Too many misinterpretations - despite anti myths, the 2nd Amendment IS simple!

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Over the last week on other sites, and other public venues, there have been a flury of anti-gun nut attacks on our rights. There are the same tired arguments over and over, along with the usual misleading stats, mis-read court citings, and WRONG "meanings" of the 2nd posted as facts. Here is a start at getting things straight...

Note: While there are of course TONS of quotes by the founders supporting our interpretation of the 2nd (i.e. - it means what it says), it is often good to rely on the actual document - 'cause, unlike the Supreme Court, it can never be wrong! So, let's start there...


The US Constitution (1788) gave powers in Article 1 Section 8 Clause 15 & 16 to the Congress that were formally powers of the states - 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, and "to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions". {Congress 1st provided for this in the Militia Act of 1792 - the people armed themselves AS ALWAYS - with longarms AND pistols, discipline was via Van Stuben's Blue Book, organization was spelled out, and the Militia would be called it by the President etc. etc.}. The states kept the powers for the appointment of the officers, and the authority of training the militia according to what Congress came up with.

In the Bill of Rights (1791), WHICH AMENDED THE CONSTITUTION, along with other individual rights, the people wanted to MAKE SURE the Congress with their new power could NOT infringe on THEIR Right to keep and bear arms, and would NOT do away with THE well-armed and well-trained militias. They protected the former explicitly in the restrrcitive clause, and further recognized and "required" the latter in the declarative, both part of the 2nd Amendment. Infringement is unconstitutional, and so is malfeasance with regards to the militia.

Because the 2nd ALSO became part of "the supreme law of the Land" {Article VI} - "anything in the Constitution or laws of any State to the contrary notwithstanding", NEITHER could the States infringe on the right to keep and bear arms, nor make THE Militia obsolete.

That is it - the 2nd "requires" THE well-armed well trained Militia of the several states, AND protects THE Right of the people; ALL as the supreme Law of the Land.


Other points:
THE Militia existed already, "the militia of the several states" is well-recognized as exisiting by the constitution, is recognized as permanent and necessary, AND recognized as separate from the Army & Navy. ("The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;"). Congress did NOT get power to create it, or re-create it! The Guard is NOT THE militia - it was federally created and is federally armed - it is a reserve OF THE ARMY (and air force), and it is useless to serve in the roles required of it by the constitution if it is overseas.
Now, I KNOW what is the current law and code, I KNOW how the constitutional militia has been rendered obsolete - right, wrong or unconstitutionally - but let's make SURE what the "intent" of the 2nd "was", isn't re-defined because of what "IS" now. Besides, we all are mostly still part of the "unorganized militia".

The Right of the people to keep and bear arms also existed already - it was secured in the original militia clauses, and is further recognized AND PROTECTED by the 2nd amendment - AS A a personal right!

The 1st Senate had a motion to add "for the common defence" after "bear arms" to the article which became the 2nd - they REJECTED it.



Tell all those doubters - "Don't like the amendment - get it changed, but DO NOT be dishonest about what it says by trying to change what it means!"

 

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More good myth -busting - CNN Poll ONLY 49% want more control

CNN - Gallop Poll - 49% favor stronger gun control.

http://www.cnn.com/2007/POLITICS/04/17/schneider.gun.co...

WASHINGTON (CNN) -- Is the Virginia Tech tragedy likely to put gun control on the political agenda? Don't bet on it. In recent years, gun control has been an issue most politicians prefer to stay away from.

The last significant gun control measures to make it through Congress were the Brady bill in 1993 and the assault weapons ban in 1994.

And what happened? Democrats lost control of Congress for 12 years. President Clinton said the gun lobby had a lot to do with his party's defeat. Democrats have been gun-shy ever since. (Watch why it is considered easy and simple to buy a gun in Virginia )

Then-Vice President Al Gore rarely talked about gun control during the 2000 presidential campaign. Gore even went so far as to say he wouldn't restrict sportsmen or hunters, "None of my proposals would have any effect on hunters or sportsmen or people who use rifles."

Massachusetts Sen. John Kerry, the Democrats' 2004 presidential candidate, went hunting during his campaign. He defended 2nd Amendment rights said during a campaign debate, saying, "I will protect the Second Amendment. I always have and I always will."

Nevertheless, the National Rifle Association ran an ad railing against Kerry and Gore's stance on gun rights. "John Kerry, you are not fooling America's gun owners," the ad stated. "They know you voted against their gun rights for 20 years. So now you're running away from your record, just like Al Gore did."

This year, former New York City mayor and current Republican presidential candidate Rudy Giuliani, a longtime supporter of gun control, says the matter should be left to the states. Polls show the public supports gun control. Why don't the politicians get with the people?

Support for gun control dropping
Public support for stricter gun laws has been declining since the 1990s, according to the Gallup Poll. In January 2007, the number of people who supported stricter gun laws was at 49 percent, less than a majority for the first time since at least 1990.

Why such a decline? It seems related to the steady drop in the nation's violent crime rate since 1994. After a shocking incident like the one at Virginia Tech, public anger over gun violence rises. So does support for gun control measures. (Watch the what the statistics say about gun laws and crime )

Sen. Dianne Feinstein, D-California, issued a statement saying, "I believe this will re-ignite the dormant effort to pass common-sense gun regulations in this nation.''

But public anger is not usually sustained very long, whereas gun owners remember every gun control vote as a threat to their rights. Gun owners vote the issue. Supporters of gun control typically don't. So politicians believe they will pay a price at the polls if they support new guns laws, even when most voters agree with them. When it comes to public opinion, intensity matters. Not just numbers.

 

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Court Cases supporting the 2nd

Another famous anti-gun nut myth is to "quote" how the collective argument of the 2nd re: the USSC makes it "settled law". This too is bull!

Here are some truthfull cases and their decisions.
http://www.firearmsandliberty.com/fedcases.2nd.html#SC1

Federal Cases Regarding the 2nd Amendment

TABLE OF CONTENTS


U.S. Supreme Court Cases
United States v. Cruikshank
Presser v. Illinois
Miller v. Texas
U.S. v. Miller
Lewis v. United States
United States v. Verdugo-Urquirdez

United States vs Dred Scott:

Dred Scott decision, the U.S. Supreme Court showed that it shared this understanding that citizenship excluded blacks, and because of the relationship between citizenship and the carrying of arms:
It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

United States v. Cruikshank, 92 U.S. 542 (1876). This was the first case in which the Supreme Court had the opportunity to interpret the Second Amendment. The Court recognized that the right of the people to keep and bear arms was a right which existed prior to the Constitution when it stated that such a right "is not a right granted by the Constitution . . . [n]either is it in any manner dependent upon that instrument for its existence." The indictment in Cruikshank charged, inter alia, a conspiracy by Klansmen to prevent blacks from exercising their civil rights, including the bearing of arms for lawful purposes. The Court held, however, that because the right to keep and bear arms existed independent of the Constitution, and the Second Amendment guaranteed only that the right shall not be infringed by Congress, the federal government had no power to punish a violation of the right by a private individual; rather, citizens had "to look for their protection against any violation by their fellow-citizens" of their right to keep and bear arms to the police power of the state.

Presser v. Illinois, 116 U.S. 252 (1886). Although the Supreme Court affirmed the holding in Cruikshank that the Second Amendment, standing alone, applied only to action by the federal government, it nonetheless found the states without power to infringe upon the right to keep and bear arms, holding that "the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, as so to deprive the United States of their rightful resource for maintaining the public security and disable the people from performing their duty to the general government."

Presser, moreover, plainly suggested that the Second Amendment applies to the states through the Fourteenth Amendment and thus that a state cannot forbid individuals to keep and bear arms. To understand why, it is necessary to understand the statutory scheme the Court had before it.

The statute under which Presser was convicted did not forbid individuals to keep and bear arms but rather forbade "bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law . . . ." Thus, the Court concluded that the statute did not infringe the right to keep and bear arms.

The Court, however, went on to discuss the Privileges and Immunities Clause of the Fourteenth Amendment, noting that "t is only the privileges and immunities of citizens of the United States that the clause relied on was intended to protect." As the Court had already held that the substantive right to keep and bear arms was not infringed by the Illinois statute since that statue did not prohibit the keeping and bearing of arms but rather prohibited military-like exercises by armed men, the Court concluded that it did not need address the question of whether the state law violated the Second Amendment as applied to the states by the Fourteenth Amendment.

Miller v. Texas, 153 U.S. 535 (1894). In this case, the Court confirmed that it had never addressed the issue of the Second Amendment applying to the states through the Fourteenth Amendment. This case remains the last word on this subject by the Court.

Miller challenged a Texas statute on the bearing of pistols as violative of the Second, Fourth, and Fourteenth Amendments. But he asserted these arguments for the first time after his conviction had been affirmed by a state appellate court. Reiterating Cruikshank and Presser, the Supreme Court first found that the Second and Fourth Amendments, of themselves, did not limit state action. The Court then turned to the claim that the Texas statute violated the rights to bear arms and against warrantless searches as incorporated in the Fourteenth Amendment. But because the Court would not hear objections not made in a timely fashion, the Court refused to consider Miller's contentions. Thus, rather than reject incorporation of the Second and Fourth Amendments in the Fourteenth, the Supreme Court merely refused to decide the defendant's claim because its powers of adjudication were limited to the review of errors timely assigned in the trial court. The Court left open the possibility that the right to keep and bear arms and freedom from warrantless searches would apply to the states through the Fourteenth Amendment.

U.S. v. Miller, 307 U.S. 174 (1939). This is the only case in which the Supreme Court has had the opportunity to apply the Second Amendment to a federal firearms statute. The Court, however, carefully avoided making an unconditional decision regarding the statute's constitutionality; it instead devised a test by which to measure the constitutionality of statutes relating to firearms and remanded the case to the trial court for an evidentiary hearing (the trial court had held that Section 11 of the National Firearms Act was unconstitutional). The Court remanded to the case because it had concluded that:


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.
Thus, for the keeping and bearing of a firearm to be constitutionally protected, the firearm should be a militia-type arm.

The case also made clear that the militia consisted of "all males physically capable of acting in concert for the common defense" and that "when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." In setting forth this definition of the militia, the Court implicitly rejected the view that the Second Amendment guarantees a right only to those individuals who are members of the militia. Had the Court viewed the Second Amendment as guaranteeing the right to keep and bear arms only to "all males physically capable of acting in concert for the common defense," it would certainly have discussed whether, on remand, there should also be evidence that the defendants met the qualifications for inclusion in the militia, much as it did with regard to the militia use of a short-barrelled shotgun.

Lewis v. United States, 445 U.S. 95 (1980). Lewis recognized -- in summarizing the holding of Miller, supra, as "the Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well-regulated militia'" (emphasis added) -- that Miller had focused upon the type of firearm. Further, Lewis was concerned only with whether the provision of the Omnibus Crime Control and Safe Streets Act of 1968 which prohibits the possession of firearms by convicted felons (codified in 18 U.S.C. 922(g) in 1986) violated the Second Amendment. Thus, since convicted felons historically were and are subject to the loss of numerous fundamental rights of citizenship -- including the right to vote, hold office, and serve on juries -- it was not erroneous for the Court to have concluded that laws prohibiting the possession of firearms by a convicted felon "are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties."

United States v. Verdugo-Urquirdez, 110 S. Ct. 3039 (1990). This case involved the meaning of the term "the people" in the Fourth Amendment. The Court unanimously held that the term "the people" in the Second Amendment had the same meaning as in the Preamble to the Constitution and in the First, Fourth, and Ninth Amendments, i.e., that "the people" means at least all citizens and legal aliens while in the United States. This case thus resolves any doubt that the Second Amendment guarantees an individual right.


U.S. Courts of Appeals Cases

10/16/01 - Fifth Circuit Court of Appeals Affirms Emmerson Case: Second Amnendment is an individual right!
U.S. v. Nelson
U.S. v. Cody
U.S. v. Decker
U.S. v. Synnes
Gilbert Equipment Co. Inc. v. Higgins
U.S. v. Oakes
U.S. v. Swinton
U.S. v. Johnson
U.S. v Bowdach
U.S. v. Johnson
Quilici v. Village of Morton Grove
U.S. v. McCutcheon
Stevens v. United States
U.S. v. Day
U.S. v. Warin
U.S. v. Tot
U.S. v. Graves
Cases v. United States



U.S. District Court Cases

Texas District Court Rules the Second Amendment to be an INDIVIDUAL right!
(This is a PDF File - Requires Adobe Acrobat Reader)
U.S. v. Gross
U.S. v. Kraase
Thompson v. Dereta
Vietnamese Fishermen's Assoc. v. KKK
U.S. v. Kozerski
And of course the latest DC vs Parker case!

 

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And just in case - some of the actual qutes of the founders

These are - wherever possible the 1st Congress - THE GUYS WHO APPROVED THE ARTCLES WHICH BECAME AMENDMENTS!

Rep Madison, Virginia. 1st Congress, Constitutional Convention - all around good guy...

"Supposing a bill of rights to be proper ... I am inclined to think that absolute restrictions in cases that are doubtful, or where emergencies may overrule them, ought to be avoided. The restrictions however strongly marked on paper will never be regarded when opposed to the decided sense of the public, and after repeated violations in extraordinary cases they will lose even their ordinary efficacy"
i.e. ONLY Rights he knew were absolute were proposed

Rep. Thomas Scott: objected to the clause in the 6th amendment "No person religiously scrupulous shall be compelled to arms." He observed that if this becomes part if the constituion, such persons can neither be called upon for their service nor can an equivalent be demanded; it is also attended with still further difficulties, for a Miltiia can never be depended on. This would lead to violation of another article in the constitution which secures the people the right of keeping arms (A1 S8 C15) and in this recourse must be had to a standing army.

Rep. James Madison HR Virgina: "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."

Senator Fisher Ames Sen: "Mr. Madison has introduced his long expected amendments .... "The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people."

Senator William Grayson: "Last Monday a string of amendments were presented to the lower House; these altogether respected personal liberty"

Joseph Jones: "they are calculated to secure the personal rights of the people ...."

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Seven of the ten amendments in the Sherman draft declared rights of the people, while three concerned the structure and power of government. Sherman's rights guarantees were far more limited than those of Madison: the draft included no declaration of the rights of the people to keep and bear arms, against unreasonable search and seizure, to counsel and to due process of law, and no mandate on separation of church and state

Sherman's draft was not adopted by the House Select Committee, which instead, on July 28, reported Madison's proposals as amended by the Committee.
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1st Congress - Select Committee of 11: "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."


SAMUEL ADAMS ... "And that the said constitution be never construed to authorize congress ... to prevent the people of the United States, who are peaceable citizens, from keeping their own arms


Rep William L. Smith : "The Committee on Amendments have reported some, which are thought inoffensive to the Federalists & may do some good on the other side .... There appears to be a disposition in our house to agree to some, which will more effectually secure private rights, without affecting the structure of the Government."

i.e. what became the 2nd was included in the "some" - those that secured private rights, the house approved.


Rep Elbridge Gerry, Mass: re: the religious exemption in Madison's proposal: "This declaration of rights, I take it, is intended to secure the people against the mal-administration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms" What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty."


Senator Richard Henry Lee, Virginia: "to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them."


On September 9, the Senate again took up what became the Bill of Rights. It passed a form of the First Amendment similar to the final version. The Senate then rejected a proposal to add "for the common defence" after "bear arms" in the Second Amendment.

Congressman Josiah Parker of Virginia: objected that the requirement that "every man in the United States shall 'provide himself' with military accoutrements would be found impracticable, as it must be well known that there are many persons who are so poor that it is impossible they should comply with the law."

Rep. Thomas Fitzsimons, Pennsylvania": As far as the whole body of the people are necessary to the general defence, they ought to be armed,"

Rep. James Jackson of Georgia: "the people of America would never consent to be deprived of the privilege of carrying arms".

Rep. Jeremiah Wadsworth of Connecticut: "Is there a man in this House who would wish to see so large a proportion of the community, perhaps one-third, armed by the United States, and liable to be disarmed by them?"


Patrick Henry, in the Virginia Convention on the ratification of the Constitution: "The great object is that every man be armed. Everyone who is able may have a gun."

Yates - Constitutional Convention, Brutus (2): "The common good, therefore, is the end of civil government, and common consent, the foundation on which it is established. To effect this end, it was necessary that a certain portion of natural liberty should be surrendered, in order, that what remained should be preserved: how great a proportion of natural freedom is necessary to be yielded by individuals, when they submit to government, I shall not now enquire. So much, however, must be given up, as will be sufficient to enable those, to whom the administration of the government is committed, to establish laws for the promoting the happiness of the community, and to carry those laws into effect. But it is not necessary, for this purpose, that individuals should relinquish all their natural rights. Some are of such a nature that they cannot be surrendered. Of this kind are the rights of conscience, the right of enjoying and defending life, etc

Madison, Virgina Rep, to Jefferson: "It is true nevertheless that not a few, particularly in Virginia have contended for the proposed alterations from the most honorable & patriotic motives; and that among the advocates for the Constitution there are some who wish for further guards to public liberty & individual rights. As far as these may consist of a constitutional declaration of the most essential rights, it is probable they will be added;"

Rep John Page, Virginia: hoped the house would agree to the motion of his colleague without hesitation, because he conceived it essentially necessary to speedily as possible for whatever might be fact with respect to the security which the citizens of America had for their rights and liberties under the new constitution…