Defending 2A on a website

[midtennchip]

Dave, I intend no disrespect by this, but I have (and do) study the Constitution (that's what we lawyers do). My emotion does not play into this at all (hence, providing the citations to actual law and legal scholarship). But, I suspect your experience as a LEO does play into your reading of the Amendment. I commend you for your service to our community (and other communities), but you are the first person I've ever heard that thinks the 2nd Amendment provides a right to arm police officers. That includes ALL of the attorneys at the Cato Institute that comment on this, Glenn Reynolds (UT Constitutional Law Prof and frequent speaker on the subject), TN Supreme Court Justice William Koch (who taught me Constitutional Law), and countless other legal scholars.

If the Amendment was as crystal clear as you state, the SCOTUS would not be hearing the Heller case this term. By the way, the SCOTUS will decide the case and present its ruling before the term ends. In granting the appeal, teh SCOTUS stated the issue as, “Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?†Obviously, the Justices believe there is an issue, so the reading of the 2nd Amendment is not crystal clear in their minds (or the minds of Appeals Court judges).

I share your concern over this decision. But, the SCOTUS decisions are never "final." They are always open to being reversed in another case (see the Dread Scott decision and its reversal, for example). However, a decision upholding the DC ban would be a HUGE victory for gun control folks. I just don't think the ban will hold up. The Appeals Court certainly didn't think it was constitutional. There is one other possibility, though. The more liberal wing of the Court could convince Kennedy to deny Heller the ability to challenge the ban on jurisdictional gounds. That would allow the ban to stand without actually ruling on the intent of the 2nd Amendment. If the ban is allowed to stand, that will probably be the Court's ruling. See the website below for an explanation.

http://www.scotusblog.com/wp/uncategorized/court-agrees-to-rule-on-gun-case/

[The Rabbi]

I share your concern over this decision. But, the SCOTUS decisions are never "final." They are always open to being reversed in another case (see the Dread Scott decision and its reversal, for example).

Nice to have someone with actual legal training to comment. Thanks.

But hanging anything on a SC reversal is pretty desperate. Plessy was decided in 1893 (iirc) and reversed by Brown in 1958. I dont want to wait 65 years (by which time I'll probably be dead or too old to shoot).

[Guest cstandi]

Well, let's see if I can irritate everyone.

I've heard these arguments that carrying guns will prevent crime for some time - concealed and/or open carry. But I don't know of any study that has been done to support that idea. It makes sense, but then again so does the idea that if we put more folks out there with guns that blood will flow in the streets because they will get mad at someone and open fire.

But there have been plenty of studies done which show that places which have banned guns have experienced a massive increase in crime.

As far as federal control of the National Guard goes I believe this could be a major problem that our country could eventually face. As a former member of the TN National Guard and a soon to be officer in the active Army I have several problems with the way that our "militia" is structured.

First, who supplies the Natioanl Guard with weapons, supplies, and ammo? The Federal Government. So a tyrranical government could easily negate the power of our state militia by withholding resources. How long do you think a state militia could function without support from the federal government? I doubt is most armories have enough ammo on hand to give their soldiers a basic combat load much major munitions for artillery or armor. I guess they can scavenge at Wal-mart and Sports Authority for .223 and 9mm but you cant really pick up 155mm shells and AT4's at your local gun store.

My second problem is with the oath that National Guard soldiers take. Every solider in the National Guard has sworn to protect not only their state but also the federal government. So in the event of a tyrannical take over of the U.S. if that Government decided to federalize the Guard (a very likely scenario in my opinion) every solider, enlisted and officer, would have to choose which oath they would uphold. This sounds like a pretty tough choice to me.

In my opinion the National Guard may no longer be able to fulfill its duty of state defense effectively, it is far to controlled by the federal government which it was meant to protect against. It is also far close to a professional fighting force as opposed to the collection of average citizens originally imagined. It looks like it may fall to the hand of average citizens to defend their states and our republic against tyranny, just as imagined by our founding fathers.

[Marswolf]

But there have been plenty of studies done which show that places which have banned guns have experienced a massive increase in crime.

I'm not sure that I've seen those. Crime has gone up, but there are a lot of reasons for that, not just gun bans. I think you would have to prove cause and effect. Things are seldom that simple.

In my opinion the National Guard may no longer be able to fulfill its duty of state defense effectively, it is far to controlled by the federal government which it was meant to protect against. It is also far close to a professional fighting force as opposed to the collection of average citizens originally imagined. It looks like it may fall to the hand of average citizens to defend their states and our republic against tyranny, just as imagined by our founding fathers.

I agree with you. The "militia" is no longer what it was intended to be. It certainly should not be under federal control.

But the militia was intended to substitute for a standing army. That just isn't a realistic possibility these days.

[DaveTN]

So in the event of a tyrannical take over of the U.S. if that Government decided to federalize the Guard (a very likely scenario in my opinion) every solider, enlisted and officer, would have to choose which oath they would uphold. This sounds like a pretty tough choice to me.

I served in active duty Navy, Air National Guard, and served as a Police Officer. I don’t think the decision would be tough at all for most of us. It’s a scenario that can’t happen anywhere but in the movies. But if it did get as far as an attempted tyrannical government takeover; Martial Law would be imposed…. Game over…. Government restored.

<O:p</O:p

As a soon-to-be Army Officer are you going to take up arms against American citizens? No… and neither is anyone else.

[Guest cstandi]

I'm not sure that I've seen those. Crime has gone up, but there are a lot of reasons for that, not just gun bans. I think you would have to prove cause and effect. Things are seldom that simple.

I agree that it may not be an obvious and measurable cause and effect but the correlation in timelines between gun control laws and higher crimes rates is hard to dispute.

I would have to find some of the places I was reading, but for instance I remember one report from the British Government that stated that there had been a major rise in crime since their gun control laws were implemented.

I served in active duty Navy, Air National Guard, and served as a Police Officer. I don’t think the decision would be tough at all for most of us. It’s a scenario that can’t happen anywhere but in the movies. But if it did get as far as an attempted tyrannical government takeover; Martial Law would be imposed…. Game over…. Government restored.

<O:p</O:p

As a soon-to-be Army Officer are you going to take up arms against American citizens? No… and neither is anyone else.

Im sure that the Roman Republic believed that it was secure from tyranny and dictatorship, unfortunately history shows us that in the end all great civilizations will face some form of this problem. The greeks called it the cycle of tyranny and it has happened far to many times in history for me to believe that it is only possible in movies. I agree that I could never take up arms against the American people but unfortunately those who might wish such a takeover will not be as obvious about it as we all wish. Something done in a time of emergency to "protect us" could suddenly be causing some of us to question our oaths to a government that might issue such laws.

[midtennchip]

Going back to my file on this subject (yes, I have a legal file on this in my office), I decided to post this LAST bit of information before I leave it alone. I've probably beaten the horse (unfortunately, it's long from dead) long enough.

Dave, you say individuals have a right to bear arms, but the 2A does not provide that right. Then, from where does that right come? If it’s a God-given right, keep in mind that the Bill of Rights was written specifically to preserve those inalienable rights.

You seem to be concerned that the Court will decide the gun rights issue based on a provision (the 2A) that does not provide that right. If the right exists somewhere other than the 2A, then a decision concerning only the 2A shouldn’t concern you. The right would still exist after the decision.

Further, despite your claim to the contrary, the overwhelming legal precedents point to an individual right in the 2A. I’ll do this in bullet (no pun intended) form:

<!--[if !supportLists]-->-<!--[endif]-->the 2A is an expanded version of a similar right in the 1688 English Bill of Rights, and England, of course, didn't have states, so the English right couldn't have been a states' right;

<!--[if !supportLists]-->-<!--[endif]-->all of the notable 19^th Century constitutional commentators, including St. George Tucker (1803), William Rawle (1829), Justice Joseph Story (1833 and 1840), and Thomas Cooley (1880 and 1898), believed the 2A conferred an individual right;

<!--[if !supportLists]-->-<!--[endif]-->exactly one statement in the 19^th Century cases and commentaries supports the collective rights view, a concurring (ie, not the actual opinion) opinion in an 1842 Arkansas case;

<!--[if !supportLists]-->-<!--[endif]-->the three most prolific (and arguably most important) liberal constitutional law professors, Professor Eugene Volokh of UCLA, Professor Laurence Tribe of Harvard, and Professor Sanford Levinson of Univ. of Texas, currently teaching and writing have changed their views from a collective rights to an individual rights view of the 2A;

<!--[if !supportLists]-->-<!--[endif]-->the Court said in the 1990 case U.S. v. Verdug-Urquidez that "the people" has the same meaning--individuals--throughout the Bill of Rights; and

<!--[if !supportLists]-->-<!--[endif]-->throughout the SCOTUS's history, the Justices have mentioned the 2A in only 27 opinions, in 22 of which the Justices quoted or paraphrased only "the right of the people to keep and bear arms" language, without even mentioning the Militia Clause. Of the five remaining case, the only one that even leans in the collective rights direction is Lewis v. United States (1980), and it could be equally well explained as preventing only ex-felons from keeping guns.

The first problem with the “militia interpretation†is that the 2A speaks of a right and appears in the Bill of Rights. (Powers with respect to the militia are enumerated in Articles I and II of the Constitution.) No other amendment of the original ten speaks of the States having rights. Nowhere, moreover, are rights recognized for government but denied to the people. As Rabbi pointed out, it is an untenable position to argue that while the Framers used the term "the people" to mean individuals in the First, Fourth, Ninth, and Tenth Amendments, they suddenly used the same term to mean "the States" in the Second.

<o:p></o:p>

Based on this research, I have a hard time understanding anyone’s argument that the 2A does not confer an individual right. If the Framers meant to say that States have a right to arm militias or that only militia members have a right to guns, they simply could have said, "the right of the States to organize and arm militias shall not be infringed," though that would have contradicted Article I, Section 8, which delegated that power to Congress; or, they could have written, "the right of members of the state militia to keep and bear arms shall not be infringed," though that would have contradicted Article I, Section 9, which forbids the States to "keep Troops…in time of Peace." As we can see from the 10^th Amendment, they were capable of saying "States" when they meant States and "people" when they meant people. <o:p></o:p>

<!--[if !supportEmptyParas]--> <!--[endif]--><o:p></o:p>

[midtennchip]

Nice to have someone with actual legal training to comment. Thanks.

But hanging anything on a SC reversal is pretty desperate. Plessy was decided in 1893 (iirc) and reversed by Brown in 1958. I dont want to wait 65 years (by which time I'll probably be dead or too old to shoot).

Rabbi, I agree. A decision in Heller against us would be a big blow, and I don't want to wait for a subsequent decision or a legislative act (which is another way to overturn the decision from a practical sense). But, if the decision does go against us, it will likely be a decision that only affects federal enclaves, not the states. The Appeals Court ignored that issue, but the gun control advocates will use it as a carrot for the liberal Justices to justify a gun control result.

[midtennchip]

cstandi, thanks for your service. Luckily, you also show a great understanding of the issues you face in that service. Unfortunately, the "militia" is already "federalized." (see Articles I and II of the Constitution and the current Militia Act). Also, even if the federal government didn't control the "militia" legally, it always has the ability to "persuade" through funding (as you noted). This would also apply to PDs and sheriff departments, as well. Just cut funding (or more likely tie funding to specific actions, like they've done with road funding over the years), and the feds can effectively control any branch of government it wishes. There certainly are checks and balances, but they have been fairly ineffective in many other "federally mandated" programs (TennCare, for example).

Good luck in your new endeavor!