Yet another reason that
the Heller-McDonald decisions are unconstitutional besides judicial misconduct.
Not only do they go
against the proper interpretation of the Second Amendment as
explained by Justice William O. Douglas, who was on the Supreme Court
at the time of Miller in Adams
v. Williams, 407 US 143
(1972):
The police
problem is an acute one not because of the Fourth Amendment, but
because of the ease with which anyone can acquire a pistol. A
powerful lobby dins into the ears of our citizenry that these gun
purchases are constitutional rights protected by the Second
Amendment, which reads, "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."
There is
under our decisions no reason why stiff state laws governing the
purchase and possession of pistols may not be enacted. There is no
reason why pistols may not be barred from anyone with a police
record. There is no reason why a State may not require a purchaser of
a pistol to pass a psychiatric test. There is no reason why all
pistols should not be barred to everyone except the police.
The
leading case is United
States v. Miller, 307
U. S. 174, upholding
a federal law making criminal the shipment in interstate commerce of
a sawed-off shotgun. The law was upheld, there being no evidence that
a sawed-off shotgun had "some reasonable relationship to the
preservation or efficiency of a well regulated militia." Id., at
178. The Second Amendment, it was held, "must be interpreted and
applied" with the view of maintaining a "militia."
"The
Militia which the States were expected to maintain and train is set
in contrast with Troops which they were forbidden to keep without the
consent of Congress. The sentiment of the time strongly disfavored
standing armies; the common view was that adequate defense of country
and laws could be 151*151secured
through the Militia—civilians primarily, soldiers on
occasion." Id., at 178-179.
Critics
say that proposals like this water down the Second Amendment. Our
decisions belie that argument, for the Second Amendment, as noted,
was designed to keep alive the militia. But if watering-down is the
mood of the day, I would prefer to water down the Second rather than
the Fourth Amendment. I share with Judge Friendly a concern that the
easy extension of Terry v. Ohio, 392
U. S. 1, to
"possessory offenses" is a serious intrusion on Fourth
Amendment safeguards. "If it is to be extended to the latter at
all, this should be only where observation by the officer himself or
well authenticated information shows `that criminal activity may be
afoot.' " 436 F. 2d, at 39, quoting Terry v. Ohio,
supra, at
30.
- Provisions of the Constitution are
mutually consistent. There are no internal logical contradictions,
except that a provision of an amendment inconsistent with a previous
provision supersedes that provision.
- None of the words are without force and
effect, except those superseded by amendments, unless such
amendments are repealed. Except for the statement of purpose in
the preamble, every word was intended by the Framers to be legally
normative, and not just advisory, declaratory, aspirational, or
exhortatory. Verba intelligi ut aliquid operantur debent.
Words should be interpreted to give them some effect.
- Rights and powers are complementary.
Every right recognized by the Constitution is an immunity, that is,
a right against a positive action by government, and is equivalent
to a restriction on delegated powers. Conversely, every delegated
power is a restriction on immunities. An immunity may be expressed
either as a declaration of the right, or as a restriction on powers.
The second points out
that not only is the Second Amendment a declaration of a right, but
it is a limitation upon Congress' power under Article I, Section 8,
Clause 16:
To
provide for organizing, arming, and disciplining, the militia, and
for governing such part of them as may be employed in the service of
the United States, reserving to the states respectively, the
appointment of the officers, and the authority of training the
militia according to the discipline prescribed by Congress;
And the following
purposes stated for adopting the constitution:
insure
domestic tranquility, provide for the common defense, promote the
general welfare
One of the stated purposes of the US Constitution was to address matters of common defence--self-defence is not mentioned any where in the Constitution, and it is not explicitly stated in the Second Amendment. On the other hand, the Civic right interpretation ties the Second Amendment to the Militia clauses and Congress' power over the militia.
There is another clause
in the US Constitution which allows for the
federal government protect us from harms that we inflict upon
ourselves, harms that threaten our health and our survival.
Article
IV, Section 4:
"The
United States shall guarantee to every state in this union a
republican form of government, and shall protect each of them against
invasion; and on application of the legislature, or of the executive
(when the legislature cannot be convened) against domestic violence."
Not
only does the Constitution contradict the concept that one can wage
war against the government since the only crime mentioned in the
Constitution is precisely that (Article III, Section iii), but the
domestic violence clause of the Constitution takes it beyond mere
insurrection.
On
May 29,1787, the very first day of business at the Constitutional
Convention, the first speaker's most vehement point was the need to
have a central government strong enough to assure survival in the
face of threats both domestic and foreign. Alexander
Hamilton considered domestic
dangers "more alarming than the arms and arts of foreign
nations,"
and that the entire resources of the nation are to be made available
to deal with a condition of domestic violence. Spending – for
whatever danger was at hand – "ought to know no other bounds
than the exigencies of the nation and the resources of the
community."
In James
Madison's Notes of Debates (Ohio Univ. Press, 1984),
there is no indication that the framers intended Art. IV, Sec. 4 to
be limited to temporary insurrections and massive criminal assaults.
At the convention on August 30, 1787, a motion was made to strike out
"domestic violence" and insert in its place the term
"insurrections." That motion was defeated. They did not
want to limit the federal obligation to any particular type of event.
(Page 560 of the Notes.)
Violence was
clearly intended to mean more than just rebellions or physical
challenge to government.
The Constitution allows for
items which are detrimental to the general welfare, which firearms are, to be regulated. This addresses concerns of public safety and general welfare, which was yet another concern of the founders--they would be appalled that the Second Amendment was being used to justify not only high levels of gun violence, but to say that insurrection was constitutional, let alone patriotic.
in a shooting Saturday morning that killed two people at a mall food court where the woman worked, police said.
