03.20.08
• Guy Midkiff: Second Amend. Podcast
3.19.08
A Field Guide to American Politics on Blog Talk Radio – DC v. Heller Discussion with Guy Midkiff
Go To Pod Cast: Click
02.19.08
• A Sure-Fire Argument on the Second Amendment
by Rick Lynch<!– put date below, before tag –>, February 18, 2007 With the Supreme Court’s decision to examine the constitutionality of D.C.’s gun ban, the nation once again turns to an intense examination of the wording of the Second Amendment. One way to understand an amendment whose words have confused generations is to study its somewhat confusing text. But another way is to examine at whose request the amendment was written.
For example, if 200 years from now constitutional scholars are trying to determine whether the Smith Tax Act of 2008 increased or decreased the taxes Social Security recipients paid on their retirement income, knowing that the act came into being as the result of pressure from AARP would pretty much end that debate. This, then, is a vital question when seeking to understand the Second Amendment. For if you know the context in which the Amendment was written, if you know for whom it was written, if you know who was clamoring for it and what were their concerns, then that can help settle any argument of individual rights versus collective rights. The Bill of Rights was written by Congressman James Madison to fulfill a promise made to the Anti-Federalists after pressure from that group had cost him a Senate seat — pressure brought to bear because of his opposition to amending the Constitution with a bill of rights. The Bill of Rights, then, as any history book will confirm, came into being to satisfy the single most suspicious, vociferous, and relentless foes of the new federal government. That is the all-important context in which the Bill of Rights was created. The Anti-Federalists, men filled to varying degrees with fear, mistrust, and loathing of the new federal government, insisted on a bill of rights as additional shackles imposed on that new government. Knowing that alone, knowing that the famous Bill came into existence only to please those most apprehensive of the new government, definitively ends any confusion or debate surrounding the meaning of the Second Amendment. There is simply no way on Earth the Anti-Federalists would have surrendered to the new and mistrusted government the right to own any gun they wanted at any time they wanted in any number they wanted. To believe differently, to believe that the Second Amendment actually gives the federal government the authority to regulate firearms, one must believe the absolutely unbelievable. One must believe that the Anti-Federalists, fearing and loathing federal power, compelled Madison to compose this laundry list of rights, this list of things over which the government was to have no authority and, very near the very top of the list, these people in fear of the federal government desired a clause that reads, “Despite the fact that Article I, Section 8 does not empower you federal government people to infringe our firearms rights, we hereby correct that mistake and surrender to you a right which we previously held, but wish now to give away.” We must further believe that James Madison was such a monumentally incompetent and abysmal writer that, when trying to give the federal government this new authority to regulate the private ownership of firearms, the last fourteen words of the Amendment read, “The right of the people to keep and bear arms shall not be infringed.” We must also believe that revolutionary American history conceals some hitherto unknown and utterly undocumented groundswell of public desire for gun control. Picture in your mind for a moment the rough-and-tumble individualist who gave birth to this nation, a man who had tamed a wilderness, fought Indian wars on and off for 180 years, and successfully faced down the world’s mightiest empire. Hold a picture of that man in your head for a moment and then try to imagine his being told that this new federal government would have the power to regulate his ownership of firearms in any manner it saw fit, including imprisoning him for possession of any firearm for any reason at any time. No honest or serious person could ever claim to believe that any part of the American electorate in the 1700s desired federal gun control, let alone the Anti-Federalists who forced the creation of the Bill of Rights. Rick Lynch is an author living in Virginia. He is finishing a book on constitutional issues entitled They Are Vicious. Send him email.
02.03.08
* Republican Presidential Candidates Position
Do you know where the Republican Candidates stand on gun control and the Second Amendment?
Mike Huckabee on the Second Amendment: http://www.mikehuckabee.com/?FuseAction=Issues.View&Issue_id=18 Gun Owners of America on Mike Huckabee: http://gunowners.org/pres08/huckabee.htm Gun Owners of America on John McCain: http://gunowners.org/pres08/mccain.htm Gun Owners Rating of John McCain: http://www.gunowners.org/mccaintb.htm Gun Owners: "Abysmal, wretched, and pathetic" comment: http://www.gunowners.org/mccaintb.htm Gun Owners of America on Mitt Romney: http://gunowners.org/pres08/romney.htm Romney’s "chip away" comment: http://gunowners.org/pres08/romney.htm Romney expressing support of Massachusetts laws: http://gunowners.org/pres08/romney.htm Romney’s "lifelong hunting": http://abcnews.go.com/Politics/wireStory?id=3013787 Romney’s "lifetime" NRA membership (see last line of story): http://abcnews.go.com/Politics/wireStory?id=3013787http://www.google.com/search?hl=en&q=when+did+Romney+join+the+NRA&btnG=Google+Search Romney’s lack of actual gun ownership: http://www.boston.com/news/local/articles/2007/01/14/romney_retreats_on_gun_control/?page=2 Romney signs permanent assault weapons ban: http://www.boston.com/news/local/articles/2007/01/14/romney_retreats_on_gun_control/?page=2http://www.google.com/search?hl=en&q=Romney+sign+assault+weapon+ban&btnG=Google+Search
01.23.08
• Washington D.C. Gunaphobics
Comparisons by “Concealed” 1-22-08:
Washington, D.C. has the most restrictive gun prohibition in American. Their social experiment – criminalizing practitioners of the Second Amendment – since 1976, has proven that draconian anti-gun laws only ensure that bad guys have guns. Texas, by comparison, has one of the most liberal gun rights law in America. Citizens of Washington D.C. are twice as likely to be a victim of violent crime as is a Texan. Disgustingly, out of every 100,000 citizens of D.C., 1370 were victims of violent crime in 2004. Let’s break than down: This means that 1% of its citizenry was a victim of crime in the aforementioned time frame. Conversely, “Gun Happy” Texas had 540 victims of crime out of each 100,000 residents. These are “violent” crime statistics.
In order to really deal with the devilish details, one has to look at murder statistics. Gunaphobic D.C. crosses at the head of the finish line with 36 of every 100,000 citizens dying of murder. Those gun-toten Texans have about 6 in 100,000 perish from murder. In round figures, you and your family, visiting the cradle of justice, stands 6 times greater chance of being murdered than visiting Texas. It’s your choice, America – Gunless D.C. (unless you are a b.g.) or Gun toten Texas. Personally, I think I will stick with Texas. (Data derived from 2004 FBI Crime Statistics.)
01.21.08
• Solicitor General’s Bizarre Amicus Brief
The Second Amendment a second class right?
By Charles Bloomer
web posted January 21, 2008
The Solicitor General has issued a truly bizarre amicus brief to the Supreme Court in the case of Heller vs. District of Columbia, the case that is challenging the District’s ban on handguns.
The Solicitor General’s Office represents the administration in cases before the Supreme Court and, as in this case, presents the administration’s position. Needless to say, the Solicitor General’s Office has considerable influence before the court.
The brief presented by the Solicitor General makes some valid points upon which Second Amendment supporters can agree. The brief states the administration’s opinion that the right to keep and bear arms is an individual right, and that laws restricting that right should be subject to “strict scrutiny” – meaning that legislators must weigh the proposed benefit of the law carefully before infringing on a Constitutionally guaranteed right. Additionally, the brief expresses the opinion that the District of Columbia’s strict gun ban should be overturned. So far, so good.
The Solicitor General’s brief also takes a bizarre turn. While the Solicitor General calls for “strict scrutiny” for gun laws in general, he calls on the Supreme Court to apply only “intermediate scrutiny” as it determines Heller vs. DC. The Solicitor General also argues that the Second Amendment is not a “fundamental” right.
So what the Solicitor General seems to be saying is that, well, sure, the Second Amendment calls for individual rights, and those rights should be afforded “strict scrutiny” most of the time, but the administration does not believe that gun rights are “fundamental” rights, and so, therefore, Your Honor, you don’t need to be too strict in your decision-making process in this case. In fact, we don’t think you should really decide this case, but you should send it back down to the Circuit Court for more study, and while they are at it, tell them they only need to use “intermediate scrutiny”.
In essence, the Solicitor General is saying that our Second Amendment rights are second-class rights that don’t rise to the level of “fundamental” rights as do really important rights such as the First Amendment, or the Fourth and Fifth Amendments. Truly bizarre.
One needn’t be a lawyer to recognize the esoteric nonsense in the Solicitor General’s argument. Let me provide some esoteric sense.
First, the argument that the Second Amendment is not a “fundamental” right is blatantly false. As I have written before, our gun rights are inherent in our inalienable rights to life, liberty and the pursuit of happiness– rights endowed by our Creator. Gun ownership gives us the tools for self-defense so that we can exercise those rights. The concept of inalienable rights is enshrined in the Declaration of Independence, a foundational document. The Declaration gives us the big picture, philosophical ideas that serve as the foundation of our nation. The Bill of Rights is a more specific declaration of those rights – rights to be guaranteed, not granted, by the government. The Bill of Rights is a restriction on government, not citizens. The tone of that restriction is embodied in the First Amendment – “Congress shall pass no law….” – and repeated in the Second Amendment – “shall not be infringed”.
Further, the idea that the Second Amendment rights are not “fundamental” is not consistent with earlier Supreme Court rulings. For instance, in U.S. vs. Cruikshank (1876) the Court ruled “the right [to keep and bear arms] was not created by the [second] amendment, neither was its continuance guaranteed, except as against congressional interference.” This means that the right to keep and bear arms was not created by the Second Amendment, the right pre-existed the Second Amendment, and that right would continue to exist even without the Second Amendment. The right to keep and bear arms is, indeed, a fundamental right.
The argument the Solicitor General makes that Heller vs. DC should only be afforded “intermediate scrutiny” is pure governmental arrogance. Anytime any law is considered that potentially restricts any of our Constitutionally guaranteed rights, whether in the legislative process or in judicial review, the principle of “strict scrutiny” should apply. Legislators need to be absolutely sure that whatever benefit they propose is worth the cost of restricting our inalienable rights. The same cost-benefit analysis must be applied when judges review contested laws.
The Solicitor General appears to be playing a bit of CYA here. The Solicitor General is a government functionary whose job is to protect the government, especially in a case where a perceived erosion of government power and authority may occur. The government, and this is the case no matter which party is in charge, wants to maintain its grip on authority. (I realize this sounds cynical, but how many cases can you think of where any government voluntarily gave up power? I can only think of two cases – the collapse of East Germany, and the voluntary split of the Czech Republic and Slovakia.) The current government, represented by the Solicitor General, is afraid the Supreme Court’s decision, if based on strict scrutiny, will nullify a great majority of the current gun laws in affect – federal and state, not just in Washington, D.C. – and result in a tremendous loss of government power.
The Bush administration needs to withdraw the Solicitor General’s amicus brief for further review, research, and study. The Solicitor General’s advisors and staff need to hit the books and review a significant concept that they have previously missed – The Constitution, and especially the Bill of Rights, are specific limits on government, limits adopted by the consent of the governed.
And in the process of re-educating themselves, they need to look up the definition of “shall not be infringed.” ESR
Charles Bloomer is a Contributing Editor for Enter Stage Right. His website is Liberty Call U.S. © 2008 by Charles Bloomer
