"A well regulated Militia...."
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.
That’s what the Second Amendment says.
The National Rifle Association says that creates a limitless constitutional right for people to have and carry guns. In surfing its website I found a citation (legal reference) to a United States Circuit Court decision:
In the last few decades, courts and commentators have offered what may fairly be characterized as three different basic interpretations of the Second Amendment. The first is that the Second Amendment does not apply to individuals; rather, it merely recognizes the right of a state to arm its militia. This "states' rights" or "collective rights" interpretation of the Second Amendment has been embraced by several of our sister circuits....
Proponents of the next model admit that the Second Amendment recognizes some limited species of individual right. However,this supposedly "individual" right to bear arms can only be exercised by members of a functioning, organized state militia who bear the arms while and as a part of actively participating in the organized militia's activities. The "individual" right to keep arms only applies to members of such a militia, and then only if the federal and state governments fail to provide the firearms necessary for such militia service. At present,virtually the only such organized and actively functioning militia is the National Guard, and this has been the case for many years. Currently, the federal government provides the necessary implements of warfare, including firearms, to the National Guard, and this likewise has long been the case. Thus,under this model, the Second Amendment poses no obstacle to the wholesale disarmament of the American people. A number of our sister circuits have accepted this model, sometimes referred to by commentators as the sophisticated collective rights model....
The third model is simply that the Second Amendment recognizes the right of individuals to keep and bear arms.... None of our sister circuits has subscribed to this model, known by commentators as the individual rights model or the standard model. The individual rights view has enjoyed considerable academic endorsement, especially in the last two decades.
U.S. v. EMERSON, 270 F.3d 203, 218-220 (5th Cir. 2001). (I’ve taken out footnotes because you can't get to them. If you want to read the decision go to findlaw.com and drill down to the case. Same for the Supreme Court decision quoted below.)
The Fifth Circuit decided that the third “model” was the right interpretation of the Second Amendment. They went on to describe why in the rest of the opinion. The Fifth Circuit, to my mind, ignored the only U.S. Supreme Court decision on the issue:
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." (emphasis added).
United States v. Miller, 307 U.S. 174,59 S.Ct. 816, 818; 83 L.Ed. 1206 (1939).
The Defendant in this case was accused of violating a federal statute that barred having a shotgun with a barrel under eighteen inches. He had argued that this restriction violated his constitutional right to have such a gun. The quoted language above says, to me, that the right to bear arms is limited to those that are necessary to have a “well regulated militia.” The Second Amendment allows people to have firearms that a militia could need to be effective. I just wish the Supreme Court would come out and say it.
For the odd reader that is a lawyer and agrees with the Fifth Circuit’s constitutional analysis, let me know where I went wrong.
I will soon offer a practical argument that we should “just say no to guns," if I get around to writing it.
9 comments:
I hate to be the odd man out here, but I believe our forefathers envisioned the third "model" to be correct (as did the 5th circuit court)
I'm from a place where responsible gun ownership is not only prevelant, but needed.
"After they pry my cold dead fingers from the trigger..."
I put that in for dramatical purposes only
Dave, I just don't get the point. Why no guns? And if no guns, how would we get from here to there?
We have draconian gun control in New York, but my town (Rochester) is loaded (no pun intended) with illegal pistols of every caliber. Guys, and some women and children) are dying all the time. The cops don't have power to search people who may be carrying, and I'm not sure they're interested in having the occasional gun battle that would result if they did.
Yet it's very rare for a legal weapon to be used in a crime - maybe 100-to-1 versus the illegal weapons.
My guess is that a war on guns would be about as effective as the war on drugs. Tell me why we should try one.
Ryan and LF,
The harder part is just starting.
That part is the second installment as promised in the post.
As some presage, I think that is a word, I grew up with guns. I'll leave some of the story for the post; but, I'm a very good shot
Most of my friends and family have guns. One of my friends has to carry one. As you might guess, he is a policeman.
I'm going to take a bit of time writing the post because I want it to be accurate from a factual point a view and persuasive in selling my conclusion.
Ryan, I don't think you are the odd man out for the most part.
LF, I think you'd be surprised at the number of cops who would like the number of firearms floating around now to be reduced to reduce the likelihood of the gun battles they encounter. Again, more when I write this thing.
The pressure is on.
Before I give my views on the death penalty, how do you guys weigh in?
I have blogged on this before--and have some research--but I am using a borrowed computer. So I will bore everyone some other date.
But I agree with Ryan that the 5th Cirucit has it close to right. And the Supreme Court knows (beyond the political problem) that they can not tackle the issue head on.
If the second amendment only protects the right to have the federally organized, operated, funded and armed national gurard then it is meaningless.
At the time the constitution was drafted there was, of course, no such thing as the federally dominated national guard. In fact, the state milita was a loosely organized group of all male citizens--who would be called in when there were needs--such as Indian wars.
Thus it was necessary that every able bodied man be armed in the state in the event they were called up.
As much ridiculed as it is--the idea that an armed citizenry is necessary to thwart federal tyranny was recognized in the thought and writing at the time.
It may seem ludicrous that this would have any relevance today. But modern instances exist. For example Sarajevo--a cosmopolitan city--hosted the winter Olymics--fell apart into anarchy and competing factions. It is type of situation where the citizenry does need arms.
So, if the second amendment (and as you know there is an assumption that it does) has meaning--it is that the citizenry's right to be armed cannot be abridged--though (as the Suprme Court has made clear) it can be regulated.
~Becky
Dave, sorry to post off topic--but saw your comment on competing moral imperatives (or fundamental rights--however you want to analyze the issue) in abortion. My positon is that in this case the right to life always trumps the right to privacy. On any scale (and for a constitional analyis can use the death penalty cases)--that always wins.
~Becky
Becky,
Thanks for your comments. On the Second Amendment, there is of course a presumption of meaning but I don't think that requires that the third model be chosen.
I agree that the first model doesn't work in practice. It allows the fox to guard the chickens. But, the second model which links the right to bear arms to the need to security against outsiders and the government itself if it behaves badly makes sense to me; and, I think it is the analysis implicit in Miller.
The second model also fits historically. I have read that something less than a majority of people had guns in the late eighteenth century.
Thus, I don't think that it follows that "...it was necessary that every able bodied man be armed in the state in the event they were called up." I don't think it was even possible.
Having read what I just wrote, I am reminded about the problems lawyers create. The solution to the interpretation problem is found in what the Supreme Court has done over the years, avoid the issue head-on, and allow rationally based regulation of the "right."
I'll respond to your privacy points over on your blog so as to not bore Ryan and LF.
You would be surprised at the things that I don't find boring.
"This year will go down in history! For the first time, a civilized nation has full gun registration! Our streets will be safer, our police more efficient, and the world will follow our lead into the future!" --Adolf Hitler
I don't want to risk sounding like a backwards boy from the mountains, but what the hell...
I suppose I don't mind if everyone else gives up thier weapons. I will keep mine. Perhaps that is ignorant? I don't ever forsee the day when I will need to protect myself from my own government, or an outside army on American Soil. I'm also not very good at seeing into the future or predicting future events. I keep my bases covered.
You can probably guess where I stand on the death penalty. The most important thing - this is your blog. It does not matter where I stand on the issue. I enjoy other points of view, which is why I read everything I can read. Blog on Dave!
Dave, it took me awhile to get back to these comments.
I'm against the death penalty. I was for it, and one morning, when I got out of bed, I said to myself "The death penalty is wrong." Where the hell did that come from?
On reflecting, I concluded that it's wrong for any person or entity to take a life based on a "reason" - a law, for example.
That simple crossing of a border, the idea that it's OK to take a life for a reason, opens the door for people or entities who feel strongly about "their reasons".
Let's just forget about debating reasons. It's no big deal to just put bad people where they can't do any more harm or enjoy themselves.
Incidentally, I don't like killing humans in any way...war, law enforcement, family disputes,etc. But I recognize that there are some instances when killing is the only way to stop further violence.
The only place where I vary from this position is in respect to my own life. There could be a situation where I would take it before some awful disease has completed its work.
I have to say that I oppose the death penalty, if only because the courts (and juries) are too often wrong when they convict people. In Canada, we adopted the principle that it was better to let 99 guilty men live than kill one innocent man.
Further, I see proponents of the death penalty as seeking revenge, by proxy, not justice. My post on it is linked here.
http://letters-i-wish-id-sent.com/?p=108
Post a Comment