From the Report of the Subcommittee on the Constitution of the Committee on the Judiciary,

---
Master Index Current Directory Index Go to SkepticTank Go to Human Rights activist Keith Henson Go to Scientology cult

Skeptic Tank!

------------------------------------------------------------------------------ From the Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, 97th Congress, Second Session (February 1982): The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner. ------------------------------------------------------------------------------ The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. -- Supreme Court, United States v. Miller et al., 307 U.S. 174 I can provide the section of the U.S. Code that provides that "the militia of the United States consists of all able-bodied males at least 17 years of age" with very few exceptions. Some females are also included. ------------------------------------------------------------------------------ The following is from Mark Moritz: Any intelligent person who wishes to study the matter seriously should begin with S. Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637. Professor Levinson (University of Texas) is a devout liberal (as am I) who set out to prove once and for all that the Second Amendment does not protect an individual right (etc. ad nauseam, per Sultan). To his great embarrassment (hence the title), he found overwhelming evidence to the contrary. He had the academic integrity to admit it, for which he deserves great admiration. He does not like gun ownership, any more than some people like flag-burning or organized religion, but he recognizes that the individual right exists, whether one likes it or not. The Court most recently mentioned the Second Amendment in dicta in United States v. Verdugo-Urquidez, 110 S. Ct. 1839 (1990). Verdugo-Urquidez was a citizen and resident of Mexico, and a drug dealer. The Mexican police arrested him in Mexico, and brought him to the U.S., where the U.S. cops arrested him. With the permission of the Mexican police, the U.S. narcs searched his residence (in Mexico), and found documentary evidence detailing drug shipments to the U.S. Verdugo-Urquidez moved for suppression of that evidence as a violation of the Fourth Amendment prohibition against unreasonable searches and seizures. The question for the court: Does the Fourth Amendment apply to non-resident non-citizens outside the U.S.? The answer: no. The court's reasoning: The Fourth Amendment protects the right of "the people" to be secure against unreasonable searches and seizures. Who are "the people"? According to Chief Justice Rehnquist, the phrase "the people" was a term of art used by the Framers. Rehnquist wrote: The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1, ("Congress shall make no law ... abridging ... the right of the people peaceably to assemble"); Art. I, s 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. 110 S. Ct. at 1061. Since Verdugo-Urquidez is not part of "the people," he is not protected by the Fourth Amendments (nor, apparently, by the First, Second, Ninth, or Tenth). The Supreme Court therefore views the words "the people" in the Second Amendment to have the same meaning as in the First, Fourth, Ninth, and Tenth Amendments. If "the people" really meant the right of states to maintain a militia (as suggested by J. Sultan), then we would be left with the absurd notion that only the states have the right to peaceably assemble, only the states have the right to be secure in their persons and property, etc. The Supreme Court's position is indisputable: the Second Amendment protects the individual right to bear arms. Anti-gunners frequently use the "big lie" technique referred to by D. Malbuff, to the effect that "the Supreme Court has consistently ruled that the Second Amendment does not apply to individual citizens; it only protects the right of the National Guard to go duck hunting." Here is a nutshell history of Supreme Court rulings on the Second Amendment: United States v. Miller, 307 U.S. 174 (1939). Mr. Miller was a very bad dude, charged with a laundry list of heinous crimes. They threw the book at him, including carrying a sawed-off shotgun, a violation of the National Firearms Act of 1934. When his case came up before the Supreme Court, Miller had skipped; he was a fugitive. No lawyer appeared to argue his side of the case; only the government lawyers showed up. (Some fair trial, huh?) Now, if the Second Amendment only protected the state militia, the case would have been easy. All the court would have had to do was say that Miller could not own a gun because he was not a member of the militia, end of discussion. But they didn't say that. Why not? In effect, they conceded that the Second Amendment protects an individual right, but still said that it was constitutional for the government to prohibit sawed-off shotguns. Their reasoning? Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. There are three interesting things about the court's statement. First, of course it was not in their notice; nobody was present to bring it to their notice! Second, had a knowledgeable advocate been present, he would have brought to the court's notice that short-barrelled shotguns have long been used as ordinary military equipment, from Revolutionary War blunderbusses to luparas in the Spanish-American War to trench-cleaners in The War To End All Wars. Subsequently, U.S. troops used sawed-off shotguns in World War II, and "tunnel rats" used them in Vietnam. Third, and most important, is that the court seems to be saying that the Second Amendment only protects the right of individual citizens to have "ordinary military equipment." Very interesting. What are semi-automatic "assault rifles" if not ordinary military equipment? When California's assault rifle ban reaches the Supreme Court, Miller will present a real problem for the anti-gunners. [...] Perhaps the Supreme Court's most infamous decision was Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Chief Justice Taney said that Negroes could not be "citizens," because if they were, they would have the right to vote, to assemble, to speak on political subjects, to travel freely, and "to keep and carry arms wherever they went." Id. at 417. Taney, the classic racist, found that prospect inconceivable. It is noteworthy, though, that the Supreme Court considered the right to carry guns wherever they go an individual right of every citizen, along with voting, speaking, assembling. "Nor can Congress deny the people the right to keep and bear arms, nor the right to trial by jury, nor compel anyone to be a witness against himself. . . ." Id. at 450. Obviously, "the people" refers to all citizens, not the states or militia, or the rest of the sentence becomes meaningless. See Verdugo-Urquidez, supra. ------------------------------------------------------------------------------ Here are some interesting quotes on the subject contemporaneous with the writing of the Second Amendment: "I ask, sir, what is the militia? It is the whole people, except for a few public officials." (George Mason) "What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. ... Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins." (Rep. Elbridge Gerry of Massachusetts, spoken during floor debate over the Second Amendment) "...but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formitable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights..." (Alexander Hamilton speaking of standing armies in Federalist 29.) "Besides the advantage of being armed, which the Americans possess over the people of almost every other nation. ... Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms." (James Madison, author of the Bill of Rights, in Federalist Paper No. 46.) "The great object is that every man be armed" and "everyone who is able may have a gun." (Patrick Henry, in the Virginia Convention on the ratification of the Constitution.)[1] "That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of The United States who are peaceable citizens from keeping their own arms..." (Samuel Adams)[2] "...the people are confirmed by the next article in their right to keep and bear their private arms" (from article in the Philadelphia Federal Gazette ten days after the introduction of the Bill of Rights)[3] [1] Debates and other Proceedings of the Convention of Virginia,...taken in shorthand by David Robertson of Petersburg, at 271, 275 (2d ed. Richmond, 1805). [2] Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, at 86-87 (Peirce & Hale, eds., Boston, 1850) [3] Philadelphia Federal Gazette June 18, 1789 at 2, col.2 ------------------------------------------------------------------------------ Does the following quote mean that only public-school students may have books? _________________________________________-------_____________________ A well-schooled electorate, being necessary to the security of a free State, the right of the People to keep and read Books shall not be infringed. --- J. Neil Schulman --------------------------------------------------------------------- Excuse me Rick, but you couldn't be more wrong. The 2nd Ammend. does indeed protect the right of the individual citizen to keep and bear arms. This interpretation is upheld by the writings and speeches of all of the major players of the time. (Check the Federalist and Anti-Federalist Papers for a start.) It is upheld by every Supreme Court case that even mentions the 2nd as well as by the commentators of the court at the time of the respective decisions. Specifically, you should acquaint yourself with the following Supreme Court cases: Scott v. Sanford (1857) [Dred Scott] US v. Cruikshank (1876) Miller v. Texas Presser v. Illinois (1886) US v. Miller (1934) US v. Verdugo-Urquidez (1990) and as supplementary reading: Patsonne v. Pennsylvania Perpich v. Massachussetts (199?) In every Supreme Court case related directly to the 2nd (precious few), and in every case even marginally connected, the Court has ruled that either: 1) The 2nd protects the right of the individual citizen to keep and bear arms. 2) The militia is composed of all able-bodied citizens. In this century there are only two Supreme Court cases that even mention the 2nd. US v. Miller (1934) Court rules that the 2nd applies to individual citizen. Further states that the citizen has the right to keep and bear any arm which would be useful to a regular (infantryman). US v. Verdugo-Urquidez (1990) Case is about unreasonable search and seizure. In clarifying what is meant by the phrase "the people" as it relates to Fourth Amendment, the Court said that it has the same meaning as it does in the First, Second, Ninth and Tenth Amendments, that is, the individual citizen. In addition, United States Code Title X specifically identifies the militia as "all males between the ages of 17 and 45" Perpich v. Massachussetts states that the National Guard is not part of the militia, but rather a branch of the organized Federal Army. And on and on and on ......... Everything from historical commentary to modern case law is on the side of the individual interpretation.

---

E-Mail Fredric L. Rice / The Skeptic Tank