A hilarious rant. You can hear this guy's anger ain't just for show, too--> www.fuckthesouth.com
-TD
Fuck the South. Fuck 'em. We should have let them go when they wanted to leave. But no, we had to kill half a million people so they'd stay part of our special Union. Fighting for the right to keep slaves - yeah, those are states we want to keep.
And now what do we get? We're the fucking Arrogant Northeast Liberal Elite? How about this for arrogant: the South is the Real America? The Authentic America. Really?
Cause we fucking founded this country, assholes. Those Founding Fathers you keep going on and on about? All that bullshit about what you think they meant by the Second Amendment giving you the right to keep your assault weapons in the glove compartment because you didn't bother to read the first half of the fucking sentence?
The Mother Jones article link to by this article spouts the same gun-control BS that the liberal press repeats ad nauseam day in and day out. "Regarding the second broad question of individual versus state-militia rights, the Court held in its 1939 United States v. Miller decision that individuals have in effect no right to keep and bear arms under the amendment, but only a collective right having "some reasonable relationship to the preservation or efficiency of a well-regulated militia." Lower courts have consistently applied the Miller decision in upholding various gun-control laws over the years. "
Not quite.
Recent History
The story begins with the National Firearms Act of 1934, which was the first federal law regulating firearms. Prior to that time, it was generally believed that the Constitution did not grant the federal government this power. The Firearms Act levied a prohibitive $200 dollar tax on machine guns and sawed off shotguns. Government officials claimed that these were the weapons of choice for the criminal gangs that evolved during prohibition.
This law was enacted during a period when a determined effort was being made to expand federal police power at the expense of the states. A crafty legislative tactic of that time was to construct new federal criminal laws as commerce measures, which could be justified as revenue producers in the event they were challenged by supporters of state's rights. Some have speculated that the 1934 Firearms Act was passed to provide job security for federal agents who were threatened with unemployment by the repeal of alcohol prohibition in 1933.
Like most criminal cases, U.S. v. Miller involved some unsavory characters. Jack Miller, a bank robber and moonshiner with many enemies, felt the need to carry a sawed off shotgun without paying the tax. He and his associate, Frank Layton, had the misfortune to be caught transporting it from Oklahoma to Arkansas and were arrested in June of 1938 by federal agents on charges of violating the Firearms Act.
They were brought before United States District Court Judge Heartsill Ragon in Fort Smith, Arkansas who encouraged them to plead not guilty and appointed an attorney to represent them. He then found in their favor, declaring that the relevant section of the Firearms Act was in violation of the Second Amendment and therefore unconstitutional.
Federal law enforcement authorities were not pleased. Judge Ragon's decision threatened the expansion of federal power, so the case was quickly appealed to the Supreme Court. Jack could not afford legal representation and died of gunshot wounds before the hearing date. His co-defendant Frank Layton apparently decided he wasn't interested in defending his or our rights under the 2nd and took four years probation.
That a Supreme Court case could be decided without the court hearing both sides of the argument seems bizarre. Yet this was the perfect opportunity for advocates of greater federal power to advance their agenda. With no opposition, they could not lose. Despite the lack of defendant representation the opinion, written by Justice James Clark McReynolds, was notable in that it did not completely cave in to the government demands. The resulting decision issued in May of 1939 stated that "in the absence of any evidence" the Supreme Court could not say that a sawed off shotgun had any relationship to the militia.
The critical point here is the absence of evidence. Of course that was literally correct, since Miller's side never showed up in court. If there had been a N. R. A. Miller might very well have gone differently. After stating the court's opinion, McReynolds included passages from various historical sources to show that the militia consists of all able-bodied men who have a right, perhaps even a duty, to own firearms suitable for military service. There was little reason to include these references unless McReynolds wished to protect the Amendment from further encroachment.
The case was returned to the lower court where Miller, if living, could have made further arguments on his own behalf. He could have easily and correctly argued that short-barreled shotguns had been popular military weapons in the trenches of the First World War. It was lucky for the federal government that he was dead.
Still, the decision set off alarm bells in D.C. Federal prosecutors couldn't wait to weaken Miller. In Cases v. U.S. in 1942 they found their opportunity. The robed ones didn't see a straightforward way to eviscerate Miller. Instead they accepted many of the ruling's conclusions, but tried to draw a fence around it application "However, we do not feel that the Supreme Court in Miller was attempting to formulate a general rule applicable to all cases."
"In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket ... But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities -- almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day -- is in effect to hold that the limitation of the Second Amendment is absolute."
"Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon."
Right, what legitimate reason does Steve Schear have for keeping a fully armed tank in their back yard? While this certainly seems reasonable to most citizens, was this type of limitation intended when the Framers drafted the 2nd?
Does Original Intent still matter?
According to Mr Lessig's analysis of Supreme Court judicial conduct, "Translating Federalism: United States v Lopez," one of the challenges faced by those attempting to interpret the Constitution is that there has been a qualitative change in the depth of understanding of common citizens regarding the "fictions" and "conventions" that underlie it. He cites de Tocqueville, following his early 1800s U.S. tour, to support the assumption that "The government of the Union rests almost entirely on legal fictions. The Union is an ideal nation which exists, so to say, only in men's minds and whose extent and limits can only be discerned by the understanding. Everything in such a government depends on artificially contrived conventions, and it is only suited to a people long accustomed to manage its affairs, and one in which even the lowest ranks of society have an appreciation of political science."
The system is not fundamentally different, in this sense, from baseball: For no one would say that baseball is just the rules of the game; more than the rules, it is the understandings of those rules, and the practices that they envision, that constitute the knowledge necessary to play the game. But what happens when this "diverse knowledge and discernment" disappear? When these "artificially contrived conventions" lapse, how does a constitutional regime respond? More particularly, how does written constitution survive when the "fictions" upon which it rested indeed become fiction? His answer is not very well.
This is the distinctive feature of constitutionalism in America. It is not that conventions and understandings behind the constitutional text disappear; it is that they change. They change both in their substance, and in their location: They not only direct different readings of the constitutional text, but they are possessed, or understood, no longer by "the common people," instead by a constitutional elite lawyers, law professors, and members of government. The distinctive problem of American constitutionalism is how to read this constitutional text, when these understandings are fundamentally different from what they were. The result of this erosion of common understanding is that the Supreme Court swings, sometimes wildly, between two poles Mr. Lessig calls "orginalism" and "texturalism".
Originalism attempts to maintain fidelity and articulate these previously understood conventions, and apply them today to assure that the constitutional structure original established is, so far as possible, preserved. The effort, we could say, is to translate that original structure into the context of today. Texturalism is less focused on fidelity. Its method is more direct. It simply reads a text according to relatively simple rules of interpretation, finding that understanding of the text that is most compelling in the current context. It doesn't worry whether that current reading is the original reading. It aims simply at finding a reading that coheres best with what is now understood to be the case.
Though many of today's citizens and judiciary are most comfortable with a texturalistic interpretation, in my view only an originalistic reading is acceptable. Texturalism is a slippery slope which encourages a "make it up as you go along" ethic. It is in just this situation we find ourselves in today regarding the 2nd Amendment.
Our Radical Beginnings
From the Declaration of Independence the right of individuals to overthrow their governments when THEY feel that it has been enshrined. While some might insist that Constitutional Amendments or massive civil unrest is the only legitimate means of achieving fundamental change, I would remind you that only a relative minority of American Colonials took an active part in the Revolution. Even Lincoln, watching the storm clouds approach over secession, recognized this right for violent overthrow.
"Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of
amending it or their revolutionary right to dismember or overthrow it."
-- First Inaugural Address (available at http://www.bartleby.com/124/pres31.html)
"Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing
government, and form a new one that suits them better. This is a most valuable,---a most sacred right---a right,
which we hope and believe, is to liberate the world. Nor is this right confined to cases in which the whole people
of an existing government, may choose to exercise it."
(Speech in the United States House of Representatives, Jan. 12, 1848)
Back to the Future
You or I certainly couldn't consider overthrowing our government by force with a pistol, rifle or shotgun. The robed ones understood this clearly in Cases. If the rule of the Miller case were to stand as a full and general statement "... Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result."
The Justices knew this assertion against individuals possessing the right and the means for violent overthrow to be historically false. I suspect they saw acceptance of a plain reading of the 2nd as tantamount to a suicide pact. Accordingly they adopted a textural interpretation. As the comedian Lenny Bruce was fond of saying, "In the halls of justice, the only justice is in the halls."
So, where we sit now is that we have an implied right to overthrow our government by violence but the planning or possession of the effective means is a felony. From my perspective an acceptance of the original intent of the Framers and complete reversal of Miller/Cases is in order. But I'm not holding my breath. Both the liberal and conservative poles in our political spectrum routinely seek to obtain "plain readings" of those Amendments they support and textural interpretations of those they abhor. Only by a full and complete reading of all Amendments can we all truly hope to attain the rights and protections afforded under our great system of laws. If some of these laws have become outdated or culturally problematic, do not weaken our system by interpreting them away. Use the Amendment process. That's what its there for.
(I have submitted a piece similar to this to the NYT and other press but I doubt their editorial bias will incline them to ever publish it.)
Steve Schear
P.S. If still doubt the basis of my arguments I point you to "The Embarrassing Second Amendment," by professor Sanford Levinson http://www.shadeslanding.com/firearms/embar.html
