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Ignoring gun safety is menu for tragedy
The tragic shooting Wednesday night at a Prescott motel that left one man dead defies analysis – or rather leads to only one conclusion.
Greg Prophet, 38, the man who died, and John Angal were longtime friends who were taking the basic pistol course at the Gunsite Academy in Paulden.
Police say the two were practicing drawing, aiming and dry-firing their firearms when Angal shot Prophet. Police say he had not properly cleared his .45 semiautomatic pistol prior to the practice, but he also broke every rule of safety at Gunsite.
At Gunsite Academy, it’s impossible to stand anywhere on the campus and not see the four safety rules posted somewhere. They are at every shooting range, in every bathroom, every classroom and posted along walkways. The pro shop sells the sign to students. It’s on the back of every Gunsite employee’s business card.
They are, including boldface and capital letter emphasis:
• All guns are always loaded.
• Never let the muzzle cover anything which you are not willing to destroy.
• Keep your finger OFF the trigger until your sights are on the target.
• Always be sure of your target.
Anyone who’s ever taken a course at Gunsite knows how forcefully instructors emphasize safety, and legends abound about how quickly some careless students have left the premises.
If police accounts are correct, Angal violated all four and has his best friend’s blood on his hands for the rest of his life, no matter what authorities do with him.
The rules exist for a reason. Ignore them and someone dies.
http://www.communitypapers.com/DAILYCOURIER/myarticles.asp?S=400&PubID=12144&P=909757
This is really sad. I went to Gunsite's CCW class and 80% of the instruction is safety and the rest is legal ramifications. These guys violated every safety rule Gunsite hammers into your head on day one. The NEVER suggest "quick draw" practice, especially with a loaded handgun and NEVER NEVER pointing a gun at anything you don't want to destroy.
‘Quick draw’ practice ends in man’s death
By MIRSADA BURIC-ADAM
The Daily Courier
PRESCOTT – A 38-year-old Mesa man accidentally shot and killed his best friend Wednesday night as they were practicing gun-handling techniques in their Prescott hotel room, Prescott police said.
Both men were attending a firearms class at the Gunsite Academy Inc. in Paulden this week.
Greg Prophet, 38, of Mesa, died at the scene and now John Angal may face charges in connection with his death, which police believe to be a tragic accident, PPD Sgt. Pete Hodap said Thursday.
“It truly did appear to be what Mr. Angal said it was,” he said. “It is tragic because these guys have been friends for at least 10 to 15 years.”
“We let him (Angal) go home last night,” Hodap added. “We had a family member come and pick him up and take him home. It doesn’t mean that he will not be charged later on. At this point, we didn’t see that it was in anybody’s best interest to put this guy in jail.”
Hodap said the reason police let Angal go was because they didn’t believe that he shot the victim intentionally.
“He was definitely reckless, but it was one of his best friends and he was very distraught,” he said.
At around 9 p.m. officers responded to the SpringHill Suites in the 200 block of East Sheldon Street, according to the PPD report.
When officers arrived, they found Prophet on the floor with an apparent gunshot wound to the lower chest, the report says.
Angal told police that the two of them had been attending a firearm class at the Gunsite Academy since Sunday, the report notes.
The two of them went to dinner with another classmate, and when they returned they began practicing ‘quick draw’ techniques in their mutual room, the report says. But before starting the exercise, Angal allegedly failed to clear his .45-caliber semi-automatic handgun, the report says.
At one point, “Angal pointed the weapon at Prophet and the next thing that he knew, the gun went off,” the report says. “Prophet then stated, ‘John, you shot me, call 911’ and fell to the floor.”
Police reportedly executed a search warrant for the room and recovered several handguns with ammunition, the report says.
Hodap said the Yavapai County attorney will determine whether to press any charges against Angal.
“We wrote it (the incident) up as a manslaughter report,” he added.
He said that Angal was trying to resuscitate his friend when they arrived on the scene.
“When our officers got there, he was administering CPR to his friend,” he said.
The report states that two officers joined Angal in that effort until emergency personnel arrived on the scene.
Hodap said that the Yavapai County medical examiner will perform an autopsy on the victim.
Owen Mills, president of Gunsite Academy Inc., said that he doesn’t know much about the shooting because it didn’t happen on the ranch.
“They were not supervised by our personnel and we really do not know what happened,” he said. “They were involved in the beginners class, that is mostly concerned with safety.”
Mills said 24 people have been participating in the class, which concludes today.
Contact the reporter at mburicadam@prescottaz.com
http://www.communitypapers.com/DAILYCOURIER/myarticles.asp?P=908752&S=400&PubID=12134
Sad sad news..
incomplete report on the news of two Gunsite students "practicing quick draw" in the hotel here in town and one being killed by a gun shot. No more details.
Having received my required state CCW training at Gunsite, I can say that those two could not have listened in class and that they violated every safety rule the instructors pound into your head while you are there.
Naturally the anti-gun nuts will jump on the grave and dip their banner in this guy's blood.
Maybe javalina's are nastier than..
regular wild pigs. I've not eatten either.
Husker, you need to come visit them!
Beautiful place!
Matey
Pre,
Have seen 'em that looked like a could hundred pounds and yeah, mean as heck. Lower tusks are flat like knives and about as sharp. Heard that the males are no good to eat. The meat smells bad. Females are OK.
Pre, we have the darned things..
rooting up our landscaping! They run around here like stray cats. Same with mountain lions. People move here from California and let their kitty run loose. next thing you see it a "wanted poster" on stop signs with a picture of missing Tabby. Tabby became part of the food chain, no stray cats here for long! A bud of mine here went Javalina hunting a couple weeks back. Might have to see if there are any flat hunting grounds and put that Model '94 to use. Knee has been good especially since I've been taking Glucosimine. No surgery yet maybe none needed.
Matey
Arizona prayers for the little one NYC!
NYC, you have my phone number and
email address. Come on up and we'll have a couple and dinner at the Prescott Brewery.
Hey nyc,
I talked to my wife about Ruger Ranch and it just opened recently. Were you interested?
I have a bud here who is developing his land. The wife got her real estate office to be his agents. He's just starting with the infrastructure, all exclusive executive-type homes. Gonna be called the "North 40" I think, since it is 40 acres.
Any interests?
Matey
Juddrow, I have several handguns..
but my favorites are the Govt .45 that I took my CCW training with and next is my .45 long Colt Vaquero. Can hit an 18 inch swinging metal plate at 200 yards with it maybe 7 out of 10 rounds, huh nyc!
Matey Earp
Wow! Navy Seals no doubt!
An old Vaquero saying for the 1800's
Nyc, never eat at a cafe called Mom's.
Never play cards with a man called Doc.
I saw a 1980 lb pig once....
she butchered the national anthem at a ball game once.
I'll treasure it forever nyc.
Ya drives right past Mono!
What did I win?
At MF it said guess correctly and win a prize!
Nyc, have seen Mono Lake from Whitney Portal AND from them mountains on the far side on the way up to Cerro Gordo and Saline Valley.
Been around the block a few times myself
C'mon nyc, you "ax'd" what lake was behind you..
on the "pichur" on My Fam. I said Mono, but you haven't replied.
I won, huh?
Matey
Busy with traveling and helping the Missus with her real estate venture.
Matey
The secret?
Smaller hook, pink power bait and not slipping on the ice!
A couple of years ago...
our friends joined my wife and I at a lakeside cabin for a long weekend near Pinetop, Arizona. It was about this time of year so heavy frost and crisp mornings were the rule.
Being an early riser, I'd go out the the fishing pier and try my luck at some of the many trout feeding as the sun rose. While having initially bad luck I was treated to a great bald eagle swooping down out of the trees and snatching one of the elusive fish just yards from where I stood. He'd fly across the lake to a tall tree and enjoy his breakfast.
Every morning I got to watch this beautiful moment and finally convince everyone else to get up early enough to see it. I finally learned the secret of this lake and had a fine stinger of healthy trout which we cooked up and enjoyed.
Need to go back and do that again.
Matey
The Second Amendment Law Library originally created by Mark Fuller and Steve West, formerly at www.2ndlawlib.org, has unfortunately closed. The Library's Law Reviews and Court Decisions sections are reproduced here.
Law Reviews
Featuring law journal articles on the Second Amendment. (Click on the above "Law Reviews" section header.)
Latest arrivals:
Michael Steven Green, The Paradox of Auxiliary Rights: The Privilege Against Self-Incrimination and the Right to Keep and Bear Arms. "[S]o long as one adheres to the Founders’ Lockean ideal of governmental authority limited by natural rights... courts will never be able to determine their scope in a coherent fashion. The limits courts place on these rights will always appear arbitrary and conceptually unmotivated."
J. Norman Heath, Exposing the Second Amendment: Federal Preemption of State Militia Legislation. Mr. Heath's well-researched article shows that "[t]he 'states' right' alleged to reside in the amendment vanishes when exposed to the light of" two centuries of Supreme Court militia jurisprudence and contradicts many lower federal court gun cases.
Court Decisions
State, federal and Supreme Court decisions on the right to arms.
Other OnLine Sources
Additional Second Amendment Law Review Articles - from the Second Amendment Foundation.
Documents on the First Congress Debate on Arms and Militia - a compilation of all the debates and all of the changes made in Congress concerning the creation of the Second Amendment. (It is relatively short because there is not much recorded debate. However, the debate that there is and the changes they made in the language are instructive.)
THE DEBATES IN THE SEVERAL STATE CONVENTIONS - These debates on ratification occurred prior to the creation of the Bill of Rights. The debates concerned the relative defects that were perceived in the Constitution. It is from these debates that the concept for a Bill of Rights and the Second Amendment were born. This debate continued in a series of articles writen by persons supportive of the Constitution -- called "Federalists" and authored by James Madison, Alexander Hamilton and John Jay (The Federalist Papers) -- and a series of articles written by persons opposed to the Constitution -- called Anti-Federalists and written in part by Patrick Henry, Richard Henry Lee, and Melancton Smith (The Anti-Federalist Papers [see also this Anti-Federalist page]).
http://www.guncite.com/2ndlawlib.html
A Second Amendment Analogue
Introduction
An amendment similar in structure to the Second Amendment is discussed.
An Analogue
"A well-educated electorate being necessary to the preservation of a free society, the right of the people to read and compose books shall not be infringed."
Obviously this does not mean that only well-educated voters have the right to read or write books. Nor does it mean that the right to read books of one's choosing can be restricted to only those subjects which lead to a well-educated electorate.
The purpose of this provision is: although not everyone may end up being well-educated, enough people will become well-educated to preserve a free society.
Nor can it be construed to deny one's pre-existing right to read books if there are not enough well-educated people to be found. The right to read books of one's choosing is not granted by the above statement. The rationale given is only one reason for not abridging that right, there are others as well.
Similarly the Second Amendment states, the people from whom a necessary and well-regulated militia will be composed, shall not have their right to keep and bear arms infringed.
It was the Founders' desire "that every man be armed" such that from the "whole body of the people" (militia) a sufficient number would serve in the well-regulated militia.
"Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States."
--- Noah Webster of Pennsylvania, An Examination of the Leading Principles of the Federal Constitution, Philadelphia, 1787
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"The Original Right of Self-defense"
Preface
The misconception that the Second Amendment does not protect an individual right and that the right to keep and bear arms does not entail a right to rebel (against an usurpation of a constitutional government) is refuted.
It's the People, Stupid!
There are those who deny the Second Amendment protects an individual right, and insist it is a right of the people to posses arms only while they are associated with state militias or the National Guard, and only while on active duty.
As evidence the Founders intended to preserve an individual right to keep arms, the pro-individual rights camp typically quotes from James Madison's Federalist No. 46 as follows:
[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms.
It is often asserted that this excerpt is quoted out of context.
The passage in question is presented again, with the words that are supposed to indicate a "collective" or state's right to keep arms, emphasized:
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments,to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.
How can anyone possibly construe the above passage to mean the people as individuals weren't allowed to keep their own arms? Of course the militia was subject to state and national control. An orderly militia could not function in any other way! To do so otherwise is a recipe for constant chaos and anarchy. The people as Madison states, not the government, were to be trusted with arms. Remember Madison writes, "...the governments [of Europe] are afraid to trust the people with arms". There is only one way to read that phrase; it is clearly the right of individuals to keep and bear arms. Madison also sanctions the right of the people to overthrow a tyrannical government with their own arms under the control of government "chosen by themselves". Alexander Hamilton discusses this right in more detail as we'll see later.
For those who haven't read the previous sections on this site and are thinking "Aha! What about the well-regulated militia part?": In Federalist No. 29, Alexander Hamilton clearly states membership in a well-regulated militia is not required for the right to keep arms.
What plan for the regulation of the militia may be pursued by the national government is impossible to be foreseen...The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution... Little more can reasonably be aimed at with the respect to the people at large than to have them properly armed and equipped ; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
"The Original Right of Self-Defense"
The "collective" rights fantasists argue further that since the people are attached to a state militia, which is attached to a local government (a state), the right to keep and bear arms does not include a right to defend against an usurpation of the government. Moreover, how could such a right exist when the Constitution delegates control of the militia to the federal government, and one of the purposes of the militia is to suppress insurrections?
The "collective" rights theory fails to take into account the full system of checks and balances intended and inherent in our system. The Founders realized that insurrections may occur from time to time and it is the militia's duty to suppress them. They also realized that however remote the possibility of usurpation was, the people with their arms, had the right to restore their republican form of government by force, if necessary, as an extreme last resort.
This claim is not made out of thin air. We will now examine Hamilton's Federalist No. 28. Hamilton begins:
That there may happen cases in which the national government may be necessitated to resort to force cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes exist in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government) has no place but in the reveries of these political doctors whose sagacity disdains the admonitions of experimental instruction.
Here Hamilton simply states the national government may occasionally have to quell insurrections and it is certainly justified in doing so.
Hamilton then goes on to say:
If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.
Hamilton clearly states there exists a right of self-defense against a tyrannical government, and it includes the people with their own arms. However, Hamilton argues that under a national government the above situation should be rendered extremely unlikely to occur:
[T]he people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!
There is nothing left of the state rights fantasy after reading the above paragraph. In the unlikely event that a state or the national government is overcome by tyrannical forces, it is the people who are free to choose their "instrument of redress". It is the people that are in possession of all forms of power, whether through the franchise or through arms. In other words the people, yes as individuals, are the ultimate check in a system of checks and balances.
Though the Federalist Papers were written prior to the drafting of the Bill of Rights (but after the Constitution had been sent to the states for ratification), Hamilton's comments clearly state the relationships that were understood between a well regulated militia, the people, and their governments. The idea that the Second Amendment was meant to protect a state's organized militia and nothing else is refuted.
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http://www.guncite.com/gc2ndpeo.html
Quotes from Constitutional Commentators
Introduction
Quotes from St. George Tucker, William Rawle, Justice Story, and Thomas Cooley appear here.
St. George Tucker
The following is excerpted from The Right to Arms: Does the Constitution or the Predilection of Judges Reign? by Robert Dowlut (Copyright © 1983 Oklahoma Law Review).
Saint George Tucker (1752-1828) served as a colonel in the Virginia militia, was wounded in the Revolutionary War, was a law professor at William and Mary, and later was a justice on the Virginia Supreme Court from 1804 to 1811. He was also a friend of Thomas Jefferson. In 1803 he published a five-volume edition of Blackstone's Commentaries on the Laws of England.
To Blackstone's listing of the "fifth and last auxiliary right of the subject ... that of having arms ... suitable to their condition and degree, and such as are allowed by law," Tucker in a footnote added: "The right of the people to keep and bear arms shall not be infringed." He cited the second amendment, noting that it is "without any qualification as to their condition or degree, as is the case in the British government." He added: "Whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England." In discussing the second amendment, Tucker wrote:
"This may be considered as the true palladium of liberty .... The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorize the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty."
Tucker thus merged self-defense, prevention of standing armies, and protection from oppression all into a single concept--the generalized right of keeping and bearing arms as protected by the second amendment.
More St. George Tucker from the appendix of Blackstone's Commentaries on the Laws of England (1803),
"Here, let us again pause, and reflect, how admirably this division, and distribution of legislative power is adapted to preserve the liberty, and to promote the happiness of the people of the United States... Fifthly, and lastly; by the separation of the judiciary from the legislative department; and the independence of the former, of the control, or influence of the latter, in any case where any individual may be aggrieved or oppressed, under colour of an unconstitutional act of the legislature, or executive. In England, on the contrary, the greatest political object may be attained, by laws, apparently of little importance, or amounting only to a slight domestic regulation: the game-laws, as was before observed, have been converted into the means of disarming the body of the people:..."
"The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit any prohibition of arms to the people;..."
"If, for example, a law be passed by congress, prohibiting the free exercise of religion, according to the dictates, or persuasions of a man's own conscience or abridging the freedom of speech, or of the press; or the right of the people to assemble peaceably, or to keep and bear arms; it would, in any of these cases, be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused from any penalty which might be annexed to the breach of such unconstitutional act."
William Rawle
In 1791 William Rawle was appointed as a United States Attorney for Pennsylvania by President George Washington, a post he held for more than eight years. He had also been George Washington's candidate for the nation's first attorney general, but Rawle declined the appointment. Rawle's "A View of the Constitution of the United States of America" (1829), was adopted as a constitutional law textbook at West Point and other institutions. He describes the scope of the Second Amendment's right to keep and bear arms. (Rawle's comments quoted from Halbrook, Stephen P., That Every Man Be Armed: The Evolution of a Constitutional Right, University of New Mexico Press, 1984.)
"the powers not delegated to congress by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people[quoting the 10th Amendment]. What we are about to consider are certainly not delegated to congress, nor are they noticed in the prohibitions to states; they are therefore reserved either to the states or to the people. Their high nature, their necessity to the general security and happiness will be distinctly perceived."
"In the second article, it is declared, that a well regulated militia is necessary to a free state; a proposition from which few will dissent. Although in actual war, in the services of regular troops are confessedly more valuable; yet while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulation as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest."
"The corollary, from the first position, is that the right of the people to keep and bear arms shall not be infringed."
"The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to 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."
"In most of the countries of Europe, this right does not seem to be denied, although it is allowed more or less sparingly, according to circumstances. In England, a country which boasts so much of its freedom, the right was secured to protestant subjects only, on the revolution of 1688; and is cautiously described to be that of bearing arms for their defence,'suitable to their conditions, and as allowed by law.' An arbitrary code for the preservation of game in that country has long disgraced them. A very small proportion of the people being permitted to kill it, though for their own subsistence; a gun or other instrument, used for that purpose by an unqualified person, may be seized and forfeited. Blackstone, in whom we regret that we cannot always trace expanded principles of rational liberty, observes however, on this subject, that the prevention of popular insurrections and resistance to government by disarming the people, is oftener meant than avowed, by the makers of forest and game laws."
Rawle stresses the importance of the militia as a safeguard against a standing army, but he is also clear in pointing out that the right of individuals to keep and bear arms, shall not be infringed, period, regardless of usage, as it was arbitrarily restricted by hunting laws in England.
Over time, it is the fusion of the militia clause and the broad scope of the right to keep and bear arms that has caused many people to misunderstand the Second Amendment. Many of the Founders and commentators were concerned about the militia, but this was never meant to restrict the right to keep and bear arms to military purposes only. Remember the prohibition against infringement was meant to be "general"
Joseph Story
Justice Story was appointed to the Supreme Court as an Associate Justice by James Madison in 1811. In 1833 he wrote, "Commentaries on the Constitution of the United States" His comments on the Second Amendment follow.
"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.(1) And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid." _______________________________
(1) 1 Tucker's Black. Comm. App. 300; Rawle on Const. ch. 10, p. 125; 2 Lloyd's Debates, 219, 220.
Thomas Cooley
Michigan Supreme Court Justice Thomas Cooley was probably the leading constitutional commentator of the late 1800s. In 1898 he wrote Principles of Constitutional Law. He comments below on the right to keep and bear arms.
"The Constitution. -- By the Second Amendment to the Constitution it is declared that "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 amendment, like most other provisions in the Constitution, has a history. It was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people, and as a pledge of the new rulers that this tyrannical action should cease. The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation."
"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 elsewhere explained, 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. But the law may make provision for the enrollment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or 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 the purpose, but this enables the government to have a well regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order."
"Standing Army. -- A further purpose of this amendment is, to preclude any necessity or reasonable excuse for keeping up a standing army. A standing army is condemned by the traditions and sentiments of the people, as being as dangerous to the liberties of the people as the general preparation of the people for the defence of their institutions with arms is preservative of them."
"What Arms may be kept. -- The arms intended by the Constitution are such as are suitable for the general defence of the community against invasion or oppression, and the secret carrying of those suited merely to deadly individual encounters may be prohibited."
Note, Thomas Cooley writes concealed carry of certain weapons may be prohibited. Yet pistols have always been militia type weapons. Does this mean it's okay by Cooley to carry concealed a militia type pistol, but not a "Saturday Night Special?"
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Quotes from the Founding Fathers and Their Contemporaries
Introduction
A pinch of wisdom from the Founders with a dash of commentary.
A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks.
--- Thomas Jefferson to Peter Carr, 1785. The Writings of Thomas Jefferson, (Memorial Edition) Lipscomb and Bergh, editors.
One loves to possess arms, though they hope never to have occasion for them.
--- Thomas Jefferson to George Washington, 1796. The Writings of Thomas Jefferson, (Memorial Edition) Lipscomb and Bergh, editors.
We established however some, although not all its [self-government] important principles . The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed;
---Thomas Jefferson to John Cartwright, 1824. Memorial Edition 16:45, Lipscomb and Bergh, editors.
No freeman shall ever be debarred the use of arms.
---Thomas Jefferson: Draft Virginia Constitution, 1776.
The thoughtful reader may wonder, why wasn't Jefferson's proposal of "No freeman shall ever be debarred the use of arms" adopted by the Virginia legislature? Click here to learn why.
They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.
---Benjamin Franklin, Historical Review of Pennsylvania, 1759.
To model our political system upon speculations of lasting tranquility, is to calculate on the weaker springs of the human character.
---Alexander Hamilton
Quotes from the Founders During the Ratification Period of the Constitution
[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms.
---James Madison,The Federalist Papers, No. 46.
To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws.
---John Adams, A Defence of the Constitutions of the United States 475 (1787-1788)
John Adams recognizes the fundamental right of citizens, as individuals, to defend themselves with arms, however he states militias must be controlled by government and the rule of law. To have otherwise is to invite anarchy.
The material and commentary that follows is excerpted from Halbrook, Stephen P. "The Right of the People or the Power of the State Bearing Arms, Arming Militias, and the Second Amendment". Originally published as 26 Val. U. L.Rev. 131-207, 1991.
Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.
---Noah Webster, An Examination of the Leading Principles of the Federal Constitution (Philadelphia 1787).
Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American...[T]he 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.
---Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.
During the Massachusetts ratifying convention William Symmes warned that the new government at some point "shall be too firmly fixed in the saddle to be overthrown by anything but a general insurrection." Yet fears of standing armies were groundless, affirmed Theodore Sedwick, who queried, "if raised, whether they could subdue a nation of freemen, who know how to prize liberty, and who have arms in their hands?"
[W]hereas, 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; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.
---Richard Henry Lee, The Pennsylvania Gazette, Feb. 20, 1788.
The Virginia ratifying convention met from June 2 through June 26, 1788. Edmund Pendleton, opponent of a bill of rights, weakly argued that abuse of power could be remedied by recalling the delegated powers in a convention. Patrick Henry shot back that the power to resist oppression rests upon the right to possess arms:
Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined.
Henry sneered,
O sir, we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves, are gone...Did you ever read of any revolution in a nation...inflicted by those who had no power at all?
More quotes from the Virginia convention:
[W]hen the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually...I ask, who are the militia? They consist of now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor...
---George Mason
Zacharia Johnson argued that the new Constitution could never result in religious persecution or other oppression because:
[T]he people are not to be disarmed of their weapons. They are left in full possession of them.
The Virginia delegation's recommended bill of rights included the following:
That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.
The following quote is from Halbrook, Stephen P., That Every Man Be Armed: The Evolution of a Constitutional Right, University of New Mexico Press, 1984.
The whole of that Bill [of Rights] is a declaration of the right of the people at large or considered as individuals...t establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of.
---Albert Gallatin to Alexander Addison, Oct 7, 1789, MS. in N.Y. Hist. Soc.-A.G. Papers, 2.
Gallatin's use of the words "some rights," doesn't mean some of the rights in the Bill of Rights, rather there are many rights not enumerated by the Bill of Rights, those rights that are listed are being established as unalienable.
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Supreme Court Cases
Summary
The Supreme Court has heard only five cases directly related to the Second Amendment. They are: U.S. v. Cruikshank (1876), Presser v. Illinois (1886), Miller v. Texas (1894), U.S. v. Miller (1939), and Lewis v. U.S. (1980). One the Supreme Court refused to hear, Burton v. Sills (1968), and one concerning the meaning of the Fourth Amendment and "the people," U.S. v. Verdugo-Urquidez (1990), are also discussed. (Links to the Supreme Court decisions are provided at the end of each section.)
U.S. v. Cruikshank involved members of the Ku Klux Klan depriving black victims of their basic rights such as freedom of assembly and to bear arms. The court decided that neither the First nor Second Amendments applied to the states, but were limitations on Congress. Thus the federal government had no power to correct these violations, rather the citizens had to rely on the police power of the states for their protection from private individuals.
This case is often misunderstood or quoted out of context by claiming Cruikshank held the Second Amendment does not grant a right to keep and bear arms. However, the court also said this about the First Amendment. The court explained that these rights weren't granted or created by the Constitution, they existed prior to the Constitution.
Presser v. Illinois ruled that the states had the right to strictly regulate private military groups and associations. It also reaffirmed the Cruikshank decision that the Second Amendment acts as a limitation upon the federal government and not the states. However Presser also stated that setting the Second Amendment aside, the states could not prohibit the "people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security..."
Of the Second Amendment cases, U.S. v. Miller is the most mis-cited (intentionally and otherwise) by the lower courts, not to mention the news media, textbooks and encyclopedias. Some courts have acknowledged the true holdings of Miller, but then simply disregarded them. Though referenced again below, please don't forget to read how some courts deliberately mis-cite Miller.
U.S. v. Cruikshank (1876)
Cruikshank was the first Second Amendment case to reach the Supreme Court. This case is occasionally misrepresented as holding the Second Amendment does not protect an individual right to keep and bear arms. Typically, Cruickshank is cited out of context by claiming the court held the Second Amendment "is not a right granted by the Constitution." (For example, see U.S. v. Nelsen, 859 F.2d 1318 [8th Cir. 1988] or the ACLU of Massachusetts on the Second Amendment.)
What you are not told is that the same thing was said about the First Amendment and the Court considered these rights pre-existing, thus they are not granted by the Constitution.
Among the counts against Cruikshank et. al, were charges to deprive two blacks of their First and Second Amendment rights. Regarding the First Amendment charges the court stated:
The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government... It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection...
The first amendment to the Constitution prohibits Congress from abridging "the right of the people to assemble and to petition the government for a redress of grievances." This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone...
...For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.
Similarly regarding the Second Amendment violations the court wrote:
The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called..."internal police."
In brief, following precedent, the court stated the Bill of Rights only applied as a limitation on the "National government." Individuals could not file charges against other citizens in federal court regarding violations of their constitutional rights. It was up to the states to protect the fundamental rights of its citizens when their rights were abridged by other citizens.
Complete text of U.S. v. Cruikshank, 92 U.S. 542 (1875).
Presser v. People of Illinois (1886)
Herman Presser was found guilty of parading a group of armed men without authorization in the state of Illinois. The defendant had tried to claim this was unconstitutional and violated his Second Amendment rights as well. The court ruled the states have the power to control and regulate military bodies, including drilling and parading activities. Though the court stated Second Amendment issues were not involved, it re-affirmed that it applied as a limitation only on the national government. However the court then stated in dicta (a side opinion which does not form part of the judgment for the purposes of precedent [stare decisis] ):
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States; and, in view of this prerogative of the General Government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view [the Second Amendment] prohibit the people from keeping and bearing arms, so as 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.
Thus the Presser court expressed the belief that the right to keep and bear arms existed independently of the Second Amendment for "all citizens capable of bearing arms," and the states could not infringe upon this right.
Complete text of Presser v. Illinois, 116 U.S. 252 (1886).
Miller v. Texas (1894)
Franklin Miller, convicted of murder, on appeal, claimed his Second and Fourth Amendment rights had been violated under the Fourteenth Amendment. The court upholding the conviction, reaffirmed Cruikshank v. U.S. and stated: "And if the fourteenth amendment limited the power of the states as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court." In other words the court wouldn't even consider whether Miller's rights had been violated under the Fourteenth Amendment because he had not filed such a claim in his original trial.
Complete text of Miller v. Texas, 153 U.S. 535 (1894).
U.S. v. Miller (1939)
Frank Layton and Jack Miller were charged with violating the 1934 National Firearms Act, which regulated and taxed the transfer of certain types of firearms, and required the registration of such arms. The Miller court held the following:
1) The National Firearms Act was not an unconstitutional usurpation of police power reserved to the states.
2) "In the absence of evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length,' which is the subject of regulation and taxation by the National Firearms Act of June 26, 1934, has some reasonable relationship to the preservation or efficiency of a well-regulated militia, it cannot be said the the Second Amendment to the Federal Constitution guarantees the right to keep and bear such an instrument, or that the statute violates such constitutional provision."
3) "It is not within judicial notice that a shotgun having a barrel of less than 18 inches in length is any part of the ordinary military equipment or that its use could contribute to the common defense."
4) "The Second Amendment must be interpreted and applied with a view to its purpose of rendering effective the Militia."
As noted in the Summary section, Miller has often been mis-cited. Note that in the entire text of Miller, neither the words "state militia" nor "National Guard" are to be found.
Regarding item 4) above, the Miller court defined the Militia as the following:
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily 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.
Attempting to interpret the above paragraph, a law journal article writes,
while far from clear, this passage is not inhospitable to the view that it is a private individual right to keep and bear arms which is protected. For only if there existed such a "body of citizens" in possession of "arms supplied by themselves," could they, should the need arise, be "enrolled for military discipline" to act "in concert for the common defense." (Barnett R., and Kates D., Under Fire: The New Consensus on the Second Amendment, Emory Law Journal [1996].)
Commenting on the significance of the phrase "enrolled for military discipline," law professor Nelson Lund, in another law journal article explains:
This phrase does not conflict with the preceding sentence in the passage from Miller, for "enrollment" in the militia does not imply or depend on actual military service or training. Under the first Militia Act, for example, those subject to militia duty were enrolled by the local commanding officer, and then notified of that enrollment by a non-commissioned officer. § 1, 1 Stat. 271, 271 (1792). Whether the members carried out their duties or not, they were still "enrolled." Under the statute in effect at the time Miller was decided (as in the statute in force today), enrollment was accomplished by the operation of law alone, and most members of the militia were probably not even aware that they belonged to such a body. National Defense Act, ch. 134, § 57, 39 Stat. 166, 197 (1916); 10 U.S.C. § 311(a) (1994). Thus, neither the Miller opinion nor any of the various militia statutes can be used to shore up the insupportable notion that the Second Amendment protects only a right to serve in the National Guard. (Lund, Nelson, The Past and Future of the Individual's Right to Arms, [Footnote 54], Georgia Law Review [1996].)
The Supreme Court reversed and remanded the case back to the district court, giving the defendants a chance to provide evidence that a short-barrelled shotgun could contribute to "the efficiency of a well-regulated militia." (The Court was apparently unaware of the use of short-barreled shotguns in trench warfare during World War I. [http://nraila.org/FactSheets.asp?FormMode=Detail&ID=17] )
Note, Miller only required evidence that the weapon contribute to the efficiency of a well-regulated militia. The Court never said the defendants had to belong to a well-regulated militia. In other words the Miller case interpreted the Second Amendment to mean one has the right to own militia type weapons.
The defendants had not appeared for their Supreme Court hearing and they had no legal representation as well! Miller was murdered in April of 1939 (one month before the Court's decision). After the decision, Layton pleaded guilty to transporting a sawed-off shotgun, and received five year's probation. [http://rkba.org/research/miller/Miller.html] ) And so even though the case had been remanded, it was never tried in the lower courts.
In its brief the U.S. government argued the "collective rights" theory. (See GunCite's rebuttal to the U.S. government's brief.)
More importantly please read how the Miller case has been mis-cited by some federal courts and how some rulings are simply based on judges own feelings, desires, and values rather than the rule of law and valid evidence.
Though some circuit courts have adopted a "collective rights" theory of Miller (see the link in the previous paragraph), the first circuit court to analyze Miller held a weapon centric view of the case. However, it did not feel "that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases" because it would "in effect hold that the limitation of the Second Amendment is absolute." (Cases v. U.S., 131 F.2d 916 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943).)
Many years later, Justice Hugo Black (one of the judges who decided Miller), commenting on the Second Amendment said,
Although the Supreme Court has held this Amendment to include only arms necessary to a well-regulated militia, as so construed, its prohibition is absolute. (Black, Hugo, The Bill of Rights, New York University Law Review, Vol. 35, April 1960.)
A criticism of the Miller decision itself.
Complete text of U.S. v. Miller, 307 U.S. 174 (1939).
Lewis v. U.S. (1980)
Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 forbids the possession of firearms by a convicted felon. Lewis, the petitioner, was convicted of a felony in a 1961 state court "for breaking and entering with intent to commit a misdemeanor". In 1977, in Virginia, Lewis was charged with receiving and possessing a firearm in violation of the above act. Lewis, claimed his latest conviction violated the Fifth and Sixth Amendments because he had no counsel present during his 1961 trial.
The court upheld Lewis' conviction, holding:
(a)...the fact that there are remedies available to a convicted felon - removal of the firearm disability by a qualifying pardon or the Secretary of the Treasury's consent, as specified in the Act, or a challenge to the prior conviction in an appropriate court proceeding - suggests that Congress intended that the defendant clear his status before obtaining a firearm, thereby fulfilling Congress' purpose to keep firearms away from persons classified as potentially irresponsible and dangerous.
(b) The firearm regulatory scheme at issue here is consonant with the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment, since Congress could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm. And use of an uncounseled felony conviction as the basis for imposing a civil firearms disability, enforceable by criminal sanction, is not inconsistent with Burgett v. Texas, 389 U.S. 109; United States v. Tucker, 404 U.S. 443; and Loper v. Beto, 405 U.S. 473.
In a footnote the court stated:
These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U.S. 174, 178 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to [445 U.S. 55, 66] the preservation or efficiency of a well regulated militia").
Note, the Court restated the Miller court's focus on the type of firearm.
The Court also commented it was customary to deny convicted felons the right to vote, hold union office, or practice medicine.
Complete text of Lewis v. U.S., 445 U.S. 55 (1980).
Burton v. Sills (1985)
From Stephen Halbrook's "That Every Man be Armed: The Evolution of a Constitutional Right":
A...striking erosion of the right to possess arms was exemplified in the New Jersey case of Burton v. Sills (1968). It originated when members of sportsman clubs and gun dealers brought an action to declare unconstitutional the state's gun-control law, which imposed restrictive requirements. Conjuring up an image of "political assassinations, killings of enforcement officers, and snipings during riots," the court expressed exaggerated fears of a revolution. The New Jersey Supreme Court restricted the definition of militia to "the active, organized militias of the states," that is, the National Guard. The court's very use of these adjectives to modify the word "militia" ignores the constitutional militia comprised of all persons capable of bearing arms. The Burton opinion simply fails to provide scholarly, historical, and analytical treatment of the subject, as indeed primarily only the antebellum state opinions do provide.
Complete text of Burton v. Sills (1968).
U.S. v. Verdugo-Urquidez (1990)
This case dealt with whether nonresident aliens, located in a foreign country, were entitled to Fourth Amendment rights. The Court ruled they were not. In discussing the meaning of "the people" in the Fourth Amendment, the Court commented:
" '[T]he people' seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by 'the people of the United States.' The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.' See also U.S. Const., Amdt. 1 ('Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble') (emphasis added); Art. I, 2, cl. 1 ('The House of Representatives shall be composed of Members chosen every second Year by the people of the several States') (emphasis added). While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. "
Therefore the Court viewed "the people" in the Second Amendment to have the same meaning as in the First, Fourth, Ninth, and Tenth amendments. Many "pro-gun" groups cite this case as resolving "any doubt that the Second Amendment guarantees an individual right" (National Rifle Association, Fact Sheet: Federal Court Cases Regarding the Second Amendment).
However, the Court didn't discuss whether the militia clause is a limiting factor, and how it might restrict the people's right to keep and bear arms. Moreover, in U.S. v. Hale, 978 F.2d 1016 (8th Cir. 1992), the Eighth Circuit stated:
"Citing dicta from United States v. Verdugo-Urquidez, 494 U.S. 259, 265 ... Hale argues that the Second Amendment protections apply to individuals and not to states or collective entities like militias. This argument is inapplicable to this case. The purpose of the Second Amendment is to restrain the federal government from regulating the possession of arms where such regulation would interfere with the preservation or efficiency of the militia ... Whether the 'right to bear arms' for militia purposes is [Page 24] 'individual' or 'collective' in nature is irrelevant where, as here, the individual's possession of arms is not related to the preservation or efficiency of a militia. Id. at 1020."
The Supreme Court denied an appeal of Hale. For a brief criticism of Hale click here.
On a concluding side-note:
"Interestingly, the majority opinion's analysis of 'the people' protected by the Bill of Rights was an elaboration of a point made by the dissenting opinion from the Ninth Circuit Court of Appeals, when the majority had held that Mr. Verdugo was entitled to Fourth Amendment protections. When the Verdugo case went to the Supreme Court, the Solicitor General's office quoted from Ninth Circuit's dissent, but used ellipses to remove the dissent's reference to the Second Amendment. The Supreme Court majority, of course, put the Second Amendment back in."
--- The Supreme Court's Thirty-five Other Gun Cases. By David B. Kopel. Forthcoming in the St. Louis University Public Law Review.
Complete text of United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
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The Early Supreme Court
Although the Supreme Court did not directly address the meaning of the Second Amendment in the 19th Century, in dicta, the Court stated (Presser v. Illinois, 116 U.S. 252 [1886]):
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government...the States cannot, even laying the constitutional provision in question [the Second Amendment] out of view, prohibit the people from keeping and bearing arms, so as 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.
At the time of this decision the entire Bill of Rights was considered inapplicable to the states. It served as a limitation upon only the federal government (Barron v. Baltimore, 1833). Regardless of this limitation, the Presser court wrote that the right to keep and bear arms existed for "all citizens capable of bearing arms" and the states could not infringe upon this right.
More information regarding Supreme Court cases.
THE RIGHT OF THE PEOPLE OR THE POWER
OF THE STATE: BEARING ARMS, ARMING
MILITIAS, AND THE SECOND AMENDMENT
Original Intent and Purpose of the Second Amendment
Summary
The original intent and purpose of the Second Amendment was to preserve and guarantee, not grant the pre-existing right of individuals, to keep and bear arms. Although the amendment emphasizes the need for a militia, membership in any militia let alone a well regulated one, is not required to exercise the right to keep and bear arms.
Introduction
The Second Amendment:
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.
One does not have to belong to a well regulated militia in order to have the right to keep and bear arms. The militia clause is merely one, and not the only, rationale for preserving the right. The Founders were expressing a preference for a militia over a standing army. Even if today's well regulated militia were the National Guard, the Second Amendment still protects an individual right to keep and bear arms.
There is no evidence from the writings of the Founding Fathers, early American legal commentators, or pre-twentieth century Supreme Court decisions, indicating that the Second Amendment applied only to members of a well regulated militia or that the sole purpose of this amendment was to preserve the right of states to keep their militias.
Evidence of an Individual Right
In his popular edition of Blackstone's Commentaries on the Laws of England (1803), 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.
In the appendix to the Commentaries, Tucker elaborates further:
This may be considered as the true palladium of liberty... The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.
Tucker's remarks are solid evidence that the militia clause was not the sole reason for preserving the right of the people to keep and bear arms. Tucker specifically mentions self-defense. This indicates two things: The scope of the right to keep and bear arms was not restricted to military purposes or the common defense (just such a provision was rejected by the Senate), and that "the people" means individuals, not a collective entity, and not a state.
(William Blackstone was an English jurist who published Commentaries on the Laws of England, in four volumes between 1765 and 1769. Blackstone is credited with laying the foundation of modern English law and certainly influenced the thinking of the American Founders.)
In the Federalist Papers, No. 29, Alexander Hamilton clearly states membership in a well regulated militia is not required for the right to keep arms:
What plan for the regulation of the militia may be pursued by the national government is impossible to be foreseen...The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution... Little more can reasonably be aimed at with the respect to the people at large than to have them properly armed and equipped ; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
---The Federalist Papers, No. 29.
After James Madison's Bill of Rights was submitted to Congress, Tench Coxe (see also: Tench Coxe and the Right to Keep and Bear Arms, 1787-1823) published his "Remarks on the First Part of the Amendments to the Federal Constitution," in the Federal Gazette, June 18, 1789 He asserts that it's the people (as individuals) with arms, who serve as the ultimate check on government:
As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.
"Coxe's defense of the amendments was widely reprinted. A search of the literature of the time reveals that no writer disputed or contradicted Coxe's analysis that what became the Second Amendment protected the right of the people to keep and bear "their private arms." The only dispute was over whether a bill of rights was even necessary to protect such fundamental rights." (Halbrook, Stephen P. "The Right of the People or the Power of the State Bearing Arms, Arming Militias, and the Second Amendment". Originally published as 26 Val. U. L.Rev. 131-207, 1991).
Earlier, in The Pennsylvania Gazette, Feb. 20, 1788, while the states were considering ratification of the Constitution, Tench Coxe wrote:
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.
William Rawle's "A View of the Constitution of the United States of America" (1829), was adopted as a constitutional law textbook at West Point and other institutions. In Chapter 10 he 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.
This is another quote where it is obvious that "the people" means individuals since Rawle writes neither the states nor the national government has legitimate authority to disarm its citizens.
(In 1791 William Rawle was appointed as a United States Attorney for Pennsylvania by President George Washington, a post he held for more than eight years. He was also George Washington's candidate for the nation's first attorney general, but Rawle declined the appointment.)
A lengthier quote from Rawle, and more quotes from St. George Tucker are presented in the quotes from commentators section.
More quotes from the Founding Fathers.
The Early Supreme Court
Although the Supreme Court did not directly address the meaning of the Second Amendment in the 19th Century, in dicta, the Court stated (Presser v. Illinois, 116 U.S. 252 [1886]):
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government...the States cannot, even laying the constitutional provision in question [the Second Amendment] out of view, prohibit the people from keeping and bearing arms, so as 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.
At the time of this decision the entire Bill of Rights was considered inapplicable to the states. It served as a limitation upon only the federal government (Barron v. Baltimore, 1833). Regardless of this limitation, the Presser court wrote that the right to keep and bear arms existed for "all citizens capable of bearing arms" and the states could not infringe upon this right.
More information regarding Supreme Court cases.
Individual Rights and the Militia
The militia clause was never meant to limit the right to keep and bear arms. Rather it was the "chief political reason for guaranteeing the right against governmental infringement. Keeping and bearing arms would be protected for all lawful purposes, but self-defense, hunting, shooting at the mark (i.e., target shooting), and other nonpolitical purposes had no place in a federal Constitution which delegated no power to regulate these activities. Since Congress could raise and support armies, the superiority of the militia in securing a "free" country must be declared." See Halbrook, Stephen P. "The Right of the People or the Power of the State Bearing Arms, Arming Militias, and the Second Amendment". Originally published as 26 Val. U. L.Rev. 131-207, 1991).
The following is excerpted from To Keep and Bear Arms: The Origins of an Anglo-American Right, Joyce Lee Malcom, Harvard University Press, 1994:
The Second Amendment was meant to accomplish two distinct goals, each perceived as crucial to the maintenance of liberty: First, it was meant to guarantee the individual's right to have arms for self-defense and self-preservation. Such an individual right was a legacy of the English Bill of Rights. This is also plain from American colonial practice, the debates over the Constitution, and state proposals for what was to become the Second Amendment. In keeping with colonial precedent, the American article broadened the English protection. English restrictions had limited the right to have arms to Protestants and made the type and quantity of such weapons dependent upon what was deemed "suitable" to a person's "condition." The English also included the proviso that the right to have arms was to be "as allowed by law". Americans swept aside these limitations and forbade any "infringement" upon the right of the people to keep and bear arms.
These privately owned arms were meant to serve a larger purpose as well, albeit the American framers of the Second Amendment, like their English predecessors, rejected language linking their right to "the common defense". When, as Blackstone phrased it, "the sanctions of society and laws are found insufficient to restrain the violence of oppression," those private weapons would afford the people the means to vindicate their liberties.
The second and related objective concerned the militia, and it is the coupling of these two objectives that has caused the most confusion. The customary American militia necessitated an armed public, and Madison's original version of the amendment, as well as those suggested by the states, described the militia as either "composed of" or "including" the body of the people. A select militia was regarded as little better than a standing army. The argument that today's National Guard, members of a select militia, would constitute the only persons entitled to keep and bear arms has no historical foundation. Indeed, it would seem redundant to specify that members of a militia had the right to be armed. A militia could scarcely function otherwise. But the argument that this constitutional right to have weapons was exclusively for members of a militia falters on another ground. The House committee eliminated the stipulation that the militia be "well-armed," and the Senate, in what became the final version of the amendment, eliminated the description of the militia as composed of the "body of the people." These changes left open the possibility of a poorly armed and narrowly based militia that many Americans feared might be the result of federal control. Yet the amendment guaranteed that the right of " the people" to have arms not be infringed. Whatever the future composition of the militia, therefore, however well or ill armed, was not crucial because the people's right to have weapons was to be sacrosanct. As was the case in the English tradition, the arms in the hands of the people, not the militia, are relied upon "to restrain the violence of oppression"
The Constitution gave to the federal government broad authority over state militia. Was the Second Amendment meant to placate states fearful about this loss of control? In fact not one of the ninety-seven distinct amendments proposed by state ratifying conventions asked for a return of any control that had been allocated to the federal government over the militia. Sherman's [Roger Sherman a representative of Connecticut] proposal that some power be returned to the states was rejected by the drafting committee. In any event, the Second Amendment does nothing to alter the situation. Indeed, that was precisely the complaint of the anti-Federalist Centinel in a discussion of the House version of the arms article. The Centinel found that "the absolute command vested by other sections in Congress over the militia, are [sic] not in the least abridged by this amendment." Had the intent been to reapportion this power some diminution of federal control would have been mandated. None was.
... George Mason had attempted to add... a proviso during the convention when he moved to preface the clause granting Congress authority to organize, arm, and discipline the militia with the words "And that the liberties of the people may be better secured against the danger of standing armies in time of peace." A strong statement of preference for a militia must have seemed more tactful than an expression of distrust of the army. The Second Amendment, therefore, stated that it was the militia, not the army, that was necessary to the security of a free state. The reference to a "well regulated" militia was meant to encourage the federal government to keep the militia in good order.
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http://www.guncite.com/gc2ndpur.html
Sorry nyc...
Life is a precious gift that comes with no guarantees. Live everyday like it's your last.
Matey
Is the picture of the li'l guy and his folks?
Matey
Sorry to hear the sad news, nyc...
Matey
Judd, always the romantic!
"I've got a fishin' partner with teats now,"
Smooth, real smooth!
Matey
All the news that CNN thinks is politically correct to report:
PHILLIPS: Now we give you the other side from the executive vice president of the National Rifle Association, Wayne LaPierre
Wayne, thanks for being with us.
WAYNE LAPIERRE, EXECUTIVE VICE PRESIDENT, NRA: Hi, Kyra. Good to be with you.
PHILLIPS: Well, if the ban on assault weapons expires, what kind of weapons would be legal?
LAPIERRE: Kyra, let me say this to start: I'm glad you ran the story because apparently the only difference between "The New York Times" and CNN is that when a reporter for "The New York Times" fakes a story, he's fired, and at CNN he's not.
Your bureau chief, John Zarrella, deliberately faked the story yesterday and intending to show that the performance characteristics of banned firearms on the list are somehow different from the performance characteristics of firearms not on the banned list. He was -- he was implying that these were machine guns or fully automatic guns. That's not true.
PHILLIPS: Mr. LaPierre, I have to stop you there. No one fakes stories at CNN and John Zarrella definitely did not fake a story at CNN. You're very off base. I'm going to let you say your opinion, and let's have a conversation, but don't accuse our reporter of faking any stories, sir.
LAPIERRE: Let me say it again. In front of the whole country, your reporter faked that story yesterday. It deliberately misread...
PHILLIPS: All right, we're going...
LAPIERRE: There's no way it could be true and I challenge CNN to defend it.
PHILLIPS: Well, we're not going to continue this interview because our reporter did not fake...
LAPIERRE: Because you don't want the truth. The truth you don't want out there.
PHILLIPS: OK, that is not true. We did not a fake a story.
LAPIERRE: You ought to register your -- you ought to fill out a lobby form and register.
PHILLIPS: Why don't we ask another question? What are the uses for an assault weapon? Tell me what the uses are for this.
LAPIERRE: Why can't you accept the truth? There is no difference, Kyra, in the performance characteristics of the guns on the banned list and the guns not on the banned list. They don't shoot any faster, they're not more powerful, they're not machine guns, they don't make any bigger holes, all which your reporter, John Zarrella, implied in that story.
PHILLIPS: Let's talk about the ammunition. Folks had problem with the ammunition. We've heard a lot in the last 24 hours from viewers who made the point that it's not the weapons who do the damage, it's the ammo. OK? Can legally be bought, ammunition. Now does this do -- do just as much damage than an illegal weapon?
LAPIERRE: Kyra, they all fire the same ammunition. Why can't you accept the truth? There is no difference in the guns on the banned list and the guns not on the banned list.
Your reporter's story was deliberately misleading the viewers. Bill Clinton deliberately misrepresented the House and the facts to the House of Representatives in the Congress and I don't believe this House of Representatives is going to fall and have the wool pulled over their eyes the way what happened did in '94.
The truth matters. The public needs to hear the truth and the truth is every police officer on the street knows it. There's not a dime worth of difference between the guns on the banned list and the guns off the banned list in terms of their performance characteristics and I challenge CNN again to defend that story to its viewers because it's not true.
PHILLIPS: What do you say...
LAPIERRE: All day yesterday you misled the viewers.
PHILLIPS: What do you say to the members of the law enforcement community that we had on the air who say assault weapons don't belong on the streets?
LAPIERRE: Kyra, I got calls all day yesterday from law enforcement officers going crazy over that story you ran saying it's not true. They were dismayed that there was a law enforcement officer on there lending himself to it.
The story misrepresented the facts. What we need to do to stop crime -- every time you catch a criminal, 100 percent of the time, prosecute him. Put him in prison.
We have all kinds of gun laws. Catch a violent felon with a gun, put him in jail. Catch a violent drug dealer with a gun, put them in jail 100 percent of the time. That's what rank-and-file cops know stops crime. But again, I challenge CNN in the headquarters to take an objective look at that story and defend it because it's simply not true.
PHILLIPS: All right. Executive vice president...
LAPIERRE: "The New York Times" reporter was fired, John Zarrella ought to be fired.
PHILLIPS: Executive vice president of the National Rifle Association, Wayne LaPierre, that's why we are interviewing you today and that's why we're addressing this to show both sides of that story.
And we all stick by John Zarrella and how credible of a reporter he is.
Thank you for your time, sir.
http://www.cnn.com/TRANSCRIPTS/0305/16/wbr.00.html
All the news that's fit to make up-CNN
CNN: Now we give you the other side from the Executive Vice-President of the National Rifle Association, Wayne LaPierre. Wayne, thanks for being with us.
Wayne: Hi, Kyra. Good to be with you.
CNN: Well, if the ban on assault weapons expires, what kind of weapons would be legal?
Wayne: Kyra, let me say this to start: I'm glad you ran the story because apparently the only difference between "The New York Times" and CNN is that when a reporter for "The New York Times" fakes a story, he's fired, and at CNN he's not. Your bureau chief, John Zarrella, deliberately faked the story yesterday and intending to show that the performance characteristics of banned firearms on the list are somehow different from the performance characteristics of firearms not on the banned list. He was -- he was implying that these were machine guns or fully automatic guns. That's not true.
CNN: Mr. LaPierre, I have to stop you there. No one fakes stories at CNN and John Zarrella definitely did not fake a story at CNN. You're very off base. I'm going to let you say your opinion, and let's have a conversation, but don't accuse our reporter of faking any stories, sir.
Wayne: Let me say it again. In front of the whole country, your reporter faked that story yesterday. It deliberately misread...
CNN: All right, we're going...
Wayne: There's no way it could be true and I challenge CNN to defend it.
CNN: Well, we're not going to continue this interview because our reporter did not fake...
Wayne: Because you don't want the truth! The truth you don't want out there!
CNN: OK, that is not true. We did not fake a story.
Wayne: You ought to register your -- you ought to fill out a
lobby form and register.
CNN: Why don't we ask another question? What are the uses for an assault weapon? Tell me what the uses are for this.
Wayne: Why can't you accept the truth? There is no difference, Kyra, in the performance characteristics of the guns on the banned list and the guns not on the banned list. They don't shoot any faster, they're not more powerful, they're not machine guns, they don't make any bigger holes, all which your reporter, John Zarrella, implied in that story.
CNN: Let's talk about the ammunition. Folks had problem with the ammunition. We've heard a lot in the last 24 hours from viewers who made the point that it's not the weapons who do the damage, it's the ammo. OK? Can legally be bought, ammunition. Now does this do -- do just as much damage than an illegal weapon?
Wayne: Kyra, they all fire the same ammunition. Why can't you accept the truth? There is no difference in the guns on the banned list and the guns not on the banned list. Your reporter's story was deliberately misleading the viewers. Bill Clinton deliberately misrepresented the House and the facts to the House of Representatives in the Congress and I don't believe this House of Representatives is going to fall and have the wool pulled over their eyes the way what happened did in '94. The truth matters. The public needs to hear the truth and the truth is every police officer on the street knows it. There's not a dime worth of difference between the guns on the banned list and the guns off the banned list in terms of their performance characteristics and I challenge CNN again to defend that story to its viewers because it's not true.
CNN: What do you say...
Wayne: All day yesterday you misled the viewers.
CNN: What do you say to the members of the law enforcement community that we had on the air who say assault weapons don't belong on the streets?
Wayne: Kyra, I got calls all day yesterday from law enforcement officers going crazy over that story you ran saying it's not true. They were dismayed that there was a law enforcement officer on there lending himself to it. The story misrepresented the facts. What we need to do to stop crime -- every time you catch a criminal, 100 percent of the time, prosecute him. Put him in prison. We have all kinds of gun laws. Catch a violent felon with a gun, put him in jail. Catch a violent drug dealer with a gun, put them in jail 100 percent of the time. That's what rank-and-file cops know stops crime. But again, I challenge CNN in the headquarters to take an objective look at that story and defend it because it's simply not true.
CNN: All right. Executive vice president...
Wayne: "The New York Times" reporter was fired, John Zarrella
ought to be fired.
CNN: Executive vice president of the National Rifle Association, Wayne LaPierre, that's why we are interviewing you today and that's why we're addressing this to show both sides of that story. And we all stick by John Zarrella and how credible of a reporter he is. Thank you for your time, sir.
It was a goodern Mags...
Holiday cookout with friends (matey's melt in your mouth baby-back ribs) and perfect weather. House bound for the last couple days getting Momma's 'puter stuff going.
Need to get out, need a haircut! Look like Sheriff John Bunnell of "America's scariest police chases" or something like that!
Later,
Matey
Yes onebgg..
however, cable down twice in the last two days!
I give it a longer test.
I avoid the phone as much...
as possible. 32 years in the business has cost me the higher frequencies due to accustic shock from telco test equipment.