11 January 2005

Lock and Load

W is heading down to the corral for a legal showdown over the 2nd Amndmnt . Read the whole piece by Jess Bravin at the WSJ. This will surely have gun-grabbers Sarah Brady, Chuck Schumer, Dianne Feinstein etc. screaming bloody murder.

Fortunately few are listening to them. Americans have a better sense of how important the individually possessed right to keep and bear arms really is post 11SEP01. -SpinDaddy

" . . . Readying for a constitutional [I would argue that this is only a legal showdown, as the constitution speaks quite clearly on the issue. It's just that the gun-grabbers don't like what it says] showdown over gun control, the Bush administration has issued a 109-page memorandum aiming to prove that the Second Amendment grants individuals nearly unrestricted access to firearms . . . Reaching deep into English legal history and the practice of the British colonies prior to the American Revolution, the memorandum represents the administration's latest legal salvo to overturn judicial interpretations that have prevailed since the Supreme Court last spoke on the Second Amendment, in 1939 . . . "

It doesn't take a great deal of Constitutional analysis to determine that this is indeed an individual right. Such a state-milita-only reading as the liberals have long sought to impose on us does not stand up to any test of logic when one considers the rest of the constitution, the preamble and particularly the bill of rights.

Are the first amendment rights to constitutionally protected freedom of religion, peaceable assembly or freedom of the press, the rights of individuals?

What of the fifth amendments due process protections? Do these apply to the state government apparatus of the state of SouthCarolina, or Oregon, or Deleware; or do they apply to individual defendants in criminal precedings??

What of the eighth amendments protections against cruel and unusual punishment?? Do these apply to Missouri, Alaska, and New Hampshire state governments as entities, or do they apply to you??

In the tenth amendment when it reserves all other rights to the states and the people respectively; does this mean that states and people are the same thing? Hardly.

From the opinion issued by OLC - " . . . In any event, any possible doubt vanishes when "right" is conjoined with "the people," as it is in the Second Amendment. Such a right belongs to individuals: The "people" are not a "State," nor are they identical with the "Militia." Indeed, the Second Amendment distinctly [!] uses all three of these terms, yet it secures a "right" only to the "people." The phrase "the right of the people" appears two other times in the Bill of Rights, and both times refers to a personal right, which belongs to individuals. The First Amendment secures "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances," and the Fourth safeguards "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In addition, the Ninth Amendment refers to "rights . . . retained by the people." We see no reason to read the phrase in the Second Amendment to mean something other than what it plainly means in these neighboring and contemporaneous amendments. . ."

Once while at university, in a Sophomore English class of all things, the subject of poorly written compostions came up. The grad student "teaching" the class quickly offered up the 2nd amendment as some of the poorest writing he could think of. Well, it was written by a committee, and as such it may be a little awkward; but that doesn't change its meaning one wit.

" . . .The memo's authors, Justice Department lawyers Steven Bradbury, Howard Nielson Jr. and C. Kevin Marshall, dissect the amendment's language, arguing that under 18th century legal conventions, the clause concerning "a well-regulated militia" was "prefatory language" without binding force. " Thus, the amendment's declaratory preface could not overcome the unambiguously individual 'right of the people to keep and bear arms' conferred by the operative text," they write. They write that the drafters of the amendment envisioned a militia consisting of "all able-bodied white men" in a state, and suggest that they would be expected to keep arms not only if called up by the government but also on their own initiative, perhaps to fight rulers who threatened their liberties. . . "

Perhaps Thomas Jeffersons language from the Virginia house of burgesses would have been better, but the meaning is the same regardless- "Let no free man be debarred the use of arms"

A web site cited in the article references several opinions setting forth positions on various legal issues surrounding the topic.