Civic right interpretation of the Second Amendment?

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.

Douglas' explanation makes sense in relation to three rules of Constitutionalinterpretation:

•  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.

Cheering on the PIIGS in Euro 2012

I know this was taken BEFORE the Italy-Germany match, but...

While the starting mood of Euro 2012 was marred by accusations of racism from the hosts Ukraine and Poland, I found my behaviour was guided more by wanting to cheer on the PIIGS (Portugal, Ireland, Italy, Greece and Spain), the countries being hit hard by the Euro crisis.

When I heard it was Germany v. Greece--I just wanted to Greeks to kick Germany's arse so badly for all the austerity measures being foisted on the PIIGS. In fact, contrary to normal nature, I was cheering on the PIIGS whenever they went up against Germany.

Ultimately, it was Spain who beat Italy to gain the title while I would have preferred to see Germany duking it out with a member of the PIIGS for the title, but at least it was a member of the PIIGS who won!

One of my friends, who is an economist made sense of all this since he realised that subconsciously I was cheering on the underdogs in the economic Euro crisis. Although, BBC's World Have Your Say delved into this issue as well and I have to admit that yes, it is far more than just football. So, maybe any tinge of Euroskepticism is illusory as I know full well that the Economic Euro also has to succeed for the European Union and Economy to thrive. Deep down, I want to see the Euro thrive.

This reminds me of someone who was a former frequent commenter

Kinda looks like him too!



Don't miss him a bit.

Abuse of By-back Program

The NRA is fond of promoting the insanity and poor critical thinking of the phrase "guns don't kill people, people kill people."
A more factually correct statement summing up the causal and correlational relationship between firearms and people killing people is that people using guns kill people. Sometimes the people they kill are other people, sometimes the people they kill are themselves, and sometimes they only wound, trheaten, harass or intimidate people.
The NRA tries to pretend that firearms are not lethal weapons; that is inherently dishonest.  The NRA makes money for gun manufacturers by promoting a violent gun culture, one which advocates for gun violence in order to sell more guns for the gun manufacturers they represent.  They promote laws which make it easier, not more difficult, for guns to be sold that go directly and indirectly into the hands of criminals and terrorists, because their goal is to sell more guns.
That they are not primarily focused on legal gun use, but rather on maiximizing gun sales is evident in the NRA having someone on their board like Ted Nugent, a chronic advocate for violence against individuals with whom he disagrees, and a serial violator of laws.  That they intend to promote a violent gun culture where people take the law into their own hands is evident in the material and positions they take, as evidenced by their spokespeople and their statements.
Police should know what the quality is of the guns they purchase in these buybacks.  The situation should be corrected so that an appropriate minimum and maximum are established depending on the state and quality of the firearm in these purchases to prevent this kind of abuse.  But it is also a statement of their lack of character that this group would act this way; it is an indication of the contempt for the boundaries between legal and illegal firearms that this group would undermine an effort by the police to get illegal guns off the streets.

From MSNBC.com :

Chicago gun buyback unknowingly raises money for NRA kids' gun camp

By Isolde Raftery, msnbc.com

Chicago’s firearm buyback program, titled “Don’t kill a dream, save a life,” aims to get dangerous weapons off the street. But a pro-gun rights group gleefully says it used the program to turn in “non-firing junk” to raise money for a National Rifle Association youth shooting camp.
Guns Save Life, based in Champaign, Ill., three hours south of Chicago, turned in dozens of guns and BB guns it had collected – “rusty scrap metal,” the group called the load – taking home $6,240.
Of the 5,500 guns turned in on June 23, 60 came from Guns Save Life.
The Chicago Police Department program pays $100 for every gun and $10 every BB gun, air gun or replica, no questions asked. The money is given in the form of a Visa debit card.
“We are redirecting funds from people who would work against the private ownership of firearms to help introduce the next generation to shooting safely and responsibly,” John Boch, head of Guns Save Life, told the Chicago Sun-Times.
Boch said the money will go toward paying for ammunition for the youth camp.
Police spokeswoman Melissa Stratton was not amused, according to the Sun-Times.
“It’s unfortunate that this group is abusing a program intended to increase the safety of our communities,” Stratton said.

Classic Post: How to lie with misquotations!

Note:  I've gotta repost this since the nonsense that the Miller decision focused on the nature of the firearm rather than the real question--did it contribute to the national defence in regard to maintaining a "militia"--seems to be repeated in circles where one would expect more accuracy

From The Future of Gun Control by Alex Altman published in Time 26 June 2008

The U.S. Supreme Court's 5-4 decision overturning Washington, D.C.'s handgun ban is the biggest gun rights ruling since the Second Amendment was ratified in 1791. The Court had not waded into this divisive issue since 1939, when it declared, "We cannot say that the Second Amendment guarantees the right to keep and bear" arms. But on Thursday the Court broke its silence to do just that, ruling for the first time that the Constitution confers an individual right to gun ownership beyond providing for "a well regulated Militia," as the amendment states. The Constitution does not permit "the absolute prohibition of handguns held and used for self-defense in the home," Justice Antonin Scalia, the court's arch-conservative, wrote in the majority opinion.

The actual quote from US v. Miller is:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

I have already pointed out, the Miller decision incorporated by reference, the decision of
Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840). Aymette makes the following point.

To make this view of the case still more clear, we may remark, that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides, "that no citizen of this State shall be compelled to bear arms, provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive

.I think that quote from Aymette puts paid to any attempt to try to say that Miller related to private uses of firearms.

Or as Justice Douglas, who was on the Court at the Time of Miller, said in ADAMS v. WILLIAMS, 407 U.S. 143 (1972)?

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 [407 U.S. 143, 151] secured 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.

Before you come up with any silly comment about Douglas not understanding Miller, keep in mind that while he was a member of the court even if he did not take part in the oral argument.

I would assume that he would have been privy to the discussions surrounding the Miller decision--Don't you??????

Anyway, taking a half-quotation, out of context, definitely changes the meaning from what was originally intended.

Guns are the best method of self-defence????

I'm getting into this since some bozo wanted to make me look like a hypocrite since I had a PA Carry permit way back when--

"you gonna deny others the same privilege?"

Naw, spend time in the Army, learn rules of engagement among other skills useful if you aren't going to be a danger to yourself.

And others.

Seriously, there are too many drawbacks to using a gun, especially a handgun, for self-defence. First off, any weapon which can be used against you to your detriment is not a good choice.

And before you make any stupid "accidental discharge comments" see the Risk Factor cross post from my blog

But, despite whatcha want me to think--you have yet to show me that you would be safer walking down the street packing heat.

And if YOU are, I want to be in the next county over.

Classic Post: The Second Amendment is as statist as you can get.

The Americans inherited the concept of Civic republicanism from seventeenth century English "Commonwealthmen". This concept was a primary ideological value driving the American Revolution and the framing of the Constitution. Historian Gordon Wood writes that "[r]epublicanism meant more for Americans than simply the elimination of a king and the institution of an elective system. This concept added a moral dimension and utopian aspect to the political separation from England--an aspect that involved the very character of their society."

The classical liberal tradition gave the independence movement its values and concepts with which we have grown familiar. The most important of which was a civic and patriot ideal in which the personality was founded in property, perfected in citizenship but perpetually threatened by corruption; government figuring paradoxically as the principle source of corruption and operating through such means as patronage,faction, standing armies (as opposed to the ideal of the militia), established churches (opposed to the Puritan and deist modes of American religion) and the promotion of a monied interest .

The founders believed in the Republic and that was how they wanted the newly formed United States to function. Republicanism made high moral demands on its citizens, in addition to entrusting them with the defense of their communities. For example, a citizen of a republic was expected to subordinate self-interest to the overarching good of the community.

The public good was, in fact, the lodestar for a republican government. Citizen participation in civic affairs was absolutely essential to a republican government. It was understood that there was a moral obligation obligation for citizen participation in government. This moral obligation was described in the literature of the times as public or civic virtue.

One of the extreme dislikes of civic republican theorists was the professional standing army. A professional standing army was seen as another instrument that could be used by a tyrannical government to subjugate its citizens. The institution of the militia served to eliminate the possibility of a coup by ambitious military leaders (e.g., Julius Caesar). The presence of an armed citizenry also served as a visible reminder to the executive of the ability of the people to remove the magistrate by force if necessary.

Most importantly, the militia served as an organ through which republican virtues could be transmitted to generations of new citizens. Because its membership was universal, there was little danger the militia itself could be employed in the service of tyranny, since its interests were considered identical to those of the community from which the militia drew its members. Furthermore, the local nature of the militia assured that its uses would be defensive. A professional army, on the other hand, tied geographically to no one place, might constantly agitate for a policy of expansion and military adventurism.

The North American colonists relied on the militia to provide essential policing and defensive functions, and most colonies required its free citizens to be enrolled in county militias and to assemble and drill regularly. Don Higginbotham noted that the "very nature [of] the militia system reinforced the provincialism that was a salient characteristic of the colonial period."However, the militia's relative lack of social stratification, especially when compared with the rather severe class demarcations existing at that time in Europe, inspired spirited rhetoric among both Americans and European intellectuals. Even then, it seems, the militia system was seen as an important civic institution, serving political, and not just military, ends.

The problem was that the Militia system was not adequate for a proper long term national defence. Given that Adam Smith had written that the militia was not a proper defence force for a developed economy in Wealth of Nations in addition to Washington's (Von Steuben's?) turning the Continental Forces into a standing army, one could argue that the militia system was outdated at the time of the Revolution, let alone the drafting of the Constitution. On the other hand, republican values admired the militia system not just for defence, but the instilling of civic virtues.

The Constitution tried to compromise between the two systems. There was the fear that the Federal Standing Army would eventually replace the militia system--this is what led to the Second Amendment guarantee of the right to keep and bear arms for the purpose of a well regulated militia. Unfortunately, the importance of the militia to the interpretation of the Second Amendment has been subjected to revisionist history which tries to remove the citizen's military duty, but that is a highly important aspect to understanding the concept of what a well regulated militia implied to the founders.

Resources:

• Tom W. Bell, The Third Amendment: Forgotten but Not Gone, 2 William & Mary Bill of Rights J. 117 (1993).
• Willaim S. Fields and David T. Hardy, The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History, 35 Am. J. Legal Hist. 393 (1991).
• Western, J.R.: English Militia in the Eighteenth Century: The Story of a Political Issue, 1660-1802 (ISBN: 978-0751201406)
• Beckett, Ian: Britain's Part-Time Soldiers: The Amateur Military Tradition 1558-1945 (ISBN: 978-1848843950)
• Cress, Lawrence Delbert Cress. Citizens in Arms: The Army and the Militia in American Society to the War of 1812
• Cunliffe, Marcus, Soldiers and Civilians: The Martial Spirit in America, 1775-1865
• Denning, Brannon P., Palladium of Liberty? Causes and Consequences of the Federalization of State Militias in the Twentieth Century, 21 Okla. City U. L. Rev. 191-245 (1996)
• Mahon, John K, The History of the Militia and the National Guard
• Millett, Allan R. & Maslowski, Peter, For The Common Defense: A Military History of the United States of America: Revised Edition
• Riker, William H, Soldiers of the States
• One of the few Law Review articles discussing the historical militia is "The Militia Clause of the Constitution" by Frederick Wiener 54 Harvard Law Review 181(1940).
• See also Adam Smith's Wealth of Nations, Book V, Chapter I (Of the Expences of the Sovereign or Commonwealth), PART I: 16-27 (Of the Expence of Defence) for a critique of the miltia system from 1775.
• Also, David Chandler & Ian Beckett, The Oxford Illustrated History of the British Army (ISBN: 978-0198691785) has a section on the Amateur Military Tradition (I.E., the Militia).
• Weatherup, Roy, Standing Armies And Armed Citizens: An Historical Analysis of The Second Amendment, 2 Hastings Const. L.Q. 961-1001 (1975)
• Schwoerer, Lois G. "No Standing Armies!" The Antiarmy Ideology in Seventeenth-Century England
• Whisker, James Biser The Citizen-Soldier under Federal and State Law, 94 W. Va. L. Rev. 947 (1991-1992)
• Cooper, Jerry The Rise of the National Guard: The Evolution of the American Militia, 1865-1920, ISBN: 978-0803264281
• Bogus, Carl T. THE HISTORY AND POLITICS OF SECOND AMENDMENT SCHOLARSHIP: A PRIMER, Chicago-Kent Law Review, Symposium on the Second Amendment, vol. 76, 2000: 3S
• Spitzer, Robert J. LOST AND FOUND: RESEARCHING THE SECOND AMENDMENT, Chicago-Kent Law Review,Symposium on the Second Amendment vol. 76, 2000: 349