- May 22, 2005
- 122,889
[imgc]msi.gif[/imgc] The Supreme Court will decide, probably by next June, 2008, whether the second amendment is an individual right, or a collective right. They may also comment on what 'reasonable restrictions' may be imposed.
Maryland Shall Issue, Inc. is joining with Gun Owners of America in the commission of an amicus (friend of the court) brief for the DC v. Heller case to be written by the same law firm ( http://www.lawandfreedom.com/ ) that did "The Right of the People of Maryland to Keep and Bear Arms" -- our commissioned rebuttal of the Maryland Attorney General's 1994 Opinion: http://www.marylandshallissue.org/images/legan.pdf
I imagine that everyone reading this assumes that the second amendment is an individual right. Our Bill of Rights traces back to the English Bill of Rights, which were individual rights. James Madison, who drafted our Bill of Rights, said the articles "relate 1st to private rights." The origin and intent of the Bill of Rights was individual ... so why the controversy?
William Rawle, in "A View of the Constitution" in 1825 explained:
"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 pretense 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 [Congress and state legislatures]."
The Georgia court in Nunn v. State (1846) said:
“The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right ....” Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251 (1846)
Up until the Civil War, and somewhat beyond it, the Supreme Court and all the lower courts treated the second amendment as a right of every citizen. It seems that the Supreme Court in 1857 decided that blacks could not be citizens largely because if blacks could be citizens then they could be armed. “It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.” Scott v. Sanford, 60 U.S. (19 How.) 393 (1857) a/k/a "The Dred Scott Case"
However, the Emancipation of slaves, the Freedman's Bureau Act, the 14th amendment in 1868, and the Enforcement Act of 1870 changed that. With blacks now as citizens, a new way of disarming the blacks had to be implemented. Blacks could no longer be specifically legislated against, so discretionary laws were made which, while they looked even-handed on paper, could be used selectively against the blacks or any other minority or outcast group. This was the motivation for the laws against concealed carry -- the fact that such laws could be selectively enforced as desired.
After the 14th amendment, instead of upholding the Bill of Rights as applying to all citizens (as they had before the Civil War), the Supreme Court backed away from that in United States v. Cruikshank. The case involved more than 100 klansmen who, led by Cruikshank, burned down a courthouse where, because of a disputed election, a group of armed blacks had gathered. Federal charges were brought against Cruikshank because of the newly passed 14th amendment and enforcement act banning the deprivation to all citizens of any of the "privileges or immunities of citizens of the United States." The court decided then that the Bill of Rights is NOT covered by the 14th amendment, because these are not 'privileges or immunities' granted to the citizens by the United States, but rights that pre-existed our United States ... which allowed them to acquit the klansmen. One can only imagine what the decision would have been if those burned in the courthouse had been white and the attackers black.
The Brady Organization lists dozens of District Court cases which have found that there is no individual right to keep and bear arms, only a collective right. However, the first cases that they identify are in 1942 - none before then. Why did things change in 1942? World War II had just begun for America and the push was on for total racial integration in the military. No doubt the thinking was that we can have blacks fighting for our country ... but we don't want them coming home trained in weapons and keeping them without supervision. Justice Buford of the Florida Supreme Court expressed just such an opinion when finding a white man not guilty of concealed carry in 1941: "I know something of the history of this legislation. The original Act of 1893 was passed when there was a great influx of negro laborers in this State…. [T]he Act was passed for the purpose of disarming the negro laborers ... and to give the white citizens in sparsely settled areas a better feeling of security. The statute was never intended to be applied to the white population and in practice has never been so applied." Watson v. Stone , 4 So.2d 700, 703 (Fla. 1941)
An informative article about the integration of the military "Integrating the Armed Forces" can be found here:
http://www.digitalhistory.uh.edu/historyonline/integrating.cfm
The current debate about the second amendment put forth by the Brady's etc. purports that the wording of the first part of the sentence (A well regulated Militia being necessary to the security of a free State) modifies and restricts the second part of the sentence (the right of the people to keep and bear Arms shall not be infringed). Just as the Brady's used their manufactured confusion between 'assault weapons' (legally defined semi-autos with some specific cosmetic features) with 'assault rifles' (full-auto or select fire military weapons); likewise they want to confuse the public with the various meanings of 'militia' - claiming that as used in the second amendment, militia is equivalent to the National Guard (a standing army), and not to the citizens volunteer militia as was intended by the framers of the constitution.
Understanding the definition of militia (still defined in US Code Title 10, Sec. 311, as "The Militia of the United States consists of all able-bodied males at least 17 years of age...") is the key to understanding the second amendment as an individual right.
Some great resources on the second amendment, racism and understanding the militia are:
The Racist Roots of Gun Control, by Clayton Cramer
http://www.firearmsandliberty.com/cramer.racism.html
excerpt:
Racism is so intimately tied to the history of gun control in America that we should regard gun control aimed at law-abiding people as a "suspect idea," and require that the courts use the same demanding standards when reviewing the constitutionality of a gun control law, that they would use with respect to a law that discriminated based on race.
A Primer on the Constitutional Right to Keep and Bear Arms, by Nelson Lund
http://www.virginiainstitute.org/publications/primer_on_const.php
The Second Amendment unambiguously and irrefutably establishes an individual right to keep and bear arms. This conclusion, which is dictated by the language of the Constitution, is confirmed by an abundance of historical evidence. Nor is it contradicted by anything yet discovered in the Constitution's legislative history or in the historical background that illuminates the understandings of those who adopted the Bill of Rights.
The Second Amendment and the Individual
Interesting historical study of the militia
http://tinyurl.com/2h3uhw
Sources on the Second Amendment
From Eugene Volokh
http://www.law.ucla.edu/volokh/2amteach/sources.htm
THE SUPREME COURT'S THIRTY-FIVE OTHER GUN CASES:
WHAT THE SUPREME COURT HAS SAID ABOUT THE SECOND AMENDMENT
David B. Kopel, Saint Louis University Public Law Review 1999
http://www.davekopel.com/2A/LawRev/35FinalPartOne.htm
A great overview for those interested in the legal precedents.
excerpt:
"... the dispute about whether the Second Amendment guarantees an individual right can be pretty well settled by looking at the thirty-five other Supreme Court cases which quote, cite, or discuss the Second Amendment. These cases suggest that the Justices of the Supreme Court do now and usually have regarded the Second Amendment "right of the people to keep and bear arms" as an individual right, rather than as a right of state governments."
also "Of the twenty-nine U.S. Supreme Court opinions (including Miller) which have quoted the Second Amendment, twenty-three contain only a partial quote. This quoting pattern suggests that, generally speaking, Supreme Court justices have not considered the "purpose clause" at the beginning of the Second Amendment to be essential to the meaning of the main clause."
Disarm the Negroes
The racist roots of Georgia's gun laws
http://www.georgiacarry.org/cms/wp-content/uploads/2007/11/racist-roots-of-ga-gun-laws.pdf
or http://tinyurl.com/2hp256
The Constitutional Militia, Slavery, And Contemporary "Gun Control" by Dr. Edwin Vieira, Jr., Ph.D., J.D.
http://gunowners.org/opev04.htm
Gun Control and Racism, by Stefan B. Tahmassebi
http://www.saf.org/LawReviews/Tahmassebi1.html
excerpt:
"It was not just the newly freed blacks in the South who were disarmed through discriminatory legislation which denied them the ability to defend their life and property, and kept them in a servile position, but also other 'undesirable' white elements which were targeted by gun control laws."
Various militia links:
http://www.constitution.org/mil/cs_milit.htm
Militia v. Inimicitia
by Jon Roland, Constitution Society
http://www.constitution.org/col/mil_inim.txt
excerpt:
"It is important to understand the origin of the _duty_ of militia, or of militia as a duty. Every society is formed by individuals coming together for mutual defense of their rights against anything that might threaten those rights, including other members of the society."
The Right to Keep and Bear Arms Report of the Subcommittee on the Constitution of the United States Senate Ninety-Seventh Congress Second Session February 1982
http://www.guncite.com/journals/senrpt/senrpt.html
excerpt:
“... the ‘militia’ itself referred to a concept of a universally armed people, not to any specifically organized unit.”
Parker v. D.C.
http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf
excerpt:
“The crucial point is that the existence of the militia preceded its organization by Congress, and it preceded the implementation of Congress’s organizing plan by the states. The District’s definition of the militia is just too narrow. The militia was a large segment of the population—not quite synonymous with “the people,” as appellants contend—but certainly not the organized “divisions, brigades, regiments, battalions, and companies” mentioned in the second Militia Act.”
The Founders' View of the Right to Bear Arms by David E. Young
is due out in just a few weeks (mid-December 2007)
http://www.secondamendmentinfo.com
"Mr. Young's forthcoming book provides the documented information to conclusively settle every dispute about the intent and development of the Second Amendment. It will be published just in time to clarify the individual rights nature of the Second Amendment's protection prior to the District of Columbia vs Heller case being decided by the United States Supreme Court."
Last, but not least ... a very complete and convincing DVD by David T. Hardy
In Search of the Second Amendment
http://www.secondamendmentdocumentary.com/
(as cheap as $12.99 each in quantities .... give them to friends as stocking stuffers, whatever)
MSI has pledged a minimum of $2500 towards the production of this amicus. The Supreme Court decision will affect our gun rights for generations to come. Our amicus will increase the chances that the decision will be in our favor. Please donate to MSI for this effort. You can change the future for the better. Where else can you become a part of history for just a few dollars?
- Henry Heymering, President
Maryland Shall Issue, Inc.
P.O. Box 314
Libertytown, MD 21762
240-446-6782
http://www.marylandshallissue.org
henry@marylandshallissue.org
Maryland Shall Issue, Inc. is joining with Gun Owners of America in the commission of an amicus (friend of the court) brief for the DC v. Heller case to be written by the same law firm ( http://www.lawandfreedom.com/ ) that did "The Right of the People of Maryland to Keep and Bear Arms" -- our commissioned rebuttal of the Maryland Attorney General's 1994 Opinion: http://www.marylandshallissue.org/images/legan.pdf
I imagine that everyone reading this assumes that the second amendment is an individual right. Our Bill of Rights traces back to the English Bill of Rights, which were individual rights. James Madison, who drafted our Bill of Rights, said the articles "relate 1st to private rights." The origin and intent of the Bill of Rights was individual ... so why the controversy?
William Rawle, in "A View of the Constitution" in 1825 explained:
"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 pretense 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 [Congress and state legislatures]."
The Georgia court in Nunn v. State (1846) said:
“The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right ....” Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251 (1846)
Up until the Civil War, and somewhat beyond it, the Supreme Court and all the lower courts treated the second amendment as a right of every citizen. It seems that the Supreme Court in 1857 decided that blacks could not be citizens largely because if blacks could be citizens then they could be armed. “It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.” Scott v. Sanford, 60 U.S. (19 How.) 393 (1857) a/k/a "The Dred Scott Case"
However, the Emancipation of slaves, the Freedman's Bureau Act, the 14th amendment in 1868, and the Enforcement Act of 1870 changed that. With blacks now as citizens, a new way of disarming the blacks had to be implemented. Blacks could no longer be specifically legislated against, so discretionary laws were made which, while they looked even-handed on paper, could be used selectively against the blacks or any other minority or outcast group. This was the motivation for the laws against concealed carry -- the fact that such laws could be selectively enforced as desired.
After the 14th amendment, instead of upholding the Bill of Rights as applying to all citizens (as they had before the Civil War), the Supreme Court backed away from that in United States v. Cruikshank. The case involved more than 100 klansmen who, led by Cruikshank, burned down a courthouse where, because of a disputed election, a group of armed blacks had gathered. Federal charges were brought against Cruikshank because of the newly passed 14th amendment and enforcement act banning the deprivation to all citizens of any of the "privileges or immunities of citizens of the United States." The court decided then that the Bill of Rights is NOT covered by the 14th amendment, because these are not 'privileges or immunities' granted to the citizens by the United States, but rights that pre-existed our United States ... which allowed them to acquit the klansmen. One can only imagine what the decision would have been if those burned in the courthouse had been white and the attackers black.
The Brady Organization lists dozens of District Court cases which have found that there is no individual right to keep and bear arms, only a collective right. However, the first cases that they identify are in 1942 - none before then. Why did things change in 1942? World War II had just begun for America and the push was on for total racial integration in the military. No doubt the thinking was that we can have blacks fighting for our country ... but we don't want them coming home trained in weapons and keeping them without supervision. Justice Buford of the Florida Supreme Court expressed just such an opinion when finding a white man not guilty of concealed carry in 1941: "I know something of the history of this legislation. The original Act of 1893 was passed when there was a great influx of negro laborers in this State…. [T]he Act was passed for the purpose of disarming the negro laborers ... and to give the white citizens in sparsely settled areas a better feeling of security. The statute was never intended to be applied to the white population and in practice has never been so applied." Watson v. Stone , 4 So.2d 700, 703 (Fla. 1941)
An informative article about the integration of the military "Integrating the Armed Forces" can be found here:
http://www.digitalhistory.uh.edu/historyonline/integrating.cfm
The current debate about the second amendment put forth by the Brady's etc. purports that the wording of the first part of the sentence (A well regulated Militia being necessary to the security of a free State) modifies and restricts the second part of the sentence (the right of the people to keep and bear Arms shall not be infringed). Just as the Brady's used their manufactured confusion between 'assault weapons' (legally defined semi-autos with some specific cosmetic features) with 'assault rifles' (full-auto or select fire military weapons); likewise they want to confuse the public with the various meanings of 'militia' - claiming that as used in the second amendment, militia is equivalent to the National Guard (a standing army), and not to the citizens volunteer militia as was intended by the framers of the constitution.
Understanding the definition of militia (still defined in US Code Title 10, Sec. 311, as "The Militia of the United States consists of all able-bodied males at least 17 years of age...") is the key to understanding the second amendment as an individual right.
Some great resources on the second amendment, racism and understanding the militia are:
The Racist Roots of Gun Control, by Clayton Cramer
http://www.firearmsandliberty.com/cramer.racism.html
excerpt:
Racism is so intimately tied to the history of gun control in America that we should regard gun control aimed at law-abiding people as a "suspect idea," and require that the courts use the same demanding standards when reviewing the constitutionality of a gun control law, that they would use with respect to a law that discriminated based on race.
A Primer on the Constitutional Right to Keep and Bear Arms, by Nelson Lund
http://www.virginiainstitute.org/publications/primer_on_const.php
The Second Amendment unambiguously and irrefutably establishes an individual right to keep and bear arms. This conclusion, which is dictated by the language of the Constitution, is confirmed by an abundance of historical evidence. Nor is it contradicted by anything yet discovered in the Constitution's legislative history or in the historical background that illuminates the understandings of those who adopted the Bill of Rights.
The Second Amendment and the Individual
Interesting historical study of the militia
http://tinyurl.com/2h3uhw
Sources on the Second Amendment
From Eugene Volokh
http://www.law.ucla.edu/volokh/2amteach/sources.htm
THE SUPREME COURT'S THIRTY-FIVE OTHER GUN CASES:
WHAT THE SUPREME COURT HAS SAID ABOUT THE SECOND AMENDMENT
David B. Kopel, Saint Louis University Public Law Review 1999
http://www.davekopel.com/2A/LawRev/35FinalPartOne.htm
A great overview for those interested in the legal precedents.
excerpt:
"... the dispute about whether the Second Amendment guarantees an individual right can be pretty well settled by looking at the thirty-five other Supreme Court cases which quote, cite, or discuss the Second Amendment. These cases suggest that the Justices of the Supreme Court do now and usually have regarded the Second Amendment "right of the people to keep and bear arms" as an individual right, rather than as a right of state governments."
also "Of the twenty-nine U.S. Supreme Court opinions (including Miller) which have quoted the Second Amendment, twenty-three contain only a partial quote. This quoting pattern suggests that, generally speaking, Supreme Court justices have not considered the "purpose clause" at the beginning of the Second Amendment to be essential to the meaning of the main clause."
Disarm the Negroes
The racist roots of Georgia's gun laws
http://www.georgiacarry.org/cms/wp-content/uploads/2007/11/racist-roots-of-ga-gun-laws.pdf
or http://tinyurl.com/2hp256
The Constitutional Militia, Slavery, And Contemporary "Gun Control" by Dr. Edwin Vieira, Jr., Ph.D., J.D.
http://gunowners.org/opev04.htm
Gun Control and Racism, by Stefan B. Tahmassebi
http://www.saf.org/LawReviews/Tahmassebi1.html
excerpt:
"It was not just the newly freed blacks in the South who were disarmed through discriminatory legislation which denied them the ability to defend their life and property, and kept them in a servile position, but also other 'undesirable' white elements which were targeted by gun control laws."
Various militia links:
http://www.constitution.org/mil/cs_milit.htm
Militia v. Inimicitia
by Jon Roland, Constitution Society
http://www.constitution.org/col/mil_inim.txt
excerpt:
"It is important to understand the origin of the _duty_ of militia, or of militia as a duty. Every society is formed by individuals coming together for mutual defense of their rights against anything that might threaten those rights, including other members of the society."
The Right to Keep and Bear Arms Report of the Subcommittee on the Constitution of the United States Senate Ninety-Seventh Congress Second Session February 1982
http://www.guncite.com/journals/senrpt/senrpt.html
excerpt:
“... the ‘militia’ itself referred to a concept of a universally armed people, not to any specifically organized unit.”
Parker v. D.C.
http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf
excerpt:
“The crucial point is that the existence of the militia preceded its organization by Congress, and it preceded the implementation of Congress’s organizing plan by the states. The District’s definition of the militia is just too narrow. The militia was a large segment of the population—not quite synonymous with “the people,” as appellants contend—but certainly not the organized “divisions, brigades, regiments, battalions, and companies” mentioned in the second Militia Act.”
The Founders' View of the Right to Bear Arms by David E. Young
is due out in just a few weeks (mid-December 2007)
http://www.secondamendmentinfo.com
"Mr. Young's forthcoming book provides the documented information to conclusively settle every dispute about the intent and development of the Second Amendment. It will be published just in time to clarify the individual rights nature of the Second Amendment's protection prior to the District of Columbia vs Heller case being decided by the United States Supreme Court."
Last, but not least ... a very complete and convincing DVD by David T. Hardy
In Search of the Second Amendment
http://www.secondamendmentdocumentary.com/
(as cheap as $12.99 each in quantities .... give them to friends as stocking stuffers, whatever)
MSI has pledged a minimum of $2500 towards the production of this amicus. The Supreme Court decision will affect our gun rights for generations to come. Our amicus will increase the chances that the decision will be in our favor. Please donate to MSI for this effort. You can change the future for the better. Where else can you become a part of history for just a few dollars?
- Henry Heymering, President
Maryland Shall Issue, Inc.
P.O. Box 314
Libertytown, MD 21762
240-446-6782
http://www.marylandshallissue.org
henry@marylandshallissue.org
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