Supreme Court finds no need to refer to any state government militia;
this holding, and the choice of words in which it is expressed, concern PERSONAL
RIGHTS, not rights of state governments. The US Supreme Court has acknowledged
rights to personal defense, as shown forth in the 2nd Amendment. As early as
1857, that Court said that citizens are:
"***
entitled to the privileges and immunities of citizens ***11 and have
"***the full liberty of speech *** to hold public meetings upon
political affairs, and TO KEEP AND CARRY ARKS wherever they went."
(Emphasis added] Chief Justice Roger Taney Dred Scott v. Sanford 60 US 393
(1857)
Thus
the Court finds the individual citizen's rights protected from violation by any
government, be it federal, state, or local. Colonial America had its own gun
control laws: "every... inhabitant of this colony provide for himself and
each under him able to bear arms, a sufficient musket ... with [ammunition) and
for each default ... forfeit ten shillings." (New Plymouth 1632) For the
sake of safety, colonial gun control laws prohibited going to work, or to
church, in an unarmed condition. (Virginia 1631) Ministers checked to make sure
that their parishioners were fully armed. These laws were socially paradigmatic
as, since 1512, English boys aged 7 - 17 were required to be armed, at their
fathers' expense, with adapted longbows (deemed devastating since 1346 (Battle
of Crecy]; guns being less accurate, b4 invention of rifling) and "bring
them up in shooting". Male adults had to be armed. (Statute of Winchester,
as amended by King Henry VIII)2 Qua modern safety, a University of Chicago
study3 of FBI statistics of 16 years nationwide showed that states (31 of the
50) enacting laws to grant licensure for carrying concealed firearms to all
applicants (except judicially certified lunatics and criminals) have resulted in
drastic reductions of the violent crime rate. Adjoining jurisdictions, that did
not repeal "gun control" laws had immediate, sharp increases of
violent crime.
I
Dr. Stephen P. Halbrook: The Right To Keep and Bear Arms under the 2nd and 14th
Amendments: The Framerst intent and SuRreme court JurisRrudence (hereinafter set
forth as:"Framers' Intent") 2
David T. Hardy: Origins and Development of the 2nd Amendment
3 John R. Lott, Jr Journal of Legal Studies Jan 1997; More Guns Less
Crime John R. Lott, Jr. University of Chicago Press 1998
Supporting
"gun control" is like supporting drunken driving: it is dangerous and
reduces your chances to survive. From Kitty Genovese in N.Y.C. to Reginald Denny
in L.A., citizens have found out the hard way that police might be away for a
long time when you need them. Should your life depend on other people who are
not around? Is the right to self-defense limited to saints, angels and perfect
perfect Americans? the elite? 11 ... equal protection of the laws"?
Some
excerpts from the writings of Dr. Stephen Halbrook are very enlightening; (Dr.
Halbrook is an eminent scholar of constitutional history and a successful trial
attorney):
"St.
George Tucker, the first major commentator on the Bill of Rights (New York Times
v. Sullivan, 376 U.S. 254, 296-97 (1964]), explained the Second Amendment as
follows: 'The right of self-defense
is the first law of nature.... Wherever the right of the people to keep and bear
arms is, under any ~~ior or pretext whatsoever, prohibited, liberty...'is on the
brink of destruction.
IH
Dr. Halbrook observes: "In his concurring opinion in Duncan v.
Louisiana 391 US 145 (1968) Justice
Black recalled the ... words of Senator Jacob M. Howard in introducing the
(14th] amendment to the Senate in 1866: 'The personal rights guaranteed and
secured by the first eight amendments of the Constitution; such as ... the right
to keep and bear arms .... The great object of the first section of this
amendment is to restrain the power of the States and compel them at all times to
respect these great fundamental guarantees.' ... The same two-thirds of Congress
which proposed the Fourteenth Amendment also passed an enactment declaring that
the fundamental rights of 'personal liberty' and 'personal security, include
'the constitutional right to bear arms. I Freedmen's Bureau Act S14, 14 Stat.
176 (July 16th, 1866) (Emphasis added)
"No
court has ever considered Congress' declaration, contemporaneously with its
adoption of the Fourteenth Amendment, that the rights to personal security and
personal liberty include the 'constitutional right' - i.e., the right based on
the Second Amendment- Ito bear arms. I Until now, this declaration in the
Freedmen's Bureau Act has been completely unknown both to scholars and the
courts." Dr. Halbrook also cites the finding of Congress in the Firearms
Owners' Protection Act that: "The conclusion is thus inescapable that the
history, concept, and wording of the second amendment to the Constitution of the
United States, as well as its interpretation by every major commentator and
court in the first half -century after ratification, indicates that what is
protected is an individual right of a private citizen to own and carry
firearms in a peaceful manner. ,4 Dr. Halbrook states that: "In recent
years it has been suggested that the Second Amendment protects the 'collective'
right of states to maintain militias, while it does not protect the right of
'the people' to keep and bear arms. If anyone entertained this notion in the
period during which the Constitution and Bill of Rights were debated and
ratified, it remains one of the most closely guarded secrets of the eighteenth
century for no known writing surviving from the period between 1787
. v15 and 1791 states such a thesis.
All
aforequoted material on this page is of Framers' Intent, supra.
5 Halbrook, THAT EVERY MAN BE ARMED, U. of New Mexico Press
Another
ploy of the authoritarian-collectivists argues that the Bill of Rights protects
only "sporting guns" not defensive handguns or rifles; can we believe
that the Founders meant to follow an amendment securing freedoms of speech, the
press, and religion with an amendment protecting the possession
of sporting goods?6 The Constitution grants no more authority in any
government to control guns than to edit the Bible or control who has one. (It
should also be borne in mind that any conflict between the Constitution of 1787
[e.g. interstate commerce clause] and the Bill of Rights must be resolved to
favor the Bill of Rights because those rights were changes to the original
instrument.)
In
US v. Cruikshank 92 US 542 (1875), felonious convictions of some Klansmen for
violation of the lot Amendment (right of assembly), and of the 2nd Amendment
(the right to keep and bear arms), were reversed by the US Circuit Ct. of
Appeals f or Louisiana, on the grounds that it was neither pled nor proven that
THE STATE had, by its laws, abridged the rights of US citizens (Defendants being
Private citizens), and FOR TEAT REASON, 7 the 14th Amendment could not apply the
lot nor the 2nd Amendment to the case at bar; i. e. , the 14th Amendment only
protected citizens of La. from the GOVERNMENT of that State, not from their
fellow citizens. That Court pointedly implied that if officers of the State of
Louisiana had, BY ITS LAWS, violated the lot or 2nd Amendment, they would have
feloniously violated the 14th Amendment and the Enforcement Act of May 31, 1870.
Note that the US Supreme Ct. affirmed this case. In so doing, it held that the
rights of the lot and 2nd Amendments long antedated the Constitution, such that
when created, the US government found them in being.
In its opinion affirming the Cruikshank holding, the US Supreme Ct. said
of the 2nd Amendment that "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 to *** the powers which relate to merely
*** municipal legislation *** internal police." [Emphasis added].
David
B. Kopel: The "Assault Weapon" Panic
7
Sl of the 14th Amendment to the US Constitution provides: 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."
8
In 1897, the US Supreme Court re-iterated that point of view in Robertson v.
Baldwin 165 US 275, when it said that the first ten amendments "embody ***
immunities inherited from our English
ancestors *** FROM TIME IMMEMORIAL the
right of the people to keep and bear arms (article 2) is not infringed by laws
prohibiting the carrying of concealed weapons. ***11 a clear reference to
civil- ian armament, since NO laws prohibited military concealment of personal
weapons. (Emphasis added]
The
aforesaid Hickman panel of the 9th Circuit ct. of Appeals takes the
"states' rights" point of view of the 2nd Amendment; i.e., it reads
the Amendment as tho it said (only):
"The
US government shall have no authority to deprive the government of any state of
its military forces" (thus repealing Art. I S10 sub-S3, qua states keeping
troops]
One
might ask the Hickman court to consider that:
1. If states' rights is the correct concept of the 2nd Amendment, then,
definitionally, ONLY the US government is ABLE to. violate that right', so how
could the US Supreme Ct. contemplate "any violation BY THEIR FELLOW
CITIZENS of the rights it recognizes"? (If Bill owes Joe $100 on a
promissory note, Bill is the only person in the world who could possibly violate
Joe's rights under the note [by failing to pay according to its terms]).
If
the US government violated that right (allegedly of state governments) how could
the victimized governments "look for *** protection against *** violation
*** of the rights it recognizes" to "MUNICIPAL" authorities? I.e.
under the Hickman court's view of the 2nd Amendment (a right of the states
against US government), what is the point of states whose 2nd Amendment rights
are violated by US government, in appealing to their counties, towns, and
villages etc., as the US Supreme Ct. declares (hereinbefore) in Cruikshank? and by what reasoning did the Cruikshank Court
refer to "*** municipal *** police" to address such a violation? In
1875, the US Supreme Ct. was not promoting a second civil war.
In
saying that the 2nd Amendment only limited the powers of Congress, clearly the
Court was following its holding in
Barron v. Baltimore (1833) 7 Pet. 243 (that the Bill of Rights does not mean
what it says).
Yet, the author of S1 of the 14th Amendment, Rep. John A. Bingham,
explained in a speech in Congress on March 31st, 1871, that it was his intention
to overthrow Barron v. Baltimore when he wrote the 14th Amendment, thereby to
curtail the powers of the states by use of its "privileges and
immunities" and "due process" clauses, thus to enlarge the
personal freedo m of the Bill of
Rights, quoting verbatim each one of the first eight amendments. When Sen. Jacob
M. Howard introduced the 14th Amendment
to the US Senate, he described "the PERSONAL RIGHTS guaranteed
and secured by the first eight amendments of the constitution; such
as freedom of speech and the press;...the right to keep and boar
arms. ... The great object of the first section of this amendment is,
therefore, to restrain the power of the states and compel them... to respect
these great fundamental guarantees. "10 [emphasis
added]
Tho
it antedates (1984) the more recent cases hereinbefore considered, this writing
is heavily indebted to the wonderful treatise of Dr. Stephen Halbrook titled
"That Every Man Be Armed" (University of New Mexico Press), qua the
earlier cases. The rights of self-defense, and to its necessary equipment, can
therein be explored to great depth and profit.
9
such as by stripping away a state government's militia for federal use (e.g., as
President Eisenhower did to Arkansas" Governor Orval Faubus, in 1957, and
Kennedy did to Alabama's Governor
George Wallace, in 1963; did either Governor, or either of their respective
Attorneys General, or ANYONE assert that the state governments were protected by
the Second Amendment?)
10
Cong. Globe 23 May 1866; Halbrook, That Every Man Be Armed
In
studying the history and jurisprudential development of the right to keep and
bear arms, it should be borne in mind that when the US Constitution and Bill of
Rights were enacted, during the 1700s, there were NO POLICE anywhere in the USA,
nor had police existed in Colonial America, nor in England.
The concept of a police force BEGAN during the 1800s (both in America,
and in England). Accordingly, during the 1700s, if one were threatened, or
attacked, by a violent criminal, a predatory animal, or madman, it was as
imperative as it was paradigmatic that he have the means to handle the situation
himself, and this was the world that the Founding Fathers knew when they drew
the social and political contract that is the US Constitution.
DISPASSIONATE
ANALYSIS OF THE AMENDMENTS SYNTACTICAL
ARCHITECTURE MAY BE FACILITATED BY
THE FOLLOWING ANALOGY:
"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" US
Constitution, 2nd Amendment
ANALOGY:
A well educated-electorate being necessary to the security of a free
state, the right of THE PEOPLE to keep and read books shall not be infringed.
1.
Does this say that only voters have the right to read books?
2.
Does this say "well educated" only by STATE GOVERNMENT
colleges?
3.
Does this say that only voters who are professors of state run colleges
have the right to read books?
4.
Does this say that if you miss an election, it's ok for the Bureau of
Alcohol, Tobacco and Books to knock down your door and steal your books?
If
criminals are willing to ignore the laws against robbery; if criminals are
willing to disregard the laws against murder, can we rely upon them to obey new
"gun control" laws? (or old ones?)
The
authoritarian-collectivists deny the existence of a right of self -defense,
except by ineffective means; it is the Liberals' position that if the wolves are
eating the sheep, the teeth should be pulled from the mouths of the sheep. They
also fear (subliminally) that it is harder to apply the statist philosophy:
"authority from the top down, obedience from the bottom up" if the
people on the bottom are fully armed in their own defense. Then the top must
treat them with high respect. The fundamental concern is thus revealed to be
SOVEREIGNTY: WHO IS THE BOSS ?
Is
it A: the citizen, when he invokes his constitutional individual rights
(standing in the shoes of they who created government in America) or
Is
it B: his hired security crew, government? Favoring collectivism and authority
to coerce social and economic relationships that the Liberals like, they choose
"B.11