Wednesday, March 19, 2008
Comments made by justices in an ongoing landmark case, which seeks to address the very meaning of the second amendment, have been heralded as a "victory" for the individual right to bear arms, but in reality the second amendment is being completely eroded altogether.
Individual Right to Bear Arms Wins Favor in Court Argument, the headline from the New York Law Journal, was typical of the media output yesterday after most of the nine Supreme Court justices hinted that the right to bear arms is a "general right."
However, the case is likely to conclude with the introduction of several new regulations on hand gun ownership at the very least, and, if the government gets its way, a total ban on handguns.
The outcome will set the precedent for gun laws nationwide.
The NY Law Journal writes:
Justice Kennedy’s comments appeared to spell trouble for efforts by the District of Columbia to revive its strict handgun ban, although lawyers for both the Bush administration and gun-rights advocates acknowledged that some lesser regulation of the right would be acceptable.
Counting Justice Kennedy, it appeared that five or more justices were ready to recognize some form of an individual right to keep and bear arms that is only loosely tethered, if at all, to the functioning of militias. What kind of regulation of that individual right will be allowed by those justices is uncertain.
When the arguments were over, gun-control advocates seemed less pessimistic than before the session began, though they did not predict victory.
Joshua Horwitz, director of the Education Fund to Stop Gun Violence, who filed a brief in the case and watched the arguments, conceded he cannot count five votes for a strictly militia-rights view of the Second Amendment that would allow for almost unlimited regulation of firearms. But he could conceive of five justices adopting an individual-rights view that will mean "a lot of regulations will be OK. The outcome is not necessarily poor for us."
The case, DC v. Heller, stems from proceedings filed by lawyers for security guard Mr Dick Anthony Heller, which state that the District’s categorical restrictions are so broad that they cannot comply with the Second Amendment’s protection of the right to bear arms.
An amicus curiae brief filed by U.S Solicitor General Paul D. Clement, on behalf of the Bush administration and the government, says that federal gun control measures should not be limited and proposes that a court may determine that a full scale ban on almost all self-defense firearms may be upheld as constitutional if it constitutes a “reasonable” restriction of constitutional rights.
Lawyer Alan Gura, opposing the law and representing Mr Heller said "We have here a ban on all guns for all people in all homes at all times in the nation’s capital."
Advocates of the ban and the representatives of the District of Columbia have attempted to argue that the history and context of the second amendment applies to the rights of militias and not to individuals.
However, there are thousands of quotes from the founding fathers that pour water on this weak argument. The founders said over and over that when a government seeks to take away individual weapons it constitutes tyranny and that government must be removed.
Here are a few choice quotes:
A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks.
— Thomas Jefferson to Peter Carr, 1785. The Writings of Thomas Jefferson, (Memorial Edition) Lipscomb and Bergh, editors.
We established however some, although not all its [self-government] 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;
—Thomas Jefferson to John Cartwright, 1824. Memorial Edition 16:45, Lipscomb and Bergh, editors.
No freeman shall ever be debarred the use of arms.
—Thomas Jefferson: Draft Virginia Constitution, 1776.
[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation…(where) the governments are afraid to trust the people with arms.
—James Madison,The Federalist Papers, No. 46.
To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws.
—John Adams, A Defence of the Constitutions of the United States 475 (1787-1788)
Furthermore, even if you argue that the second amendment applies to militias, the very definition of the militia, according to the founders and their contemporaries, is THE PEOPLE:
Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American…[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.
—Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.
Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.
—Noah Webster, An Examination of the Leading Principles of the Federal Constitution (Philadelphia 1787).
Last month a majority of the Senate and more than half of the members of the House issued a brief in which they urged the Supreme Court to uphold it’s previous ruling that the District’s handgun ban violates the second amendment.
The brief asked the Supreme Court to uphold the lower courts decision and allow the precedent of applying a stricter standard of review for gun control cases to stand.
In a separate letter, other representatives, including Congressman Ron Paul, called for the Clement/Bush administration brief to be withdrawn as it sets a precedent for further erosion of individuals’ Second Amendment rights to keep and bear arms.
Citing Constitutional concerns the letter stated:
“If the Supreme Court finds that the D.C. gun ban is a “reasonable” limitation of Second Amendment rights, the Court could create a dangerous precedent for the nation in the future. Such a decision could open the door to further regulation on American citizens’ Second Amendment rights on a large scale.”
Essentially the government is saying "You have the right to bear arms, unless we say so."
Where there is individual ownership of weapons there is liberty, where there is not there is tyranny because powerful organizations and governments will have a monopoly on it. The latest developments in this case are not a "victory" for the second amendment, on the contrary, they constitute its very undoing.
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