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Prof. Nick Johnson on the right to arms
"Undermining Our Conversation About the Right to Arms." I esp. enjoy its ending:
"Meanwhile, and perversely, federal power is deemed to be nearly boundless. We recently heard top Senators and Representatives say that Congress unquestionably had the power to force people to buy health insurance--and if that, one wonders, why not the power to dictate flossing, broccoli-eating, and infinite other no doubt healthy mandates that are utterly corrosive of liberty. (Some find consolation in the Supreme Court's rationalization that the edict was really a tax.)
All of this turns our constitutional structure on its head. If we took the Constitution's creation of limited powers and affirmation of pre-existing rights seriously, the salient question about the individual right to arms would be this: Where in the enumerated federal powers is there anything close to the authority to infringe on the right to keep and bear arms for self-defense?
For those who would answer, "The Congress shall have Power To regulate Commerce with foreign Nations and among the several States, and with the Indian Tribes"--and notice how much more limited the clause seems when you read its actual language rather than just say "the commerce power"--we should apply the kind of stingy, skepticism that Stevens, Waldman, and others would erroneously apply to the "right of the people to keep and bear arms.""
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If one bothers to actually read the Constitution, one would see that Congress has almost NO POWER over individuals. The lie that Congress can control what people do is prevalent and pervasive but it is a lie. Congress has two simple areas to manage: That of interactions with foreign nations and that of states with each other.
We have come a long way away from Constitutional government. It began with the federalist prevalent first Congress that began violating the Constitution. We have allowed and accepted lies from the Supreme Court about their authority. Blackstone told us that when society and the courts come to blows, that the answer lies with society but our judges have egos greater than the vast oceans of the world and actually believe they are in charge.
The Constitution creates the SC and thus is superior to the Court. The Court being subordinate to the Constitution has no authority to decide what any of the Constitution means. That would be like any of you telling your boss what his job is. The court has lied and usurped powers not granted. The sole entity that is superior to the Constitution is We the People and only We the People can legitimately decide what the Constitution means and the controls it places on the government. BUT We the People are ignorant and stupid.
If you wish to understand the 2nd, read the paragraphs of Story, even if Story is wrong on many accounts. First the Congress has no authority to legislate on any areas covered by the Bill of Rights as Madison and others stated when the Bill of Rights was offered. They authors feared the inclusion would make folks believe the government had some authority over the subjects and stated that the government had no authority to legislate in those areas for any reason. The authors were correct and ignorant people think the BoR grants rights (it does not) and that without the BoR the government could legislate in those areas (which it cannot legally do).
What the 2nd Amendment means: http://gunrightscalifornia.org/educate/gun-news/item/deconstructing-the-2nd-amendment.html?category_id=6
"Where in the enumerated federal powers is there anything close to the authority to infringe on the right to keep and bear arms for self-defense?"
There isn't any, they are forbidden to mess in anyway with the Bill of Rights.
Preamble to the Bill of Rights: Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution...
Then there is Amendment 2 itself: 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.
The words "shall not be infringed" means exactly what it says. That the 2nd Amendment cannot be modified in anyway by those who serve within our governments.
St. George Tucker, a lawyer, Revolutionary War militia officer, legal scholar, and later a U.S. District Court Judge, wrote of the Second Amendment: “The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government.” (The Supreme Court has cited Tucker in over forty cases, in the major cases of virtually every Supreme Court era.)
Samuel Adams: “Under every government the last resort of the people, is an appeal to the sword; whether to defend themselves against the open attacks of a foreign enemy, or to check the insidious encroachments of domestic foes. Whenever a people ... entrust the defence of their country to a regular, standing army, composed of mercenaries, the power of that country will remain under the direction of the most wealthy citizens.
And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless necessary for the defense of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances; or to subject the people to unreasonable searches and seizures of their persons, papers or possessions”.
William Rawle, whose work was adopted as a constitutional law textbook at West Point and other institutions, and was United States Attorney for Pennsylvania, describes the scope of the Second Amendment's right to keep and bear arms: “The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.”
Justice Story, Associate Justice, Supreme Court wrote: “The next amendment is: "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.
The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them”.
Tench Coxe: “Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American...The unlimited power of the sword is not in the hands of either the federal or state governments but, where I trust in God it will ever remain, in the hands of the people.”
The New Hampshire ratifiers called for a guarantee (the Second Amendment) that: Congress shall never disarm any Citizen...”.
The Pennsylvania minority at its ratifying convention demanded a guarantee of a very broad right to arms, that: "the people have a right to bear arms for the defence of themselves and their own State or the United States, or for the purpose of killing game."
Joel Barlow, Revolutionary War veteran, wrote “Advice to the Privileged Orders, in the Several States of Europe”, clergyman, theologian, popular poet, successful diplomat, and American whose political writings were debated on the floor of Parliament said of the US Constitution: "… not only permitting every man to arm, but obliging him to arm.”
Patrick Henry: “The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government."
Daniel Webster: “Where is it written in the Constitution, in what article or section is it contained, that you may take children from their parents and parents from their children, and compel them to fight the battles of any war in which the folly and wickedness of the government may engage itself? Under what concealment has this power lain hidden, which now for the first time comes forth, with a tremendous and baleful aspect, to trample down and destroy the dearest right of personal liberty? Who will show me any Constitutional injunction which makes it the duty of the American people to surrender everything valuable in life, and even life, itself, whenever the purposes of an ambitious and mischievous government may require it? ... A free government with an uncontrolled power of military conscription is the most ridiculous and abominable contradiction and nonsense that ever entered into the heads of men”.
John Adams: “There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.”
“The inhabitants of Switzerland emancipated themselves by the establishment of a Militia, which finally delivered them from the tyranny of their lords.” Representative Jackson, first U.S. Congress, when it met and turned to defense measures in 1791
Early American Caselaw:
Bliss v. Commonwealth: “Arms restrictions - even concealed weapons bans - are unconstitutional, since arms bearing is an individual right and the legislature may not restrict any aspect of such a right.”
Nunn vs. State:'The right of the people to keep and bear arms shall not be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the milita, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right”.
Andrews v. State explains, this "passage from Story, shows clearly that this right was intended, as we have maintained in this opinion, and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights."
Cockrum v. State: “The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the high powers delegated directly to the citizen, and is excepted out of the general powers of government. A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power”.
It is usurpation.
Thomas Cooley: “The right is general. It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. . . . If the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for that purpose”.
Thomas J. Jackson: “The patriot volunteer, fighting for country and his rights, makes the most reliable soldier on earth.”
Thomas Jefferson:“Every citizen should be a soldier. This was the case with the Greeks and Romans, and must be that of every free state.”
Kentucky Revised Statutes: “The Governor is hereby authorized to enlist, organize, maintain, equip, discipline and pay when called into active field service a volunteer state defense force other than the National Guard...
James Madison: An efficient militia is authorized and contemplated by the Constitution and required by the spirit and safety of free government.
James Madison: ... large and permanent military establishments ... are forbidden by the principles of free government, and against the necessity of which the militia were meant to be a constitutional bulwark.
James Monroe: Of the liberty of conscience in matters of religious faith, of speech and of the press; of the trial by jury of the vicinage in civil and criminal cases; of the benefit of the writ of habeas corpus; of the right to keep and bear arms.... If these rights are well defined, and secured against encroachment, it is impossible that government should ever degenerate into tyranny.
John Norton Pomeroy: The object of this clause [the right of the people to keep and bear arms] is to secure a well-armed militia.... But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms.
State Gazette (Charleston): No free government was ever founded or ever preserved its liberty, without uniting the characters of the citizen and soldier in those destined for the defense of the state.... Such are a well regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen.
Haven't read Waldman's book, but did listen to an extensive presentation of his understanding of Second Amendment history. He essentially advances the same viewpoint as Justice Stevens in the Heller dissent.
As for the Heller dissent, Justice Stevens is directly contradicted by period sources in every case he uses them to support his "state militias" argument. This fact is documented in an ongoing series of posts entitled The District of Columbia vs Heller Dissent at On Second Opinion Blog.