A growing body of serious research, led by eminent professors, historians, lawyers and Constitutional scholars, is providing overwhelming evidence that “the people” of the Second Amendment refers to you and me.That introduction is from the March 2007 issue of GUNS Magazine, where I review attorney and author David T. Hardy's new documentary, "In Search of the Second Amendment."
My conclusion:
David Hardy has given us an important tool to use in educating ourselves and others.Here's a brief summary about Mr. Hardy and his film:
David T. Hardy served as producer and director of In Search of the Second Amendment. He is an attorney and Second Amendment author, whose 1974 law review article, “Of Arms and the Law” played a key role in beginning the academic rediscovery of the Second Amendment.And now on to the interview...
Hardy is author of five books, including “Origins and Development of the Second Amendment” and the N.Y. Times bestseller “Michael Moore Is A Big Fat Stupid White Man,” which rebutted Moore’s slander of the NRA, Charlton Heston, and gun owners. He is also author of twelve law review articles, including one on firearms laws that has been cited by the U.S. Supreme Court and eleven of the thirteen U.S. Circuit Courts of Appeals.
“I spent thirty years researching the right to arms, and four years of my life creating this film. My purpose was to produce something not only educational, but compelling. There’s been enough preaching to the choir. I wanted to produce something that would win hearts and minds, that would convert anyone with an halfway open mind into someone who appreciates and values the American right to arms.”
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DC: There are plenty of books on the subject of the Second Amendment. Why do we need a DVD?
DH: There are indeed plenty of books on the right to arms -- almost all of them written by people interviewed in the documentary. If you want a thorough grounding in the Second Amendment, you can buy 2-3-4 of them, and spend a week or two reading them and trying to memorize their content. Or you can watch the movie, and learn all you need to know in two hours. And this time, you'll remember it all.
It's also great for educating your children, and winning over the undecided. A week's reading assignment will be a chore for the first, and laughed off by the second. Offer them an entertaining and educational movie, and you'll win them over.
I mean -- how many people have read a book on 18th century naval history, but watched "Master and Commander?"
DC: Give us a synopsis of your video—what should someone who is thinking of buying it expect?
DH: The *complete* story of the right to arms, beginning with the earliest Britsh law, moving forward to the colonies, the Constitution, and the Bill of Rights. From there to the earliest American legal commentators, all of whom said it was an individual right. Then the Black experience -- disarmed under Slave Codes, and then under the Black Codes, which led to the 14th Amendment (1868), which was meant to stop state disarmaments of people. Then the use of arms in the civil rights period -- "nonviolence" got the press, but a lot of civil rights workers survived because they were armed. Finally, the current value of the right to arms, genocide, preservation of democracy, 2.5 million defensive uses per year.
This isn't me talking (I do the narration, just to fill gaps) but twelve professors of constitutional law, attorneys, Prof. Kleck on the 2.5 million uses, two armed civil rights workers.
DC: What do you say to someone who says times have changed, that history is interesting but not relevant to the present? After all, it’s not like we have citizen militias any more.
DH: And we saw the impact of that in Hurricane Katrina. Organize people, and they're a pack. Don't, and in a disaster they become a helpless herd.
Several of the professors address just that question. At a practical level, Prof. Reynolds discusses how his idea of an international right to arms, to prevent genocide, is gaining some traction. Prof. Kleck discusses 2.5 million defensive uses. Two attorneys discuss how the police have no legal duty to protect you.
And Prof. Barnett points out that if people want others to respect their rights, they must be prepared to respect our rights to arms; any method that can be used to destroy the second amendment can be used to destroy any other right, as well.
DC: Who is your audience, or put another way, what’s your plan to get your message outside the circle of gun owners who agree with you, especially to people who have formed their opinions based on what they learned in school or picked up from the mainstream media?
DH: My first effort is to get it out there -- which means to activists. They can become an Army of Davids, to use Prof. Reynolds' book title. With this DVD, each gunowner can become a one-man or one-woman PR firm for the right to arms.
From there, I can try to expand, to radio talk shows, that manner of thing, and carry the message further.
To help them with that, I put a license on the website. After April 1, any purchaser can show the DVD on local cable TV without limit. The antis have no comparable tool. We can swamp them.
DC: You make a point of illustrating the role firearms played in the defense of civil rights. Why is it that today’s minority leaders not only don’t tell their followers about this history, but many actively promote citizen disarmament in the very communities where individuals are most at risk from violence?
DH: I suspect it's largely a matter of fashion. "Nonviolence" caught the media eye, and nobody is going to go against that tide. But the civil rights workers I have in the film said that, while the leadership back in New York or wherever was appealing to nonviolence, most civil rights workers went nowhere without a gun. One says that when he came into the office after being chased by the Klan, all the others asked him why he didn't use his gun, and he was startled when one pulled a revolver out of his pocket, gave it to him, and said it was a loaner, he had another one in the car.
DC: Do you think a bunch of academics are going to appeal to “ordinary” people?
DH: These ones will. All are incredibly articulate -- no eggheads here. Actually, law profs are rarely eggheads. They're training people to survive in a courtroom, not a library.
DC: Are you getting much help spreading the word from pro-gun organizations, gun magazines, websites, etc.?
DH: Some. NRA Civil Rights Defense Fund was very, very helpful. Gun Owners' Foundation helped, too. Paladin Press and Ruger helped as well.
Gun Owners and JPFO have ordered some to distribute, and some gun bloggers have helped to promote it. I've sent review copies to a number of gun magazines, but the only response has been from Gun Week, Soldier of Fortune, and you.
DC: What can supporters do to help you promote this documentary and expand its audience?
DH: Get one, or better yet two, and give the spare to your school or library. Show it on cable TV. If you have an email list, tell them about it.
DC: Assuming you recoup your production costs, what are your plans to grow your audience?
DH: If I can make enough, I'd like to start running ads (I had only enough for one to date) to get it out there. I'd also like to hire a publicist to lobby for radio talk show coverage.
I may this year start work on a followup that will deal with the history of the modern gun and antigun movements. I've got 30 years of research there, too. There's history there, and nobody's getting younger. We've already lost the two key players, Harlon Carter and Neal Knox.
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I'd like to thank Mr. Hardy for participating in this interview, and for putting up with my playing "Devil's Advocate" on a few of these questions.He has agreed to check in from time to time today to answer questions from WarOnGuns visitors. Please--it will be appreciated if everyone follows a few simple ground rules: Stay on topic, give others a chance, and keep your question brief. Just post your question below as a "Comment," and he will do the same--please also note that we don't expect him to be hostage to his keyboard all day waiting for queries to pop up. It's OK to ask a question if his answer to the previous one hasn't appeared yet--he'll get to them as he checks in.
I haven't established a cut-off time for this--he'll let us know when he needs to check out.
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Here's how you can order your own copy of "In Search of the Second Amendment":
Send check or money order for 24.95, plus $2 s&h (Arizona residents add $1.52 sales tax) to:
Second Amendment Films
8987 E. Tanque Verde
PMB 265
Tucson AZ 85749
Or click on the "Buy Now" Visa/Mastercard icon in the left margin of the documentary website.
UPDATE: INTERVIEW OVER, THANKS FOR CHECKING IN, BUT THIS TOOK PLACE FOR ONE DAY ONLY, SO COMMENTS ARE NOW CLOSED.
I'll start out with one I probably should have asked during the formal interview: I've read works by some 2A scholars-- including ones on "our side"-- suggesting that registration of guns is not necessarily out of line with the intent of the Founders, the rationale being they defined what weapons were acceptable for duty in the Militia Acts. My own take on this is that, while mustered, regulations and standards were indeed enforceable, that they could require you show up with this type shot and that much powder, etc., I find it an unsupported stretch to imply this means the government could then have authority over keeping tabs on what firearms you kept privately for non-militia purposes.
ReplyDeleteWhat laws of the period are they able to cite that would suggest otherwise, aside from the general requirement to muster iaw specifications? To me, the position I have heard some of these academics take is not only extremely dangerous, I don't see how it could be considered anything BUT an infringement. Especially since people "scrupulously conscientious" were excused from militia duty, but that did not mean they couldn't keep arms for hunting, etc.
Your thoughts?
I'd agree... the militia laws required proving that you owned *at least one* gun of the required type. As I sometimes put it, in the 2nd amendment the right to arms clause means you have the right to choose how many arms you want, and the militia clause means that Congress can punish you if the answer is "none."
ReplyDeleteA point that Prof. Barnett makes (not in the documentary, I was running out of time!) is that while some regulation may be allowed, what is clearly out of line is disarmament, and anything that is conducive to that. Of what value is registration? I've never heard of a single case in which it solved an offense. It could only do so if (1) the offender actually registered his gun in his name and (2) he left it behind at the scene of the crime, or thoughtfully allowed the victim to hold it long enough to write down the serial number. Never happens.
So the only real value of registration is to make confiscation easier. (That's underscored by recent proposals to criminalize failure to report a theft; in some the sponsors came right out and said this was meant to rule out a person with a registered gun later claiming it had been stolen).
Hello Mr. Hardy,
ReplyDeleteFirst; Good morning. And, let me thank you for your efforts in our cause. (As well as David C., who made this discussion possible here).
Second; why has the legal system been able to dismiss "the Transcendent laws of Nature and of Natures God"? The very laws used to justify Independence and for ushering in the Constitution? Of which, the first law is;
"The First Law of Nature is that every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and advantages of war."
Third; how is it that the courts are getting away with using "stare decisis". Rather than ruling by the demanded "Fundamental Law". Which is the whole intended purpose of Constitution. By the use of "stare decisis" they thereby made the Constitution a moot point, correct? Or, am I missing something here?
Why can't we get back to "basics", and stay there?
Another thing that I do not understand is the coupling of the "right" dependent upon being in the "militia". The right stands on its own, and is preexistent. (As you well know).
ReplyDeleteThe Preamble to the Bill of Rights itself, discounts the premise of contingency upon militia duty. To Wit:
"The Conventions of a number of the States having, at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution;"
"Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring, that the following articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States; all or any of which articles, when ratified by three-fourths of the said Legislatures, to be valid to all intents and purposes as part of the said Constitution, namely:"
"Amendment II"
Declaratory clause;
A well regulated militia, being necessary to the security of a free state,
Restrictive clause;
"the right of the people to keep and bear arms, shall not be infringed."
The Senate Journal of Sept. 9, 1789
proves this fact:
“...On motion to amend article the fifth, by inserting these words, 'for the common defence,' next to the words 'bear arms:'"
“It passed in the negative."
“On motion to strike out of this article, line the second, these words, 'the best,' and insert in lieu thereof 'necessary to the:'
“It passed in the affirmative.
“On motion, on article the fifth, to strike out the word 'fifth,' after 'article the,' and insert 'fourth,' and to amend the article to read as follows: 'A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.'
“It passed in the affirmative....”
“...Resolved, That the Senate do concur in the resolve of the House of Representatives, on "Articles to be proposed to the legislatures of the states, as amendments to the constitution of the United States," with the amendments; two thirds of the Senators present concurring therein.
“Ordered, That the Secretary do carry a message to the House of Representatives accordingly.
'for the common defence'(?)
"It is a fortunate thing that the objection to the Government has been made on the ground I stated; because it will be practicable, on that ground, to obviate the objection, so far as to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the Constitution, which is considered as essential to the existence of the Government by those who promoted its adoption...."
"In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature."
- James Madison, June 8, 1789 House of Representatives, Amendments to the Constitution 8 June
"...If their ideas should succeed, a principle of mortality will be infused into a government which the lovers of mankind have wished might last to the end of the world. With a mixture of the executive and legislative powers in one body, no government can long remain uncorrupt. With a corrupt executive, liberty may long retain a trembling existence. With a corrupt legislature, it is impossible: the vitals of the Constitution would be mortified, and death must follow in every step. A government thus formed would be the most formidable curse that could befall this country. Perhaps an enlightened people might timely foresee and correct the error; but if a season was allowed for such a compound to grow and produce its natural fruit, it would either banish liberty, or the people would he driven to exercise their unalienable right, the right of uncivilized nature, and destroy a monster whose voracious and capacious jaws could crush and swallow up themselves and their posterity."
- Fisher Ames, House of Representatives, June 16, 1789.The Debates in the Several State Conventions on the Adoption of the Federal Constitution [Elliot's Debates, Volume 4]
“Agreed to found our Rights upon the Laws of Nature....”
And as far as "well regulated" goes. In my studies it shows that they have simular arms, (bore size specifically), and acroutments to answer the same end.
ReplyDeleteHere is the first mention of "well-regulated" that I've found:
George Washington to William Livingston
Head Quarters, Morris Town, January 24, 1777.
Sir: The irregular and disjointed State of the Militia of this Province, makes it necessary for me to inform you, that, unless a Law is immediately passed by your Legislature, to reduce them to some order, and oblige them to turn out, in a different Manner from what they have hitherto done, we shall bring very few into the Field, and even those few will render little or no Service. Their Officers are generally of the lowest Class of People; and, instead of setting a good Example to their Men, are leading them into every Kind of Mischief, one Species of which is, Plundering the Inhabitants, under pretence of their being Tories. A Law should, in my Opinion, be passed, to put a Stop to this kind of lawless Rapine; for, unless there is something clone to prevent it, the People will throw themselves, of Choice, into the Hands of the British Troops. But your first object should be a well regulated Militia Law; the People, put under good Officers, would behave in quite another Manner; and not only render real Service as Soldiers, but would protect, instead of distressing, the Inhabitants. What I would wish to have particularly insisted upon, in the New Law, should be, that every Man, capable of bearing Arms, should be obliged to turn out, and not buy off his Service by a trifling fine. We want Men, and not Money. I have the honor to be, etc.99
[Note 99: The draft is in the writing of Tench Tilghman.]
- [The George Washington Papers at the Library of Congress, 1741-1799]
The Writings of George Washington from the Original Manuscript Sources, 1745-1799. John C. Fitzpatrick, Editor.
From study of the debates concerning the Constitution. And the latter debates specifically concerning the Bill of Rights. The following was the main reasoning used to bring about the Second Amendment:
ReplyDeleteJournals of the Continental Congress, "...impolitic and not to be reconciled with the genius of free Govts...", Feb. 19. 1787
Letters of Delegates to Congress, "...An Act to disarm and Disfranchise for three years...", Feb. 27th, 1787
Letters of Delegates to Congress, "...this act has created more universal disgust than any other of Government...", March 6, 1787
Armed rebellion against government is a felony, yes? Perhaps even bordering of treason?
I contend that "The Right of the People to Keep and Bear Arms shall NOT be infringed" means PRECISELY what is written. And that ALL government was explicitly denied ANY delegated authority over arms in the hands of the People.
That only punishments could be affixed for misuse or abuse of that right. Just as is the case with the written or spoken word. They are NATURAL rights, and they CANNOT be lawfully prevented from being used. Especially the Right to arms, as it is necessary to exercise the First Law of Nature.
All 'gun control' is based upon cowardice, and/or lack of faith in ones ability to defend against aggression.
"Stay on topic, give others a chance, and keep your question brief."
ReplyDeleteAnonymous said...
ReplyDelete"Stay on topic, give others a chance, and keep your question brief."
1. TOTALLY "ON TOPIC"
2. What "others".
3. You got me on "brief".
I apologize that the comments I've posted are indeed long. However, I believe, that they get down to the crux of our problem.....
1. Courts are uncomfortable *admitting* that they base a decision on other than text. (note I say "admitting" -- look at Roe v. Wade, where they found a right somewhere "in the penumbra" of the Bill of Rights). It's an outgrowth of what's known as legal positivism, which essentially sees rights not as natural but as man-made and serving a purpose.
ReplyDelete2. Stare decisis -- long story. Sanford Levinson has written an interesting analysis saying that constitutional thought breaks down along the same lines that religious thought did during the Reformation and Counterreformation.
"Catholic" constitutionalism: there is an institution created to interpret the document, staffed by experts (the Supreme Court), and which must make its future decisions consistent with its previous ones, and be reluctant to change (in the case of law, because that's instability, and in both cases, because that means admitting we were wrong).
"Protestant" constitutionalism: every man his own priest, as Luther said, or in this case his own interpreter. Everyone has an obligation to seek meaning to the best of his ability, and should not accept a meaning in which he does not believe simply because an institution tells him it is so.
Right vs. militia: the antigun side wants to equate the two. I argued in a 1985 law review article that they are completely different issues. There were two relevant political groups at the time of the framing. Classical Republicans believed that a stable republic required that property owners vote and be in the militia. A hired army would either be strong enough to take over, or weak enough to leave you vulnerable. But a militia could be powerful without risk -- being property owners, they couldn't take over to seize property, and being voters, they couldn't do it to seize power.
But alongside that was another movement, then called Radical, now called Jeffersonianism. This was for letting non-propertyowners vote, and placed a lot more emphasis on individual rights.
That's why the amendment has two clauses. They had to appease two bodies of critics of the original constitution. One group (Geo Mason) wanted a militia guarantee. The other (Jefferson) wanted an individual right to arms. So the first congress pleased both of them. If it'd just wanted to do the first, it would have stopped with the militia is necessary to the security of a free state.
Gotta remember that the first congress hacked away at Madison's proposals. Many amendments lost a third of their words. They didn't leave one surplus word in there. But they kept two separate clauses in the second amendment, because they were two different ideas.
4. Well-regulated meant armed and trained -- I found a reference to "a body of well-regulated troops" from the 1600s. It made no sense to say that just a militia was necessary -- the militia is every adult male, so every government, good or bad, would have one. A major concern then was supply -- how do you provide ammo if everyone has a musket of different bore?
I found a reference in the debates over the Militia Act of 1792 that was interesting. A congressman proposes to have the gov't issue arms to the poor and the young. It is voted down, with the argument against being that the arms would be government property, and the people would be suspicious that the new government was doing this just so as to be able to reclaim the guns and disarm many people.
And the "common defense" is portrayed in the documentary. I found the original Senate Journal, and put the image in the film.
Does the right to bear arms protect the right to carry a gun, whether openly or concealed? Or does it protect the right to serve in a militia? Or maybe both?
ReplyDeleteIn your documentary you went over how the language of the Second Amendment was drafted. Specifically:
"A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person."
That was later cut and rearranged to the text that everyone on this blog has come to know and love. But it seems that bearing arms here was used in a military context—serving in the militia.
Thomas Cooley's comments were also in your film, and he read it in a military context:
"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."
But then there's the Pennsylvania constitutional provision from 1776: "[t]hat the people have a right to bear arms for the defence of themselves and the state," which is clearly an individual right. And there's the Dred Scott case where Chief Justice Taney acknowledged if blacks were considered US citizens, they'd have the right to "keep and carry arms wherever they went." Taney's clearly reading the right to bear arms as the right to carry them.
And the debate among Congress during the framing of the Fourteenth Amendment also read the right as the right to carry arms. Akhil Amar points this out in your film. The 14A was meant to overturn the Dred Scott decision.
So if the 2A didn't protect the right to carry a gun, would you say that the right is protected by the (Ninth and) Fourteenth Amendment? Or maybe the 2A does protect the right to carry, and this ultimately protects the militia, because people can peaceably assemble (let's add in the First Amendment) while carrying guns, and train together?
Thank you Mr. Hardy for your detailed attention. And, once again I apologize for the length and depth of the info. submitted.
ReplyDeleteWhat are your ideas, as to how We The People can get things back to the way they were intended?
Realize that a majority is paramount. But, wasn't one of the main purposes of the Constitution to protect the rights of the minority? (Which, as it appears. we gun owners are. Howbeit a quite substantial one).
My thought is to promote fear of tyrannical government, rather than fear of guns. Which of course was one of the main thrusts of the anit-federalists during the debates, (though fear of arms was typically only displayed by the "religiously scrupulous").
Cooley's explanation (for those who don't know, Thomas Cooley was THE name in constitutional law in the late 1800s) was interesting, because he takes a militia-oriented view and then explains why this means it must be treated as an individual right. It would make no sense to have a check on government abuse be something that the government could undo at will. Since the government could always redefine who was in the militia, or even perhaps say that nobody was in it, it would be nonsensical to have the right limited to militiamen.
ReplyDeleteOn the 14th amendment, in the film Akhil Amar makes the point that the original vision of the 2nd amendment was individual but communal and political. An armed people would prevent a tyrannical federal government, esp. if organized into a state militia.
ReplyDeleteThen the 14th Amendment transforms this and broadens it. The framers of the 14th talk in terms of blacks and union vets being disarmed and murdered by the Klan, and they want to stop this. The vision is now purely individual. An individual shooting a thug coming thru the door of his cabin -- and even if the thug was working for the state government. It's not militia vs. tyrants, it's you vs. the burglar.
Which, by coursee of Natural reason and logic, brings us right back to;
ReplyDelete"The First Law of Nature is that every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and advantages of war."
Correct?
In my opinion, this provides the exact reason why the founders decided to "lay our Rights upon the broadest Bottom, the Ground of Nature". - John Adams, "Notes of Debates" 9/08/1774.
Hamilton, Jefferson, Lee, Madison, Mason, Washington and others all planted our Rights on the same grounds.
James Wilson held out that the laws of Nature were "immutable". And others as being "Inalienable". If expressly declared as such, how then can they possibly be legally "alinated"?
The House and Sente of 1856 held the same opinion. To Wit;
ReplyDelete"Sec. 16. And be it further enacted. . . . And in the just preservation of rights and property, it is understood and declared that no law ought ever to be made or be in force in said Territory that shall in any manner interfere with or affect private contracts or engagements bona fide and without fraud previously proved. And the people of said Territory shall be entitled to the right to keep and bear arms, to the liberty of speech and of the press, as defined in the constitution of the United States, and all other rights of person or property thereby declared and as thereby defined.
"Sec. 17. And be it further enacted, That the following propositions be, and the same are hereby, offered to the said convention of the people of Kansas, when formed, for their free acceptance or rejection, which, if accepted by the convention and ratified by the people at the election for the adoption of the constitution, shall be obligatory on the United States and upon the said State of Kansas, to wit:...."
Journal of the House of Representatives of the United States, SATURDAY, June 28, 1856.
The Senate took it a step further;
Sec. 18. And be it further enacted, That inasmuch as the Constitution of the United States and the organic act of said Territory has secured to the inhabitants thereof certain inalienable rights, of which they cannot be deprived by any legislative enactment, therefore no religious test shall ever be required as a qualification to any office or public trust; no law shall be in force or enforced in said Territory respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble and petition for the redress of grievances; the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized; nor shall the rights of the people to keep and bear arms be infringed...."
- Journal of the Senate of the United States of America, TUESDAY, July 8, 1856.
Not one mention of 'militia' that I can see, do you?
A court can alienate just about anything, and anyone! (grin).
ReplyDeleteThe concept of inalienable rights dates back to Thomas Hobbes in the 17th century. He first postulated rule as a product of consent, rather than the divine right of kings. In the state of nature, we have a "right" to do anything. Murder, arson, etc., with others of course having a right to do the same to us. We give up, alienate, some of those rights when we form government, in the hopes that it will protect us.
To Hobbes, there was only one right that was inalienable -- the right of self defense. Since we give up rights in order that the government defend us, self-defense is the one thing that could never be given up. The only time it comes into play is when the government breaches its end of the bargain.
True. However we specifically set aside this specific right from being "alienated", or being altered by "any legislative act", correct? If there is a true precedent forbiiding any "infringement", how then can it legally "infringed" upon. It is then left upto "implication" and "arbitrary" decision, corrct? How can it possibly be held that they have the power, much less the delegated authority, to do that which they are forbidden to do? I contend that they cannot. And, as noted in Marbury Vs. Madison, 5 U.S. (2 Cranch) 137 (1803);
ReplyDelete"All laws which are repugnant to the Constitution are null and void."
Federalist #78 and #84 expands on the subject in detail. And, was not the Federalist the means employed to sell the Constitution to We The People? oesn't it thereby make the Federalist part and parcel of the compact? The Supreme Court certainly USED to express that sentiment;
"The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution, and is appealed to by all parties in the questions to which that instrument has given birth..."
- The U.S. Supreme Court, Cohens v. Virginia (1821).
What has changed? And, of far more importance, how could it possibly be changed? I contend that it cannot, not in a TRULY Consttutionally legal manner anyways....
What is the purpose of a Constitution if it can be arbitrarily negated by legislative or judicial acts?
And, please Mr. Hardy, don't conceive that what I am questioning, or the argument I offer is directed at you. That is NOT my intent. Rather, it is to enlighten all those whom may be reading this. As to fill them with the proper degree of outrage for how our intended system is being perverted.
ReplyDeleteI'd quite agree. But I'm saying *in practice* courts find ways around things, if they really want to. Congress shall "make no law" abriding freedom of speech -- which seems pretty clear and strong language to me -- becomes Congress can regulate the heck out of election advertising.
ReplyDeleteRight now we're in a battle just to get the courts to accept that there is an individual right to arms, on which the legal scholarship is now VERY clear, with all the big names in Con law -- Amar, Levinson, Tribe, van Alstyne -- agreeing.
As the book The Brethren shows, there's a lot of judicial politics. The Court knew that the decisions allowing school segregation were worthless many years before it overruled them. It was scared of the public reaction, and so waited until it had a unanimous opinion and a clear case, and felt that public opinion had turned. So it let a clearly unconstitutional rule, one that it knew was wrong, endure for years, until the politics were right.
While I understand their reasoning and logic utilized as justification for the usurpation and tyranny. It by no means excuses such deviant straying from the rule by fundamental law. In fact, in my eyes it is an extremely flimsy as well as extraordinarily dangerous game to be playing. The right to keep and bear arms was one of the specific rights fought for in the Revolution. Infringement upon that specific right was, in fact, one of the very "sparks" that finally ignited the Revolution.
ReplyDeleteThe danger, as noted by James Madison on April 26, 1783, is quite clear, real and present. To Wit;
"Let it be remembered finally, that it has ever been the pride and boast of America, that the rights for which she contended, were the rights of human nature. By the blessing of the author of these rights, on the means exerted for their defence, they have prevailed against all opposition, and form at this time the basis of thirteen independent states. No instance has heretofore occurred, nor can any instance be expected hereafter to occur, in which the unadulterated forms of Republican government can pretend to so fair an opportunity of justifying themselves by their fruits. In this view the citizens of the United States are responsible for the greatest trust ever confided to a political society. If justice, good faith, honor, gratitude and all the other virtues qualities which ennoble the character of a nation, and fulfil the ends of government, be the fruits of our establishments, the cause of liberty will acquire a dignity and lustre which it has never yet enjoyed; and an example will be set which cannot fail to but have the most favourable influence on the rights of mankind. If on the other side, our governments should be unfortunately blotted with the reverse of these cardinal and essential qualities virtues, the great cause which we have engaged to vindicate will be dishonored and betrayed; the last and fairest experiment in favour of the rights of human nature will be turned against them, and their patrons and friends exposed to be insulted and silenced by the sycophants votaries of tyranny and usurpation."
- James Madison, Journals of the Continental Congress, Address to the States, by the United States Congress Assembled.
Our freedom, liberty, nay, our very lives as well as those of our posterity are at stake in this perverse contest with our own SERVANTS. It needs stopped, and reversed A.S.A.P. Or, the only avenue that will remain for us, is a Revolutionary one. Hence, we find ourselves going right back to the First Law of Nature.
With regard the admission of Kansas, in the movie Prof. Levinson points out that the Republican platform of 1856 specifically referred to the right to arms, with a protest that Kansans were being deprived of the right, and the Democratic platform of 1864 did so, too, with a protest that Marylanders were being disarmed. Between that and Dred Scott, where the Supreme Court referred to the right to "keep and carry arms whereever they went," it's very clear that in the mid 19th century everyone saw the right as an individual one.
ReplyDeleteI have a segment in the documentary tearing apart the collective rights view. Law profs explaining how it was invented by the Kansas Sup. Ct. in 1905, long after the framers were dead. The Kansas court itself abandoned the view in later cases, but then the federal circuit courts picked it up. It makes no sense, esp. since the legislative history of the acts that created the National Guard show congressmen acknowledging that the NG is NOT the militia of the constitution. The whole idea was to have a reserve force that got around the limits on deploying militia (which were essentially domestic, not fighting overseas ... repel invasion, suppress insurrection, and execute the laws of the Union, nothing about fighting in France there).
I'm a bit late at this, hopefully you're still checking in...
ReplyDeleteDo you think today's Supreme Court would take on a clear 2A individual v. collective case, and if so, how would they decide? Is SCOTUS today more textual or policy-oriented?
David H. - You mentioned that; "but then the federal circuit courts picked it up".
ReplyDeleteAnd, indeed they did. To Wit;
"The Constitution and laws of the United States "are the supreme law of the land," anything in the Constitution or laws of any State to the contrary, notwithstanding." Their supremacy is thus declared in express terms: "Whatever conflicts therewith has no operative or obligatory force. Allegiance to the United States, and loyalty to the United States Constitution and laws, are the paramount duty of every citizen. Within their legitimate sphere, they command the obedience of all, and no State Coustitution or statute can absolve any one therefrom. . . . As it is both the right and duty of every citizen to become fully informed upon all governmental affairs, so as to discharge his many political obligations intelligently at the ballot-box, and in other legitimate ways; and the freedom of the press and of speech are guaranteed to him for that as well as other essential purposes; and as the right of the people peaceably to assemble and petition for the redress of grievances, and to keep and bear arms, cannot be lawfully abridged or infringed..."
- U.S. Circuit Court, DISTRICT OF MISSOURI, SPECIAL TERM, July 10, 1861. "TO THE GRAND JURY"...
Is this supposed to be where we ask questions or submit essays?
ReplyDeleteAnonymous said...
ReplyDeleteIs this supposed to be where we ask questions or submit essays?
Funny. As I thought it was a discussion with someone that's in the 'know'. In order to exchange information and ideas so that we can win back our right....
Today's Supreme Court... I think we'd have four votes (Scalia and Thomas, 100% sure, and probably the two new guys). The question is whether we could find a fifth among the others, and there I can find no clue (except that Breyer never saw a law he didn't like, unless it was on abortion, so I'd count him as lost).
ReplyDeleteDuring his confirmation hearings, CJ Roberts as much as said he'd vote to take a 2nd amendment case, to resolve the split between the 5th and 9th circuits. He remembered the name of the 5th Cir. case, and discussed Miller. Lot of familiarity with what is, to most judges and law profs, an obscure area. I'd say he'd done some homework, and not just for confirmation.
Is this a change? I dunno. I think Rehnquist was pro individual right (otherwise why would he have slipped that language in Verdugo-whatever?). O'Connor I have no idea about, but she was pretty unpredictable in general.
We may know soon. There's the case of Parker v. DC pending in the DC Circuit, argued about six weeks ago. I'd say it's 100% likely that whoever loses in the circuit will bring it to the Supremes.
Just got in from a full day and a late meeting--looks like I've got some catching up to do reading this thread--I hope all have found this worthwhile.
ReplyDeleteI have a question, but this time, it's not for David Hardy--it's for the rest of you who have read this interview and/or contributed with questions:
How many of you are now going to go out and buy this landmark DVD?
This man has created something unique--a tool we have never had in our kit before, one that can be shared and used as a force multiplier.
Are you going to take advantage of it, and basically spring for the price of a box of ammo?
I think it's a fair question to ask at this point. Anybody disagree?
Sold.
ReplyDelete