The Second Amendment; Will it Get Dangerous?
What did Sotomayor say and did she get it wrong?
How quickly the opponents are going to work at limiting the Courts decision. This is the third installment of the series looking at the Second Amendment and what’s on the horizon. You can view my previous articles on this subject entitled ‘The Supreme Court Said What?” and “Does It Really Mean I Can Have a Gun?”
Heller v. District of Columbia was a monumental decision by the Supreme Court. Let me give you a little background on the case. A group of six in 2003 sued the District of Columbia for its ban on guns as it pertains to the Firearms Control Act 1975. It was named after Dick Heller who actually was turned down to carry a gun. He was also a security guard in D.C. It went through the various courts and appeals and finally made it into the Supreme Court. The law in D.C . was so strict it was actually against the law to carry a rifle from your bedroom to your living room to get ready for a hunting trip among many arcane rules. The Supreme Court took the case when the 2nd (Sotomayor) and 9th Circuit Courts had ruled differently on the interpretation of the Second Amendment as it pertains to individuals having the right to “bear arms.” Vice President Dick Cheney filed a “friend of the court” brief that went against the George Bush administrations policy on the issue.
What court cases have we seen since the ruling?
Since June of 2008 at least 60 cases have been heard in the lower courts testing the constitutionality of the existing laws. Included are rights of felons, drug addicts, illegal aliens, and violent offenders. Cases surrounding the use of machine guns, sawed-off shotguns, types of ammunition, and location to schools have been heard. So far all the existing laws have been upheld. The chief reason is this part of the Heller ruling that says:
“Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions on the commercial sale of arms.”
Mayor Michael Bloomberg has said that all the cities gun laws meet the test and should hold up in court. The NRA is still pondering going after NYC. In Illinois a real battle will be waged in the courts. The NRA lost its appeal to the 7th Circuit as its determining factor was based on the theory that Heller applied only to the Federal Government (including the District of Columbia), and not to states or their subordinate jurisdictions. Remember this argument as I will come back to this later as it relates to Sotomayor’s rulings. This ruling conflicted with the 9th Circuit Courts ruling, so expect to see more challenges out of Illinois.
In San Fransisco California a suit was filed on January 14th 2009 which was settled out of court that will allow a resident to carry a handgun in SFHA apartment building. Seems all the criminals where armed and the NRA’s challenge has made it possible for the residents to protect themselves. I believe that was the original intent of the Second Amendment.
Since the ruling in D.C. local ordinances are being passed to make it difficult to have a gun shop in D.C. or purchase ammo. In California the Legislature has taken a different approach. Instead of banning guns, they have gone after ammunition. AB 962 and AB 2062 will attempt to limit the amount of rounds you can purchase in any given month to 50 rounds. No Internet purchases or family transfers. They will use some fingerprint device to ensure compliance and require sellers to be registered with the State. I don’t know about you but I used to blow off 50 rounds just getting warmed up back on the farm. Look for more challenges in that area.
I asked several of my FB friends to send me some info on other countries that have eliminated or severely curtailed their population in carry a gun. Here is one such story from England written by Roberts Waters and supplied to me by my FB friend Theresa Flick.
You’re sound asleep when you hear a thump outside your bedroom door. Half awake, and nearly paralyzed with fear, you hear muffled whispers. At least two people have broken into your house and are moving your way. With your heart pumping, you reach down beside your bed and pick up your shotgun. You rack a shell into the chamber, then inch toward the door and open it. In the darkness, you make out two shadows. One holds something that looks like a crowbar. When the intruder brandishes it as if to strike, you raise the shotgun and fire. The blast knocks both thugs to the floor. One writhes and screams while the second man crawls to the front door and lurches outside.
As you pick up the telephone to call police, you know you’re in trouble. In your country, most guns were outlawed years before, and the few that are privately owned are so stringently regulated as to make them useless. Yours was never registered.
Police arrive and inform you that the second burglar has died. They arrest you for First Degree Murder and Illegal Possession of a Firearm. When you talk to your attorney, he tells you not to worry: authorities will probably plea the case down to manslaughter.
“What kind of sentence will I get?” you ask. “Only ten-to-twelve years,” he replies, as if that’s nothing. “Behave yourself, and you’ll be out in seven.”
The next day, the shooting is the lead story in the local newspaper. Somehow, you’re portrayed as an eccentric vigilante while the two men you shot are represented as choir boys. Their friends and relatives can’t find an unkind word to say about them. Buried deep down in the article, authorities acknowledge that both “victims” have been arrested numerous times. But the next day’s headline says it all: “Lovable Rogue Son Didn’t Deserve to Die.” The thieves have been transformed from career criminals into Robin Hood-type pranksters.
As the days wear on, the story takes wings. The national media picks it up, then the international media. The surviving burglar has become a folk hero.
Your attorney says the thief is preparing to sue you, and he’ll probably win.
The media publishes reports that your home has been burglarized several times in the past and that you’ve been critical of local police for their lack of effort in apprehending the suspects. After the last break-in, you told your neighbor that you would be prepared next time. The District Attorney uses this to allege that you were lying in wait for the burglars.
A few months later, you go to trial. The charges haven’t been reduced, as your lawyer had so confidently predicted. When you take the stand, your anger at the injustice of it all works against you. Prosecutors paint a picture of you as a mean, vengeful man. It doesn’t take long for the jury to convict you of all charges. The judge sentences you to life in prison.
This case really happened. On August 22, 1999, Tony Martin of Emneth, Norfolk, England, killed one burglar and wounded a second. In April 2000, he was convicted and is now serving a life term.
I don’t know about you, but this better not happen in our country now after the ruling by the Supreme Court. They fact this gun wasn’t registered shouldn’t have mattered! When we put victims in jail not the criminals, we live in a sick society.
From my FB friend Tim Porter, a look at Australian statistics. This article was so good I won’t paraphrase and give you full access to it here. A lot of talk goes back to what the original intent was in the creation of the Amendments. From my FB friend Theresa Flick here are some quotes to help us out. I think its pretty clear from just these few quotes.
Firearms are second only to the Constitution in importance; they are the peoples’ liberty’s teeth.
George Washington.
Arms in the hands of citizens may be used at individual discretion… in private self-defense. John Adams.
The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.
Thomas Jefferson.
What has Sonia Sotomayor said about this? Supreme Court nominee Sonia Sotomayor ruled in January 2009 that states do not have to obey the Second Amendment’s commandment that the right to keep and bear arms shall not be infringed. What??? From CBSNews.com Matt Cover:
In Maloney v. Cuomo, Sotomayor signed an opinion of the U.S. Court of Appeals for the Second Circuit that said the Second Amendment does not protect individuals from having their right to keep and bear arms restricted by state governments. The opinion said that the Second Amendment only restricted the federal government from infringing on an individual’s right to keep and bear arms. As justification for this position, the opinion cited the 1886 Supreme Court case of Presser v. Illinois.
Sotomayor, however, said that even though the Heller decision held that the right to keep and bear arms was a natural right–and therefore could not be justly denied to a law-abiding citizen by any government, federal, state or local–the Second Circuit was still bound by the 1886 case, because Heller only dealt indirectly with the issue before her court. I will have to respectfully disagree with Sotomayor as I think the Heller case made it perfectly clear! I can see that battle being waged on the Supreme Court in the near future.
“It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right,” said the opinion. Quoting Presser, the court said, “it is a limitation only upon the power of Congress and the national government, and not upon that of the state.” The Maloney v. Cuomo case involved James Maloney, who had been arrested for possessing a pair of nunchuks. New York law prohibits the possession of nunchucks, even though they are often used in martial arts training and demonstrations.
What’s next? No more shovels and pick axes? Chopsticks? This is exactly what the Chinese did to their culture to control them centuries before. It’s these little battles we need to watch as it relates to you and me protecting ourselves down the road.
In my next installment… and final, I will tie up some lose ends and state my official position on the subject. There is a battle going on in the country regarding the rights we were given 200 years ago. I hope you will take part and stay informed as there may come a day when arming yourself may be the only thing available when the police departments in your town have been decimated by budget cuts. In Sacramento this is no joke for us! We could go from 30+ patrol cars per shift down to 6! Don’t call a cop, call your neighbor who has a gun! Please forward this article to your friends to keep them up to speed on things. I plan on making the voters in the 5th District very informed once I get elected. Educated voters make it tough for Politicians to vote the party line or status quo. Time to hold those in office accountable.
The Paul Smith for Congress website is www.paulsmithforcongress.org
Paul Smith. Republican Candidate for the 5th Congressional District (Sacramento)
Mr Hogue:
Imust correct you on a crticial point. We weren’t “given” those rights 200 years ago by the Constitution – we were endowed with them by our Creator before the Constitution was ever drafted (see Heller decision for confirmation). The Bill of Rights was only created to specifiy areas where the Federal government could not go. Look at the 9th and 10th Amendments – they were included as another means of placing curbs on the Federal government.
Kirk,
Good point, semantics surely – but a good point to be made.
Using phony quotes attributed to Founding Fathers doesn’t help your Second Amendment argument. GunCite, a pro-gun outfit, classifies two of your three Founding Father quotes as “bogus.” The Washington-attributed “liberty teeth” quote and your Jefferson-attributed “bear arms” quote are fictional.
As for your Adams quote, it has been fiddled with to make it sound almost the opposite of what Adams actually said, which was this:
“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)
Hi Leif,
I try and run down every quote as best I can. I have looked up the quotes and I see them on various sites, so without going to DC and reading everything that has been written, the best I can hope for is to cross it with a few sources and move on. I have read enough surrounding information that something like these quotes would not have been out of the norm for these folks. So the accuracy looked to be spot on. I appreciate you running down a better source and posting it. One of the weaknesses of the internet is trying to sort out make-believe and reality on quotes made 200+ years ago. I am sure it won’t be the last time! Other than that, what are your thoughts on everything else?
The framers of the Second Amendment, in my opinion, did not intend to codify the right of the people as individuals to keep and carry arms, un-infringed by the federal government. The personal use of arms was simply not the subject of the amendment. Rather, the framers intended to protect the right of the people as a political community to provide their state with militia service despite any federal effort to destroy the militia system.
In the 18th century, the term “bear arms,” when used in a context that was wholly about the militia, was understood to mean “provide militia service.” The phrase, used in that way, was a common idiom in America at the time.
The “militia” meaning of the people’s right to keep and bear arms is less clear in the Second Amendment than it is in the declaration of rights approved by NewYork’s convention on ratification of the Constitution in 1788:
“That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.” (Elliot’s Debates, vol 1, p 328)
Here the term “bear arms” cannot mean simply “carry arms.” If it did, the whole provision would be saying, quite oddly, that people in general had a right to keep and carry arms but that well-regulated militias were made up of those who were actually capable of carrying arms.
Who would have had to be told that a well-regulated militiaman needed to be able to carry arms? (Certainly not Alexander Hamilton and John Jay, who between them wrote two-thirds of the Federalist Papers and who as New York convention delegates supported New York’s proposed declaration of rights.) And can’t most folks carry arms of some sort whether they’re in a well-regulated militia or not?
Surely, the meaning intended was that the people as a political society had a right to keep arms and provide militia service and that well-regulated militia service from those who were capable of such service was the proper, natural, and safe defense of a free state.
The framers of the Second Amendment no doubt had the same intent in supporting a free state’s need for a well-regulated militia.
Leif.
That’s a perspective on the 2nd Amendment I have heard before. The framers intent then was to provide the states the physical means to resist a federal government gone rogue and tyrannical – such as the one that had been kicked off the continent just a decade before.
On one path, the argument eventually concludes that National Guard contingents in the individual states are the “well regulated militias” implied by the 2nd Amendment and that personal gun ownership is not protected. That doesn’t appear to be your conclusion from your post. The trouble with the National Guard conclusion is their arms are provided by the state, not their own personal equipment.
The intent of the 2nd Amendment was that the framers noted individuals in the brand new country had their own equipment and thus could form the subject militias to be regulated by the state or local government. This regulated militia came in many flavors. From the various companies and militias that were called up and served in the Civil War to posses formed by local sheriffs to hunt down criminals in the wild west. This assumes the existence of a free citizenery agreeing (aka volunteering) to bear arms for their state versus being drafted by the state to do so unwillingly.
I commented on this in Paul’s previous post, but Sotomayor’s logic falls flat in her Maloney opinion by citing Presser vs. Illnois as precedent that 2nd Amendment rights apply only to a citizen’s relationship with the federal government not the state or local governments. Presser was all about Illnois’ (and all the states) due authority to regulate armed militias. Presser’s “private” militia formed to counter another private militia controled by manufacturing companies in the Chicago area probably formed to harrass and intimidate the local workforce into docility (aka company goons as opposed to union goons). Presser had his militia march in a Chicago parade with himself at the lead on horseback no doubt as a show of force to the opposing militia. Illnois decided enough was enough and fined him. He sued under the 2nd Amendment that his right to bear arm was infringed by the state’s action against him. SCOTUS sided with Illnois. Nothing is said about the other militia nor the apparent justification of Presser’s cause. Not because SCOTUS thought the 2nd Amendment didn’t apply at the state level, but rather the states must regulate and control armed militias. The alternative was all sorts of armed militias running about unregulated with all sorts of “warlords” with different points of view. Armed chaos.
Absolutely damn right the states have and should have the authority to prevent that Somalia type scenario in a civilized society. The majority opinion in Presser reaffirmed the 2nd Amendment right of citizens while declaring this state authority existed. The danger is the state always has the potential to becomes tyrannical thus an armed and free citizenery is neccessary. One example of an albiet well intentioned but still tyrannical state is the British example cited by Smith in this post. The example as presented is madness on the other extreme.
What bothers me the most about Sotomayor is she appears to have cherry picked the parts of Presser that supported her contention the 2nd Amendment doesn’t apply to the states. Either that or she’s a lazy jurist that doesn’t fully read even summaries of past court opinions. Neither speaks well to her qualifications to sit on the Supreme Court. We all have intriguing life stories of one form or another. Those do not qualify us for important positions such as SCOTUS as her defenders are claiming for her.
It appears to me that the Supreme Court in Presser made it quite clear in these words that the Second Amendment is not enforeceable against the states:
“But a conclusive answer to the contention that this amendment [the Second Amendment] prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.”
In addition, the Supreme Court in Presser quoted from its decision in U.S. v. Cruikshank : “The second amendment 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.”
The Presser decision makes a lot of sense if, as I do, you believe that the framers of the Second Amendment intended it to protect the right of the people of each state to continue a well-regulated militia system, not to protect an un-infringable right to carry arms for personal use.
I have a new article on the McDonald v. Chicago case coming out today. I would appreciate your comments.