From: "Chris R. Tame", [EMAIL PROTECTED] >http://home.earthlink.net/~conserve/2ndamen.htm >LEGAL DISCUSSION OF THE SECOND AMENDMENT >By Peter W. Hauer >"A well regulated Militia, being necessary to the securityof a free State, >the right of the people to keep and bear Arms shall not be infringed." >Second Amendment, US Constitution. > >Introduction: > >Gun prohibitionists often claim that the 2nd Amendment only grants a >"collective right" to own guns, or even a, "state right." These claims >ignore both history and the vast majority of legal scholarship. > > PART ONE, HISTORICAL ANALYSIS: > >First of all, the 2nd Amendment does not grant anything. The right to bear >arms, like all the other rights listed in the Bill of Rights, were >recognized as common law rights; long before the Constitution was written. >Our forefathers wrote that our basic human rights came from God. >Therefore,they cannot be taken away by the government. The historical record >from 1776 to 1791 proves this. The Declaration of Independence speaks of men >being, "...endowed by their creator with certain unalienable rights." The >Constitutional debates refer to the Bill of Rights as written promises by >thenew government not to infringe upon the, "natural rights," of mankind. > >Second, the very idea of a "collective" right is absurd. All rights must be >individually held, or else they are meaningless. The notion of a >"collective" right was simply created by anti- gun lobbyists the mid 1980's. >Can you imagine if the media told you that your rights to free speech, >religion, and due process were "collective," and so could not be exercised >unless you did so as a member of a government controlled group?! > >Well, that's exactly what the anti-self defense lobby is saying about your >2nd Amendment rights. They say it is a "collective" right which can only be >exercised if you are a member of a government controlled group, like the >National Guard. The folly of this view becomes even more obvious when you >realize that the right to bear arms was intended so that the people would be >able to forcibly resist government oppression. Now how can the right to >resist the government be preserved if the government itself controls who can >exercise that right? If the idea of people having the ability to revolt >against the government scares some politicians; that's wonderful! That's >exactly what the 2nd Amendment was intended to do. Those politicians can >easily avoid such a revolution by just obeying the Constitution; as they >have already sworn to do. Some extreme propagandists even claim that the 2nd >Amendment is a "state right." However, a careful reading of the 9th and 10th >Amendments clearly shows that governments do not have rights. Governments >only have powers. Only people have rights. The founding fathers were clear >on this. > >Gun prohibitionists rely greatly on the fact that the word "militia" is used >in the first clause of the 2nd Amendment. First of all, the founding Fathers >used the term "militia" to refer to the people at large, not a >professionally trained group controlled by the government, such as the >National Guard. Here are just two of the many quotes on their thoughts about >the militia: "A well regulated militia, composed of the people...is the best >and most natural defense of a free country" James Madison, 1st Annals of >Congress "I ask you sir, who are the militia? They consist now of the whole >people." George Mason, Elliott, Debates, at 425-426. (Note: George Mason was >the primary author ofthe Second Amendment.) > >Furthermore, the only reason the word "militia" is even mentioned in the 2nd >Amendment was due to the combining of two different styles of legal writing. >In 1789, most state constitutions referred to the right to bear arms as a >"right of the people." A few states (e.g. Virginia) referred to "the >militia." All the states intended the same result. They just used different >words for it. So when all the delegates got together, they simply borrowed >language from both types of state constitutions. > >Some historical revisionists claim that the words "A well regulated militia" >mean that the militia must be "regulated" by the government. However, you >cannot apply modern definitions to words which had very different meanings >when they were originally written. This can be very deceptive. Back in the >18th century, "well regulated" simply meant "properly functioning." It also >implied "well equipped." It is only in the twentieth century that the term >"regulated" began to imply outside supervision and outside control. In two >different clauses, the Constitution places the militia under varying degrees >of federal control. This was a point of great contention in 1788. The >opponents of this federal control over the militia at first opposed the >constitution in part for this very reason. They only agreed to ratify the >Constitution after they were assured that the people's right to keep and >bear arms would be protected in a Bill of Rights, which would be added >later. > >The rest is history. > >LEGAL ANALYSIS: > >The vast majority of legal scholarship demonstrates that the 2nd Amendment >is an individual right. In a 1993 computer search, there were 41 law review >articles about the 2nd Amendment. Thirty seven of them concluded that it >protects the individual's right to keep and bear arms. Only four claimed >otherwise, (three of which were written by members of anti- gun groups!) >Some of the many articles supporting the individual right include: > >Yale Law Journal, 99: 637-59, 1986; 1992 Duke Law Journal, > >43 (6): 1236-55, 1994 Georgetown Law Journal, 80: 309-61, > >Dec 1991 George Washington Univ., Law Review, 54: 452-64, > >1986 Michigan Law review, 82: 203-73, 1983 Northwestern > >Univ. School of Law, vol. 85 No. 3 at 764, Winter, 1995 > >American Journal of Criminal Law, 17: 143-74, 1990, and > >Yale Law Journal, 101: 1193-1284. > >Gun prohibitionists claim that the Supreme Court's recent silence on the >right to bear arms somehow proves that this right does not exist. Well for >years the Supreme Court was silent when black people were not allowed to >vote. Was that constitutional? No! The Court was wrong then, and it's wrong >now. Furthermore, the anti-gunners who rely so heavily on the Court's recent >silence are ignoring the Court's earlier decisions, which support the >individual right to bear arms. > >In US v Miller, the Court ruled that the Second Amendment does not guarantee >an individual right to own a sawed-off shot gun. However, the Court based >its decision on the fact that the appellant could not show that a sawed-off >shot gun was related to any military or militia purpose. By this reasoning, >if the weapon in question had been a true military rifle, Miller would have >been allowed to keep it; even though he was not in the army reserve or >national guard. He would still have the individual right to own a "militia >type" of rifle. (See YLJ, 99: 637-59, 1986.) The Court also upheld the 2nd >amendment as an individual right in US v Verdugo-Urquidez. Moreover, in >Perpich v Dept. of Defense, the Court specifically stated that the National >Guard did not qualify as a "militia" under the 2nd Amendment. In Roe v Wade, >Chief Justice Harlan referred to the right to bear arms as one of our >individual constitutional rights. > >Note: Only Chief Justice Burger has favored gun control. In fact, he has >loudly supported "gun control" in the press, but he is both biased and >mistaken. The famous book, The Brethren, criticized Burger for, >"...circulating wild opinions in order to get press attention." > >By Peter W. Hauer > > > -- Dr. Chris R. Tame, Director Libertarian Alliance | "The secret of Happiness is Freedom, | 25 Chapter Chambers | and the secret of Freedom is Courage" | Esterbrooke Street | Thucydides, Pericles' Funeral Oration | London SW1P 4NN England Tel: 020 7821 5502 Fax: 020 7834 2031 Email: [EMAIL PROTECTED] LA Web Site: http://www.libertarian-alliance.com/ Free Life Web Site: http://www.whig.org.uk Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___________________________________________________________ T O P I C A http://www.topica.com/t/17 Newsletters, Tips and Discussions on Your Favorite Topics
