.: 03/2012

It seems like my monthly postings keeps coming later and later in the month. I do apologise and next month I'll do my damnedest to have it to you by the 5^th. This time I really do have a valid reason, though. Two, actually.

First, there are so many things going on I was having a hard time deciding which one deserves the time to research. I finally settled on this month's topic, sat down to write it and that day my wife had a heart attack. A trip to the ER and the fear of possibly losing my best friend put everything else on hold. While we were dealing with all that that entails, my computer crashed. I thought I had everything backed up. That's what I get for thinking; I didn't double-check the output of my back-up program. There is a lesson in there somewhere.

BTW; my wife is ok now. Making a few life-style changes and slowin' down a bit but back home and doing well.

So now I have redone all of my research for this month's topic: The 2^nd amendment and some recent court cases and decisions about it.

Here it is in all it's simplicity and glory.

Amendment II

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.

This simple, one-sentence part of our constitution has caused more controversy than almost any other legal statement in the history of our great country.

Let's get a bit of historical context.

A lot of people in this country think that we should have European-style gun laws. They point, quite correctly, to a direct correlation between the very restrictive European laws and most of Europe's very low incidence of gun violence. What these good citizens completely ignore is over 300 years of history and culture.

Most European countries are hundreds, if not thousands of years old. In their entire history the military were the only ones allowed to posses any more armament than a dagger. Ordinary citizens were simply forbidden from possessing weaponry. That is all they know.

On the other hand, since the first explorers and settlers landed on America's shores; a century or two before we became a sovereign nation, EVERYBODY had a gun. They (guns) were an absolute necessity for survival both from a view of self defence and for putting food on the table. Even the Quakers and Pilgrims all had guns. Our entire history has been written with the average person being armed.

In that light, any attempt to disarm our population succeeds only in either disarming the law-abiding citizenry or – if they refuse to give up their ability to defend themselves and their families - making criminals out of them. On the other hand the bad guys, by their very nature, don't pay any attention to the laws in the first place and they keep their guns. Or get more of them. I seriously doubt that any law passed anywhere has ever made a criminal give up his gun.

So that brings us to this months' topic. What have the courts been deciding recently in regards to the 2^nd amendment?

#1 Until 2008, probably the biggest point of disagreement about the 2^nd amendment were the first 4 words. Does the statement: “A well regulated militia” refer to the individual or to the national guard? That question has finally been settled. At least for now.

On 6/26/'08 in District of Columbia v. Heller¹, the supreme court held in part : The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defence within the home.

Arguably, the most important part of this decision was 1b that reads:

“The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defence. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicised standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28. “

That reminds me of the old adage: “An armed man is a citizen. An unarmed one a subject.” Obviously, that is what our wise [er than me] founding fathers had in mind.

#2 On June 28^th, 2010, the supreme court ruled on McDonald v. Chicago^2
, expanding on DC v Hellerand stating 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 individual states as well as the Federal Government. In a nutshell, that means that states have to follow the federal constitution as well as their own and that federal trumps state.

In explaining the Chicago decision, Justice Alito stated "It is clear that the Framers . . . counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."

#3 A Maryland law restricting carrying outside the home has been struck down. U.S. District Court Judge Benson E. Legg has declared the requirement forcing those applying for a gun-carry permit to show that they have a "good and substantial reason" to do so "impermissibly infringes the right to keep and bear arms," as guaranteed by the Second Amendment³." The judge went on to say: "The right's existence is all the reason he needs."

#4 In Colorado, if you have a valid conceal carry permit, you can now carry even on a University campus. Thanks to the Students for Concealed Carry on Campus you can now protect yourself, at least in Colorado, from campus shooters⁴.

At least 8 states have passed so-called “Firearms Freedom Acts”; laws that state “ any firearms made and retained in-state are beyond the authority of Congress under its constitutional power to regulate commerce among the states.⁵” FFA s are an attempt to eventually end federal control over all gun laws within an individual state. South Carolina has actually done just that. In 2010 a bill was introduced in their state legislature which would effectively nullify all gun registration laws within the state⁶. Several more states are considering similar laws. How these laws will hold up to constitutional scrutiny is any body's guess

In the news lately due to the shooting in Florida of an un-armed teenager, are the so-called Castle Doctrines⁷ofseveral states. A Castle Doctrine is an American legal doctrine that designates a person's abode (or, in some states, any place legally occupied, such as a car or place of work) as a place in which the person has certain protections and immunities and may in certain circumstances attack an intruder without becoming liable to prosecution. At least 22 states have some form of Castle Doctrine, with a few going even further and instituting a "Stand Your Ground" law⁸. These laws state that you have no duty to flee from an aggressor and that you are justified and indemnified from civil or criminal prosecution for using deadly force, even if you're in a public place and had a chance to leave and avoid the confrontation.

Stand Your Ground laws (sometimes known as "Make My Day" laws) are especially controversial; particularly in light of the Zimmerman shooting⁹.

The Federalist Papers consist of a series of essays written by Alexander Hamilton, John Jay, and James Madison explaining how this new government would operate and why this type of government was the best choice for the United States of America.

In the Federalist papers # 46, founding father James Madison put the entire need-to-be-armed subject in context when he wrote: “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms”¹⁰.

Although many people in the last hundred-or-so years have tried to say that the need to maintain a militia of “all males physically capable of bearing arms” is no longer valid since we have the national guard and a constant standing army, the courts keep upholding an individuals' right to own guns. As one Supreme Court justice-whose name I can't remember- put it (I am quoting from memory so this is a paraphrase) “The 2^nd amendment is there in case the courts, military and law enforcement forget about the other 9.”

Former president Bill Clinton not withstanding, the right to keep and bear arms has nothing to do with hunting ducks. It is a vital part of our way of life; necessary to keep a free people free and to guarantee that the Federal Government won't decide to throw out the constitution and turn us all into subjects and serfs.

At least that's my opinion. What's yours?

To keep an eye on upcoming court cases involving the 2^nd amendment to our constitution, visit the Second Amendment Foundation's web site at:

http://www.saf.org/

For the complete text of the Constitution of the United States, visit:

http://www.constitution.org/constit_.htm

If you would like to download and print a nice-looking copy of the Constitution and/or our Declaration of Independence, go to:

http://www.archives.gov/exhibits/charters/charters_downloads.html

Citations