How Many More?

New Rule #16: Unless you are truly are a psychic, in touch with the dead, You must stop telling me what the Framers of the constitution meant until you read what they wrote (and this includes the reactionary Justices on the USSC.)

In the wake of yet another handgun related tragedy, the gun lobby's sycophants (FOX News, et al.) are already marshalling their forces to stall and/or stop any meaningful discussion of gun control. I would understand this better if they just came out and said "Our pee pees are tiny and guns are our substitute" or. "I am a borderline psychopath who carries a gun hoping to be able to justify shooting someone or something."

I am specifically excluding those whose statement would be, "I am a hunter and I eat what I shoot", because sometimes Bambi just has to die. Pheasant, venison, squirrel, rabbit, elk, moose, ducks - all game animals, all tasty, and damned few ever killed with a handgun! Most hunters are true sportsmen who are as concerned with conservation and management as the EPA. A hunter who carries a handgun is probably only going to use it to administer the coup de grace to a wounded animal.

The argument put forward by the gun lobby, however, somehow would have us believe that any effort to control or eliminate hand guns would be attack on hunters. Outright crap. If I asked the average real hunter/sportsman if he'd give up a handgun (keep the shotgun and long gun, excluding rapid fire assault weapons) to reduce the over 55,000 gun related deaths annually by even 25%, I would guess that would be acceptable to most, but not to the NRA.

The worst part of their argument is the Second Amendment to the US constitution which says:

"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." Most of the Second Amendment debate has been related to the meaning of the prefatory clause "a well regulated militia being necessary..... " The writings of both Madison and Hamilton in The Federalist leave little doubt about what they thought about what a well regulated militia or its necessity, meant.

Madison: "The power of regulating and calling forth the militia has been already sufficiently vindicated and explained."

Modern scholars like McAffee and Quinlan have stated that James Madison "did not invent the right to keep and bear arms when he drafted the Second Amendment; the right was pre-existing at both common law and in the early state constitutions." In contrast, historian Jack Rakove suggests that Madison's intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the state militias would not be disarmed. we may never know precisely what Madison believed, but there is little difficulty understanding Alexander Hamilton's position.

Hamilton: Federalist 24

"Previous to the Revolution, and ever since the peace, there has been a constant necessity for keeping small garrisons on our Western frontier. No person can doubt that these will continue to be indispensable, if it should only be against the ravages and depredations of the Indians. These garrisons must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. ......The latter resource of permanent corps in the pay of the government amounts to a standing army in time of peace; a small one, indeed, but not the less real for being small. Here is a simple view of the subject, that shows us at once the impropriety of a constitutional interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence of the legislature."

Federalist 29

"The power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy."

"It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense....." "This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "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."

"If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force."

"The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it.".... "This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."

"What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular states are to have the sole and exclusive appointment of the officers?"

These descriptions and elaborations upon the nature of the meaning of "Militia" are unambiguous, and describe nothing quite so clearly as the National Guard. There is nothing here which implies "Give every yahoo a gun," and even if there were, in the relevant time frame, the thought of multiple shot rapid fire weapons was non-existent.

How do we know what they intended?" Fortunately they put it in writing during the first Congress. On May 8, 1792, Congress passed "[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States" requiring: Each and every free able-bodied white male citizen of the respective States.....shall severally and respectively be enrolled in the militia...[and] every citizen so enrolled, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack." Sound like handguns and assault rifles to you? Me neither. At every turn, the concept of armed citizens is expressly stated as a buttress against external threats to the state or the nation, not for use against one another.

One defense of the "everybody needs a gun" school of thought comes from the English unwritten constitution and Bill of Rights: The statement in the English Bill of Rights concerning the right to bear arms is often quoted only in the passage where it is written and not in its full context. In its full context it is clear that the bill was asserting the right of Protestant citizens not to be disarmed by the King without the consent of Parliament and was merely restoring rights to Protestants that the previous King briefly and unlawfully had removed. The English Bill of Rights includes the proviso that arms must be as "allowed by law." This has been the case before and after the passage of the Bill. While it did not override earlier restrictions on the ownership of guns for hunting, it was written to preserve the hunting rights of the landed aristocracy and is subject to the parliamentary right to implicitly or explicitly repeal earlier enactments. Remember who had rights in England during this time, when less than 10% of Englishmen could even cast a ballot! Any implication that we were simply furthering a pre-existing English concept that every man should be armed is fatuous at best and sheer stupidity at worst.

As previously shown, the "prefatory clause" "A well regulated Militia, etc..." has been the source of most debate and analysis regarding the Second Amendment. In the latter half of the 20th century there was much debate over whether the Second Amendment protected an "individual right"' or a "collective right." The debate centered on whether the prefatory clause declared the amendment’s only purpose or merely announced a purpose to introduce the operative clause (“the right of the People to keep and bear arms shall not be infringed”).

Three basic (models, for want of a better word) were developed by various judicial bodies to interpret the Second Amendment:

1: The first, known as the "states' rights" or "collective rights" model, was that the Second Amendment did not apply to individuals; rather, it recognized the right of a state to arm its militia. (this of course would infer no federal mandate for all citizens to be armed, or limit the states in prohibition thereof)
2: The second, known as the "sophisticated collective rights model", held that the Second Amendment recognized some limited individual right. However, this individual right could only be exercised by members of a functioning, organized state militia while actively participating in the organized militia’s activities.
3 : The third, known as the "standard model", was that the Second Amendment recognized the personal right of individuals to keep and bear arms.

Under both of the collective rights models(1 & 2) , the opening phrase was considered essential as a pre-condition for the main clause. These interpretations held that this was a grammar structure that was common during that era and that this grammar dictated that the Second Amendment protected a collective right to firearms to the extent necessary for militia duty.

Under the standard model (#3) , the opening phrase was believed to be prefatory or amplifying to the operative clause. The opening phrase was meant as a non-exclusive example—one of many reasons for the amendment. This interpretation was consistent with the position that the Second Amendment protects an individual right.

The question of a collective rights versus an individual right was resolved (as of now) with the 2001 Fifth Circuit ruling in United States v. Emerson, in the 2008 Supreme Court ruling in District of Columbia v. Heller, and in the 2010 Supreme Court ruling in McDonald v. Chicago. All of those rulings upheld the individual rights model when interpreting the Second Amendment. In Heller, the Supreme Court upheld the Second Amendment as protecting an individual right.

So, what were these cases and exactly what was really "decided?" In chronological order (since I am not the brightest guy around, I'll keep the legalese simple as possible)

United States v Emerson (2001) : The Texas District appellate court found that a mentally unstable man who violated a restraining order after threatening to harm his wife and kill her friend could not be prosecuted for buying a pistol. There were several grounds given by the government, including firearms trafficking (he bought it elsewhere). The decision related to the Second amendment was overturned by the appellate court using the third interpretation, apparently deciding that notwithstanding all the concerns for the e-wife's safety, Emerson had the right to own the gun. (we never find out if he eventually shot her, himself, or anyone else!

Even while upholding Emerson's appeal, the majority opinion also stated:

"Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country.   Indeed, Emerson does not contend, and the district court did not hold, otherwise.   As we have previously noted, it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms. (Consider this statement re: James Holmes and others recently in the news.

Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), is a decision by the United States Court of Appeals for the Ninth Circuit holding that the Second Amendment to the United States Constitution does not guarantee individuals the right to bear arms. The case involved a challenge to the Constitutionality of the Roberti-Roos Assault Weapons Control Act (AWCA); (signed into law, by the way by then Ca governor, Ronald Reagan!!) California legislation banned the manufacture, sale, transportation, or importation of specified semi-automatic firearms. The plaintiffs alleged that various provisions of the AWCA infringed upon their constitutionally guaranteed right to keep and bear arms as individuals.

Judge Stephen R. Reinhardt wrote the opinion of the court. The court engaged in an extensive analysis of the history of the Second Amendment and its attendant case law, and it ultimately determined that the Second Amendment does not guarantee individuals the right to keep and bear arms. Instead, the court concluded that the Second Amendment provides "collective" rights, which is limited to the arming of state militia. The U.S. Supreme Court denied review. So, as of 2002, the Supremes refused to hear a case which basically took the "collective right" point of view and allowed assault weapon bans.!

District of Columbia v. Heller, 554 U.S. 570 (2008), was a landmark case in which the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual's right to possess a firearm for traditionally lawful purposes, such as self-defense within the home, in federal enclaves (like Washington, D.C.). The decision did not address the question of whether the Second Amendment extends beyond federal enclaves to the states. Unfortunately, the decision also didn't give any hints as to how to separate those with "traditionally lawful" intent, from scumbags who want to rob, mug, rape and murder.

Justice Antonin Scalia: . "Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people”. (or so he said)

Justice John Paul Stevens: writing for the 4 dissenters:
"When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated. "

It should be obvious that there is significant disagreement within the Court on the issue, and the NRA got its way by 1 vote. Of course that's the way USSC works, but the issues may (one hopes) be revisited in time. The principle was extended to the states in McDonald v. Chicago, 561 US 3025 (2010), another a landmark (5/4) decision of the Supreme Court of the United States that determined whether the Second Amendment applies to the individual states. The Court held that the right of an individual to "keep and bear arms" protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states. The decision cleared up the uncertainty left in the wake of District of Columbia v. Heller as to the scope of gun rights in regard to the states. The implication in McDonald is that States are powerless to pass laws restricting handgun ownership!

And there you have it, laid out and decided by a one vote margin on a court dominated by Reagan and Bush appointees. Just remember, it was the USSC who ruled segregation legal in Plessy V. Ferguson, and we know how that worked out! So load 'em up, boys while you can. How many more must die?