A new twist on the 9th Circuit decision and how it might be legally countered

[Forseti]

Ok, first the line you all know and love:

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.

I actually read the 9th circuit decision on collective right vs individual rights. If you want to read it yourself, click here.

It did open my eyes to "court thinking" (different from "real actual live human being thinking").

First, I always previously thought that the word "state" in the 2nd Amendment, referred to "the state" as the overall government of the United States. It doesn't. Its actually refers to individual states, in the framer's eyes.

In the literal interpretation of the 2nd amendment, one can argue that it was written to prevent the FEDERAL government from disarming STATE militias...that the framers, who looked at the Federal government not as an all powerful monolithic organization that dwarfed and controls the states..., but as a collection of "local" governments that agreed to a form of organization that binded them all. In that way of thinking, by passing a specific provision that allowed state governments to stay armed, it would prevent overall domination by the Federal government.

If that was the intent, it failed...the Civil War established the preeminence of the Federal government.

In the process, the state Militia's were "taken over" by the Federal government...and the concept of "free state" (as in one of the 50 states being free from overarching control) is destroyed in a manner the framers tried to avoid.

Because of that, I now would love to see an actual legal arguement involving "rights transfer"...that is, that while the framers put in the 2nd amendment to prevent the tight control of state citizenry...it failed. The intent is not followed. The right of a "free state" (one of the 50 states, that is) to bear arms should now be "transferred" (probably a bad legal term in this discussion, but I am not a lawyer) to the individual to preserve the intent of the Constitution.

After all, if there is an implied right to privacy in the Consititution (according to the Supreme Court) there darn well should be an implied individual right to a firearm once state militias lost any semblance of independence. The second amenment is NOT there to preserve a right for the Federal government...and the right it DID preserve for state government has been destroyed...

So, if the "right" is destroyed by the current government organizational model, where does the "right" go? Is it gone, or does it "move"...?

Anti gun forces would argue the right is destroyed. That's a foolish arguement, as it bodes poorly for our other rights, and sets a precedent that an organizational change in government structure that inadvertently destroys rights is "ok"...

I would submit that the right should not be considered destroyed...that it must live on, and just as our government has changed, so must the right change, by transferring ownership to the individual.

I wonder if that would make a good supreme court arguement...Judges need a legal framework to pass such law...I would hope this is it...that the right to bear arms as evisioned has been destroyed by Federal control of state militias, and therefore it should extend to the citizenry of the US.

 

[Hkmp5sd]

The problem is that the media and politicians have the American public completely confused about what the National Guard really is.

The modern federal National Guard was specifically raised under Congress's power to "raise and support armies" and not on it's power to "Provide for organizing, arming and disciplining the Militia."

The reason for this was to provide the federal government with the ability to send the National Guard into overseas combat. (House Report No. 141, 73rd Congress., 1st session (1933), pp 2-5)

The weapons used by this National Guard are owned by the US Government and as such are obviously not the same firearms discussed in the 2nd Amendment.

Technically, there are two different National Guards. The federal National Guard just mentioned and State National Guard, comprised of an organized and unorganized militia, which are created by the state governments under their power to raise an organize a militia. (See "State Govenors and the Federal National Guard" by John G. Kester in the "Harvard Journal of Law and Public Policy, 11 (Winter 1999) 177-212)

The state's organized and unorganized militias are what the 2nd Amendment was talking about as they are to provide their own firearms, either provided by state funds or the individual, but in no way regulated by the federal government.

 

[Graystar]

I don't think your argument would hold.

Your assessment of the 2nd, that it prevents the tight control of state citizenry, is not correct, as the States have no say over their continued inclusion in the Union.

Being a State of the United States is like being married to the mod....it's for life. The States committed themselves to be bound by the Constitution and the laws of the United States. That is an obligation they must continue to perform. The Civil War was, quite plainly, an illegal act in direct violation of Article VI of the Constitution. So the Civil War didn't change anything; it simply restored what had already been.

As viewed through the 9th Circuit's interpretation, the 2nd simply insured that the states could arm their militia. As you have read, the fear was that Congress would simply decide to not arm the militia of the several States, giving a federal army complete power over the States.

What important to realize is the difference between the power the Constitution has over a state and the power that a federal army would have over a disarmed state. In the first case, the powers of the Constitution were delegate by the States to begin with, and is limited to what was delegated. In the second case, an army could impose whatever rule it wants, far exceeding the powers of the Constitution. That was the fear of being disarmed. It had nothing to do with a States ability to extract itself from the Union.

So the courts would say that this right is still preserved and exercised as the National Guard, which is the well-regulated militia (as opposed to us, the not-so-well-regulated militia.)

 

[Jim March]

There are two ways of dealing with this. I'll break them into two separate posts.

Answer #1 is that you're right. Quoting Forseti (in part):

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Because of that, I now would love to see an actual legal arguement involving "rights transfer"...that is, that while the framers put in the 2nd amendment to prevent the tight control of state citizenry...it failed. The intent is not followed. The right of a "free state" (one of the 50 states, that is) to bear arms should now be "transferred" (probably a bad legal term in this discussion, but I am not a lawyer) to the individual to preserve the intent of the Constitution.

-snippage-

So, if the "right" is destroyed by the current government organizational model, where does the "right" go? Is it gone, or does it "move"...?
------------------

One way of looking at it is that such a rights transfer did in fact happen, in 1868.

Let's recap:

In 1856, the US Supremes said that America was a racist nation, that we'd ALWAYS been a racist nation before, during and after the period when our current gov't, Constitution and Bill Of Rights was developed, and that because of that, racist laws were constitutional.

In all of that, the infamous Dred Scott decision was legally correct, if morally flawed.

Per the Dred Scott decision, blacks had none of the "political rights of US Citizenship", which included the right to vote, right to serve on juries (grand juries and trial), and the "militia service right" which was basically the right to be part of the armed Constitutional enforcement process. All of these were part of the "Privileges and Immunities of US Citizenship". The term "privileges and immunities" was used as a complete phrase 31 times, and were exhaustively defined to include the right to arms.

Between 1861 and 1865, over 500,000 Americans died. Part of the fallout was that the slaves were freed. But they were NOT yet US citizens, and while slavery may have been outlawed, the Dred Scott decision had NOT been overturned and America was still, Constitutionally, a racist society - with racist laws.

Between 1865 and 1868, the Southern states passed a bunch of "black codes" that relegated blacks to a level close to slavery. Disarmament was THE most common abuse of their civil rights, by such statutes. If that's all they'd done, the North wouldn't have taken further action but the "Southern state militias" (by now commonly using bedsheets as "night dress uniforms") also did murders, arson, whippings, rapes, riots and sundry other nastiness.

An outraged North passed the 14th Amendment in 1868, the opening paragraph of which read:

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Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
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Ever since, the courts have consistently pretended not to know what "privileges and immunities" are. Literally. 14th Amendment author John Bingham clearly said he was using the phrasing of Dred Scott to UNDO Dred Scott, and that the first eight amendments in the Bill Of Rights would henceforth (as of 1868) be forced on ("incorporated against") the states.

Bingham also talked at length about why this was being done: to allow the Southern blacks to defend themselves both from out-of-control Southern state gov'ts and criminals such as the KKK.

Well here's the point, gents: as of 1868, the blacks did not yet have any political rights. They may have been citizens, but they had no right to vote, no right to serve on juries, and no militia rights whatsoever. In other words, their status was exactly like white women of the time. Besides which, it's laughable to think of a Southern state putting blacks under organized arms back THEN.

And all THAT means that the personal, civil right to keep and bear arms was being turned into a personal, individual right to defense against criminals, unconnected with "militia service", by the 14th Amendment.

All of this was gutted and ignored by the US Supreme Court in the 1875 Cruikshank decision. To quote the official US historical database on matters Constitutional:

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http://www.constitutioncenter.org/sections/history/19th.asp

The Supreme Court decided the case of United States v. Cruikshank in 1876. The case grew out of a brutal massacre of blacks in the little Louisiana town of Colfax.
In Colfax whites burned the court house and murdered an unknown number of blacks. After the U.S. Army restored order, a federal grand jury indicted 72 white men. The United States Attorney brought nine to trial and won a conviction against William Cruikshank and two others.

Normally the federal government does not prosecute persons charged with murder. Control of ordinary crime has traditionally been the job of the states. In this case the U.S. Attorney used the 1870 Enforcement Act. This law makes it a crime for two or more persons to band together with intent to injure, oppress, threaten, or intimidate any citizen.

The Supreme Court threw out the convictions of Cruikshank and his cohorts. As it had in the Slaughterhouse Cases, the Court acted to protect states' power. "Every republican government," Chief Justice Morrison Remick Waite wrote, "is in duty bound to protect all its citizens." He then added, "That duty was originally assumed by the States; and it still remains there."
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Gee, our rights were gutted by a racist Supreme Court. What a surprise.



Not.

 

[Jim March]

The second answer to Reinhardt's brainfart is much simpler, and is probably what Gary Gorski will (and should) forus on:

Ever since 1792, Federal law has specifically defined "the militia" as "all able-bodied males between the ages of 18 and 45". When you factor in support by their families in terms of the tools needed to effectively be members of such a force, this is clearly "we, the people".

This is STILL Federal Law - US Code, Title 10, Section 311 if I'm not mistaken. As of the late 1800s, it was slightly tweaked to split the "militia" into the "organized militia" (those who are actually in uniforms of any sort) and the "unorganized militia" (which is everybody else).

In 1939 the US Supreme Court in US vs. Miller clearly agreed that a 39-year-old moonshiner was in fact a member of the "militia".

All of this was conveniently ignored by Reinhardt...and that's what's gonna trip his sorry butt up.

 

[Brett Bellmore]

I always figured the term "state" in the 2nd amendment was used in the sense of a state of being. After all, they used the term in the singular, and there was more than one state government. If they'd been refering to the state governments, they'd have said, "A well regulated militia being necessary to the security of free states..."

Reinhardt's only going to be "tripped up" if the majority on the Supreme court WANTS to trip him up. It's going to be a political decision, not a legal decision, or else we would have prevailed decades ago. If the majority of the Court want's the 2nd amendment to bite the dust, it won't matter if Reinhardt had cited the tooth fairy as an authority.

 

[Jim March]

I disagree, he made too many mistakes. There's a good possibility it'll be corrected at an En Banc hearing (larger panel of the 9th, which Gary has filed for).

 

[Brett Bellmore]

THAT circuit might correct his "reasoning", but with the possible exception of his overturning the exemption for LEO's, I rather doubt they'll correct his conclusions.

 

[Frohickey]

No such thing as States' Rights!!!

There is no such thing as states' rights.

People have rights and powers.
States only have powers, and these originated from the people.
United States only have powers too, and these originated from the people as well.

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.
IX:The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
X:The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Search the Bill of Rights, and where you see the word right/s, you see the people follow closely. The only amendment where you have state come close to right is in the Second Amendment, and in there, I believe it refers to a condition, and not a State/Government.

 

[Blackhawk]

Whether "a State" refers to all the states in the union collectively or an individual state belonging to the union isn't relevant. The infringement prohibition is on the federal government -- it is not empowered to infringe with the right of the people to keep and bear arms. The 2A doesn't address in and of itself whether an individual state can infringe that individual right.

That it is an individual right is clarified by the language of the 17A, which differentiates "the People" from "the legislature" of a state, and which means that the collective people of a state embodied in their legislatures are not the people of a state considered as individuals. Everybody agreed on that in 1913 when the 17A was ratified by "the people" through their "legislatures."

The burdens the 2A places on the federal government vis-a-vis the individual RKBA are also placed on the individual states by the 14A.

Finally, while a state can "keep" arms, it certainly cannot bear them. Texas is not empowered under the U.S. Constitution to attack Mexico under any sua sponte conditions. It would have been idiotic for such an internal conflict in the Constitution to have existed even before it was sent to the states for ratification.

 

[jimpeel]

The circular argument to the "sophisticated collective rights model"

Based on Article I, Section 10, para 3.

"No State shall, without the consent of Congress, ... keep troops, or Ships of War in time of peace, ..."

ie: The States have to have the permission from Congress to do what is otherwise prohibited to them; but the Second Amendment prevents the Congress from disarming the States who need their permission to be so equipped in the first place. (start over from beginning of sentence and repeat to infinity)

 

[jimpeel]

The argument to the "States rights" model

The word "right" appears only once in the main body of the Constitution. That is in Article I, Section 8, para 8 which deals with Invertors and Authors which are persons. It reads:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

(Note that the word "Right" is capitalized in this sentence).

Vis a vis: there is no such thing as a "State right". Everywhere the States, Judiciary, Congress, or Executive are mentioned in the Constitution, the words "power" or "powers" are used. The word "right" or "rights" is never used in any mention of the States, Judiciary, Congress, or Executive.

 

[Blackhawk]

jimpeel,

Good point!

A "right" is some intangible thing a person can have. Property (including animals), and legal fictions (e.g., corporations) don't have rights plus a lot of persons don't have certain rights until the age of majority, etc.

When a corporation goes to court, it must be represented by its attorney before the court and a legally competent corporate officer must appear for the corporation. The officer cannot substitute for the attorney if he is not himself an attorney, nor can the attorney substitute for the officer. The law treats a corporation as it does a child, a building, or a dog, e.g., a party or object is without legal rights before a court unless it is competently represented. IOW, legal rights are only possessed by legally competent persons. States are in the same category. They have no rights per se.

 

[Wildalaska]

I disagree, he made too many mistakes. There's a good possibility it'll be corrected at an En Banc hearing (larger panel of the 9th, which Gary has filed for).

And that of course is the only way the 9th can rule other that the way they did, via an en banc hearing...as they took pains to point out they were bound by stare decisis..

That being said, since their decision was based on their own precedent, one can say that the bulk of their decision was dicta...

 

[Blackhawk]

...the bulk of their decision was dicta...

It sure was! I've never read such a pile of dicta!

Surprised that "dicta" made it through Oleg's bad word filter. It's a euphemism for..., well you know.