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How the gun lobby has stolen the Second Amendment

In a recent Sun article on guns entitled “Foes of gun ownership perpetuate many myths (7/29/01)” Gregory Kane assails, yet again, the “lefty anti-gun nuts” who disagree with what Kane assures his audience is the Second Amendment’s (SA) guarantee that individuals can own firearms. What’s Kane’s argument? The Revolutionary slave-owner Patrick Henry believed it to be the case. And, what do people who disagree with Kane argue? He doesn’t bother to say.

Kane’s style is similar to Rush Limbaugh’s. With the Sun’s tacit approval, he routinely claims to be refuting the arguments that others are making—but their views seldom get mentioned. At the same time, while the Sun is generally in favor of gun control, they rarely mention the Constitutional arguments favoring it in their editorials or Op-Eds. As a result, the fact that the judicial history on guns for the last sixty years has overwhelmingly served the interests favoring sensible gun control often comes as a surprise to most of their readers.

The Two Arguments

The Gun Lobby’s view is that the SA guarantees an unlimited right for individuals to own firearms. (Many who hold this view also claim the right to own any conceivable weapon mankind can manufacture.) Meanwhile, the SA has consistently been judged to be a collective right. The “collective right” interpretation holds that the Founding Fathers feared that an overly strong government would menace the people. To guard against that happening, the SA is designed to require that a well-regulated Militia with precise scope and limitations be handy to check the Feds.

Both sides are concerned with the landmark 1939 Supreme Court (SCOTUS) decision on US v. Miller. Modern jurisprudence on guns stems from this case. It is also the only case where the SA has been specifically examined by SCOTUS. US v. Miller heard the case of Jack Miller and friends, who were convicted of violating a 1934 law forbidding the transport of sawed-off shotguns across state lines. In Miller, Justice McReynolds, writing for the majority, rejected the argument that a sawed-off shotgun bore any resemblance to the weaponry of a Militia.

In their majority opinion, the Miller Court examined how a Militia is referenced by the US Constitution before the SA appears. It also considered the first half of the SA; i.e., “A well-regulated Militia being necessary for a Free State...”

This is significant because the Gun Lobby simply dismisses these Constitutional references to a Militia. They focus on the latter half of the SA exclusively; i.e., “...the right to bear and keep arms shall not be infringed.”

Generally speaking, where appellate courts have examined the entire Constitution they have judged the SA to be a collective right. Where they have disregarded these points to focus exclusively on the sentence fragment that is the second half of the SA (as in US v. Emerson, mentioned later), the SA has naturally been affirmed to be an individual right.

The Meaning of US v. Miller

As Chief Justice McReynolds wrote in Miller:

“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. The Constitution as originally adopted granted to the Congress power—‘To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 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.’ With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” (emphasis provided)

Thus the Miller Court rejected Miller’s claim. Note how the last pair of sentences fit with the rest of the paragraph. The paragraph begins with the Constitution’s definition of a Militia. The concluding statements say that the Second Amendment must be interpreted with the Constitution’s sharply limited scope of a Militia in mind. (In other words, by defining what it is, what it can do and how it is authorized, they are not asserting that individuals by themselves qualify as a Militia.) Numerous legal scholars have said this paragraph clearly signifies the Miller Court is judging the SA to be a collective right.

Needless to say, the Gun Lobby dismisses these arguments with extreme agitation. First, they argue that Miller only concerns sawed-off shotguns. (Still, there’s that paragraph.) Also, because Miller and the rest failed to make an appearance before SCOTUS, they claim the decision has no credibility. (Although nothing in the decision suggests that.) They also reject the argument that the Constitution is limiting a Militia’s scope by pointing out that later on the Constitution mentions that any “able-bodied men” are entitled to join a Militia. (Yes, but the Militia has already been defined.) They also underplay the importance of the paragraph above.

Meanwhile, eight Federal Courts have followed US v. Miller and have emphatically stated that US v. Millerdoesn’t merely apply to sawed-off shotguns. They also affirm that US v. Miller intends for the SA to be judged as a collective right. Some notable quotes:

  • Quilici vs. Village of Morton Grove (1982, Seventh Circuit): “...[I]t seems clear that the right to bear arms is inextricably connected to the preservation of a militia. Under the controlling authority of [US v. Miller], we conclude the right to keep and bear handguns is not guaranteed by the Second Amendment.”
  • °Hickman v. City of Los Angeles (1996, Ninth Circuit): “We follow our sister circuits in holding that the Second Amendment is a right held by the states and does not protect the possession of a weapon by a private citizen.”

Scholarly Arguments

The Quilici vs. Village of Morton Grove court also ruled that scholarly arguments based on what the Founding Fathers have written have “no legal basis” when determining what rights are conferred by the SA. It isn’t hard to see why. First, why would one Founding Father be more relevant than another? There are no criteria for that judgment. Second, there are always questions about whether the person quoted was speaking about individuals who are members of the Constitutionally-defined Militia or not. Finally, if Patrick Henry or some other yahoo from that era believed something, it doesn’t necessarily bind us to that thinking.

What’s Coming

Looming on the horizon is the expectation that the SCOTUS will take up US v. Emerson, which was decided in Federal Court (1999). The Gun Lobby is eagerly anticipating that the SCOTUS will take up the case in order to overturn US v. Miller.

Emerson is essentially a slam-dunk for the Gun Lobby. In it, Timothy Joe Emerson was cited for possession of a firearm after receiving a restraining order for allegedly threatening on the phont to kill his wife’s lover. He claimed that his rights were violated by the restraining order. It reached a Federal Court, which toed the Gun Lobby’s line by dismissing Constitutional references to a Militia while focusing on the second half of the SA.

Many people are waiting for the SCOTUS to review Emerson. Recall that the current SCOTUS also penned the decision in Bush v. Gore, which installed George Bush president. From a judicial standpoint, Bush v. Gore, remains the most reviled case since Dred Scott. A Supreme Court capable of judicial activism of that recent magnitude is capable of anything.

While the Emerson showdown looms, Attorney General John Ashcroft is working aggressively on behalf of the Gun Lobby. He has announced that the Justice Department believes the Second Amendment to be an individual right, reversing decades of policy. He has also brazenly gutted the Brady Bill by having law enforcement agencies destroy gun-purchasing records after only one day.

Conclusion

The mainstream media continue to under-report the fact that nine appellate courts have, since 1939, judged the SA to be a collective right. At the same time, the Gun Lobby is mounting a serious and aggressive propaganda campaign to persuade people that the SA guarantees individuals the right to own whatever weaponry they choose. With guns being used in the commission of 3,000 serious crimes a day in the US, the arguments favoring a collective right interpretation of the SA deserves more attention by the corporate media than they are receiving.

Scott Loughrey

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