Reply #242: The "compelling interest" falls to the requirements of the Militia however,

[jmg257]

as the guarantees in the constitution depend on it - being well-armed and well-trained. WE are the militia as intended.
Change the amendment - you may have a point.


This "compelling governmental interest test" is hopelessly incoherent, as Justice Hugo Black, dissenting, proved in the early decision in Konigsberg v. State Bar of California, 366 U.S. 36 (1961). An even more fundamental point than Black made in that case, though, is that any government's most "compelling" interest is to protect its citizens in the enjoyment of their lives, liberties, and property. Every citizen "owes allegiance and is entitled to its protection. Allegiance and protection are, in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance." Minor v. Happersett, 88 U.S. (21 Wall.) 162, 165-66 (1875). Accord, Luria v. United States, 231 U.S. 9, 12 (1913).

Absent protection from the government, no citizens owe allegiance to it; but absent citizens' owing allegiance to it, there can be no "government" at all, rightly understood, because a "government" without loyal citizens is a contradiction in terms. As the Declaration of Independence asserted in its indictment of King George III, "e has abdicated Government here, by declaring us out of his Protection and waging War against us." So, how can there possibly ever be a more "compelling interest" that justifies abridging the government's most "compelling interest", upon the achievement of which its very existence and legitimacy depend?

Notwithstanding the self-contradictory nature of the "compelling governmental interest test", the courts now routinely employ it. And inasmuch as they apply it even to the First Amendment--the constitutional provision most beloved by the legal intelligentsiia, because it offers them the greatest range of opportunities for subverting, debasing, and generally corrupting America's culture--judges will certainly enforce it with even more gusto against the Second Amendment, which the legal intelligentsiia despise, fear, and desire to destroy.

Moreover, a "compelling government interest" and the "least-restrictive means" to achieve it are matters that judges themselves will decide, whilst recognizing no requirement for their decisions to rest on actual evidence, historical facts, objective standards, or even common sense.

For example, assume that Congress enacts a purported statute which bans the transportation, receipt, sale, barter, gift, transfer, or possession in interstate commerce of all handguns by private individuals. "Surely a clear-cut violation of the Second Amendment!" you say. Not so, as any $500-an-hour "gun-control" shyster attorney can easily demonstrate in the contemporary kangaroo courts:

Criminals use "concealable handguns" to commit violent crimes.

The government has a "compelling interest" in reducing the incidence of all crimes, including those committed with "concealable handguns".

Because all handguns are more or less "concealable", all handguns are "concealable handguns".

Criminals obtain handguns in the markets, white or black, which operate through or affect interstate commerce.

If all these markets were absolutely denuded of handguns, criminals could not obtain them, and then could not use them to commit crimes.

If interstate commerce were absolutely denuded of handguns, there would be none in the markets.

The only way to remove all handguns from interstate commerce is to prohibit them absolutely.

Therefore, the "least-restrictive means" to serve the "compelling interest" is to outlaw transportation, receipt, et cetera of all handguns in interstate commerce. And,

Inasmuch as they say the Second Amendment protects only the right of common individuals to possess "sporting" firearms (the Amendment's "well regulated Militia" phrase being irrelevant), the government's "compelling interest" in banning all firearms outweighs any individual's personal interest in possessing any firearm, because the suppression of crime is undoubtedly more important than the pursuit of a mere hobby.

Thus the Second Amendment is rendered (or proves itself) impotent.

Now, no true constitutionalist would ever admit that the foregoing "gun control" argument is even cogent, let alone unanswerable. To the contrary, properly contested it, and the "balancing test" on which it rests, are easily demolished. Nonetheless, this little mental exercise demonstrates that as soon as one accepts the propositions that (i) the only or best protection for "the right of the people to keep and bear Arms" comes from those words in the Second Amendment, coupled solely with the further phrase "shall not be infringed", (ii) the "Arms" to which the Amendment refers have no necessary relation to " well regulated Militia", and (iii) the Amendment's prohibition on any "infringe" of "the right of the people to keep and bear Arms" is always subject to the Judiciary's crackbrained "compelling governmental interest test", then the path to destruction of that right is straight downhill.

For a somewhat different example, assume that Congress enacts a purported statute which bans the private possession of all firearms, and requires them to be surrendered to the BATFE for immediate destruction. On its face, such a statute is legally psychotic: On the one hand, to require individuals voluntarily to surrender their firearms to a governmental agency is to demand that they demonstrate their allegiance to the government by such an act. Yet, on the other hand, to disarm those individuals is to deny them the means of self-defense and self-preservation both from common criminals and (more importantly) from usurpers and tyrants. Self-defense is the only recourse left to citizens from common criminals when the police are not on the scene (which is most of the time), and especially when usurpers and tyrants control the police and employ them to enforce their usurpation and tyranny (which in that event is all of the time). A true "government" is obliged, as a condition of its legitimacy and authority, to provide its citizens with protection under all circumstances--which requires it to empower, enable, or at least allow those citizens to possess and use efficacious means for self-defense when it cannot protect them directly, which is the case from time to time when common criminals or psychopaths strike unexpectedly, or at all times when society finds itself ground down under the iron heels of sociopathic usurpers and tyrants. For public officials affirmatively and intentionally to make impossible self-protection by the citizens, by requiring them to surrender their firearms and render themselves utterly defenseless in the face of deadly aggression, puts an end to the citizens' "reciprocal obligation< >" of allegiance to the government. But if that allegiance is nonetheless forced by, say, requiring citizens to suffer in silence house to house searches for and seizures of firearms, under color of law, what other than tyranny has been established? A government that refuses protection to its citizens, but instead exposes them to destruction, cannot demand their allegiance; and a government that demands their allegiance without offering them protection--let alone while prohibiting them from protecting themselves--is no government at all, only a criminal conspiracy among the public officials constituting it.<4>

Thus, the very existence of such a statute, intended to further, and as an overt act evidencing, a criminal conspiracy against society, is itself a perfect legal justification for disobeying its commands, as well as any purported court order or other mechanism aimed at its enforcement. Disobedience to such a statute, order, or other mechanism could not be a crime, because "n unconstitutional act is not a law; * * * it imposes no duties; it is, in legal contemplation, as inoperative as though it had never been passed". Norton v. Shelby County, 118 U.S. 425, 442 (1886). "An unconstitutional act is not a law; it binds no one". Huntington v. Worthen, 120 U.S. 97, 101-02 (1887). "An unconstitutional law is void, and is as no law. An offence created by it is not a crime." Ex parte Siebold, 100 U.S. 371, 376 (1880), quoted with approval in Fay v. Noia, 372 U.S. 391, 408 (1963).

Observe that, in the course of this argument, the Second Amendment, "compelling governmental interests", and "least-restrictive means" find no place at all, because the first is not necessary and the other two are not proper.

http://www.newswithviews.com/Vieira/edwin16.htm