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Reply #103: "The 'right' you refer to only came into being 2 yrs ago" [View All]

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TPaine7 Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Mar-07-10 11:41 PM
Response to Reply #90
103. "The 'right' you refer to only came into being 2 yrs ago"
Edited on Mon Mar-08-10 12:27 AM by TPaine7
I believe you are misinformed. (In saying that, I am assuming you are not dishonest.)

The Second Amendment right to keep and bear arms most certainly did not come into existence 2 yrs ago. Nor was the "Bush v Gore-tilted USSC" the first to recognize the right. For example, the very first time the full Court mentioned the right to keep and bear arms, it called it a right "of person"--an individual right:

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.

Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.

These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.

Source: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=...


The Court, in the same case, made clear that individual citizens had the right to travel freely in every state in the union and to keep and carry arms wherever they went:

For if they <African Americans>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 <60 U.S. 393, 417> 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.


In Cruikshank, the Court said that the people's right to keep and bear arms for legal purposes in no way depends on the Constitution:

The right there specified <in the Second Amendment> 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.

Source: http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=...


The Second Amendment itself references the people's right--not the militia's right or the state's right--as already existing.

Now even thought the Supreme Court had said, in the infamous Dred Scott case quoted above, that citizens of one state could travel freely in every state and carry guns everywhere they went, it changed its tune when it was no longer possible to pretend that blacks were not citizens.

The {S}econd {A}mendment 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, to {local authorities}.


In other words, while the Court recognized a personal, pre-existing right, it now said that the right was only protected against national government violation. The freed slaves had to depend on Southern states to enforce their rights against the KKK.

This was the best strategy the Supreme Court could find to protect southern racists, screw over the former slaves and still maintain a veneer of apparent respect for the Constitution. (When you have studied the subject as I have, it is eerily similar to the way the Brady Campaign, the VPC and other organizations try to protect gun control while maintaining a thin veneer of apparent respect for the Constitution.)

To appreciate how thin and transparent the veneer was, it is only necessary to know the history of the Fourteenth Amendment--the one the Court was intentionally defying. There is no doubt that the Framers of the Fourteenth Amendment meant to protect the right to keep and bear arms AGAINST THE STATES. They echoed the "privileges or immunities" language of Dred Scott to overrule it explicitly.

Dred Scott:

For if they <African Americans>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 <60 U.S. 393, 417> 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.


Fourteenth Amendment

Section 1.
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.


Now there are people who will blow smoke to the effect that the Fourteenth Amendment was never intended to make the Bill of Rights to apply against the states or to allow Congress to enforce the first eight Amendments against the states. Among those disagreeing with that were the Framers of the Fourteenth Amendment. For example, here is how the Amendment was introduced on the floor of the Senate:

{The Fourteenth Amendment's} first clause, {which} I regard as very important . . . relates to the privileges and immunities of citizens of the United States . . . . To these privileges and immunities, whatever they may befor they are not and cannot be fully defined in their entire extent and precise natureto these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all of the people; the right to keep and bear arms. . . .

{T}hese guarantees . . . stand simply as a bill of rights in the Constitution {and} States are not restrained from violating the principles embraced in them . The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.Senator Jacob Howard introducing the Fourteenth Amendment to the Senate, quoted by Yale Professor Amar. Akhil Reed Amar, The Bill of Rights, Creation and Reconstruction (Harrisonburg, VA: R.R. Donnelley & Sons Company, 1998), 185-6 (emphases supplied).


Two points on that last quote:

1) According to some of the guys who actually wrote the Constitution, the Second Amendment right was one that the states could be compelled to respect. It is ridiculous to force an entity to respect it's own rights. I daresay that no governmental entity in the history of the world has ever needed to be compelled to respect its own rights. It follows then, that ACCORDING TO THE AUTHORS OF THE CONSTITUTION, the Second Amendment does not protect a right of the states.

2) The right to keep and bear arms that the Framers meant to protect was a right appertaining to each and all of the people--a personal, individual right.

The individual right to keep and bear arms has been mentioned many times in Supreme Court opinions and even quoted directly many times. Usually, the Court has only quoted the operative portion, the part that says what must not be done:

Of the twenty-nine U.S. Supreme Court opinions (including Miller) which have quoted the Second Amendment, twenty three contain only a partial quote. This quoting pattern suggests that, generally speaking, Supreme Court justices have not considered the "purpose clause" at the beginning of the Second Amendment to be essential to the meaning of the main clause.

Source: David B Kopel, et. al., Supreme Court Gun Cases, (Phoenix, AZ: Bloomfield Press, 2004), 83.


It is a canon of legal interpretation that if a law, amendment or constitution has a preamble or purpose clause, that clause only limits the operative clause(s) if the operative clause(s) is (are) unclear. This was so in the time of the founding and it is still the case today.

"The right of the people to keep and bear arms shall not be infringed" is not unclear.

It is not possible for an honest, informed and intelligent person to say what you said. Assuming that you are intelligent and honest, I must conclude that you are misinformed. It is perilous to depend on the media for technical or detailed information--stuff that requires sophisticated thinking--ON ANY SUBJECT WHATSOEVER. At least that has been my experience, and certainly not only on this subject.

I have read over and over again in "reputable" media sources that "the Supreme Courts said for the first time that the Second Amendment protects (or even worse, creates) an individual right." This is false. It may be an intentional lie, a parroting of Brady propaganda or simply a result of speaking on subjects in which they lack even the slightest competence--but it is false nonetheless.

Unfortunately, good, decent people like you swallow the false "facts" and use them as premises in your thinking.

The Heller Court's decision was in harmony with things the Court has said repeatedly throughout its history. It was not a departure from legitimate Court precedent (though it did depart from the transparently racist foundations of American gun control).

The right of individuals to keep and bear arms--unrelated to militia service or state authority--definitely did not come into existence two years ago. You have been misinformed.
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