Who Repealed The Second Amendment?
And By What Authority?

 


IN SEARCH OF THE SECOND AMENDMENT:


    The Second Amendment is quite plain to most of us:

    A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.
    87% of us--the common people--understand that this Amendment refers to an individual right. The problem is, the "right" has been reduced almost to a nullity by Congress, the U.S. Supreme Court and our federal judiciary. Those individuals are almost all members of a class of people that--at the time of the ratification of the Bill of Rights--were considered only one step above the occupation of the common thief--lawyers.

    Their position in the courts has been that the "right" is a collective right and applies to the States, not the individual.

    A great number of "law professors" support that nonsensical viewpoint. See, e.g., Handgun Prohibition and the Original Meaning of the Second Amendment, Don B Kates, Jr., Volume 82 Michigan Law Review 204, 207, note 11 (1983).

    This "collective right" theory was first enunciated by the Kansas Supreme Court in 1905. Salina v. Blakesly, 72 Kansas 230; 83 Pacific Reporter 61 (1905). The theory is patently wrong. Handgun Prohibition, supra, page 211, note 31. As Mr. Kates, in Handgun Prohibition pointed out, the word "people" in the First and Fourth Amendments ("individuals") did not change meaning in the Second.

    Not to mention that "States Rights" received its death sentence at Appomattox in 1865.

    Mr. Kates position is borne out by the history of the ratification of the Second Amendment itself. See B. Schwartz, The Bill of Rights: A Documentary History, 1153-54 (1971).

    In testimony before the Senate Subcommittee to Investigate Juvenile Delinquency, Senator James L. Buckley (R.- N.Y.) reiterated this position during the course of discussion of proposed handgun regulation:

    At the time of the adoption of the Bill of Rights, this country's statesmen were concern with the need to protect citizen's from government itself, and the passage of almost two centuries has not negated the validity of this concern. The fact that Article I, Section 8, clause 16 of the Constitution grants Congress the power to organize, arm and discipline the militia clearly indicates a quite different intention for the Second Amendment.

    Congressional Record, S. 6889 (daily ed. April 28, 1975) (remarks of Senator Buckley).

    One must, of course, understand the meaning of the Constitution by the intent of those who wrote it. Ex Parte Bain, 121 U.S. 1 (1887).

    The American Bar Association supports "gun control." Handgun Prohibition, supra, note 13. As does the ACLU.

    Not surprisingly, these "scribble warriors" of the lawyers bar (and the major media in lock-step) are extremely protective of the First Amendment (freedom of speech and the press) while relegating the Second Amendment to merely a passing glance.

    My proof of this? Pick up a copy of West's United States Code Annotated, the volume titled Amendment 1 to 3, in almost any law library. The court cases explaining the First Amendment number from page 9 to page 947. The court cases addressing the Second Amendment number 949 to 955.

    Worse, many of the court cases cited in those pages are simply wrong. For example, in United States v. Oakes, 564 F. 2d 387, 394 (10th Cir. 1977), the judges (including Chief Justice Lewis, whose duty it was to keep the other "public servants"-- i.e., the judges--in line) held that the purpose of the Second Amendment was to preserve the effectiveness and assure the continuation of the state militia.

    Oakes was convicted of the possession of an unregistered machine-gun. Oakes had been "set-up" for the bust by a BATF agent. Your tax dollars at work.

    The judges' strained and twisted misuse of the word "militia" as referring to a body of troops sanctioned by the individual state is easily refuted.

    First, let's consider how Congress (the people we vote in and--not frequently enough--vote out) defines "militia" in clear and immutable terms:

    10 U.S.C. § 311 Militia: composition and classes

    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of Title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and female citizens of the United States who are members of the National Guard.

    Section 313 of Title 32 merely refers to those individuals who are already members of the National Guard. The nineteenth century Supreme Court flatly stated that, "the militia is all citizens capable of bearing arms." Presser v. Illinois, 116 U.S. 252, 265 (1886).

This has been true since the first Militia, Act 1 Stat. 271 (1792), enacted by the Congress. Today's Supreme Court, in the words of one law professor, ". . . shamefully refuses to discuss the issue."  The Embarrassing Second Amendment, 99 Yale Law Journal 637, 654 (1990). Another law professor pointed out, ". . . the Supreme Court admitted exceptions to the right to keep and bear arms but refuses to recognize the right itself. 2 William and Mary Law Review 381,405 (1960).

    Another law professor (for obvious reasons, I am only quoting the ones on "our side", you can get all the others on the "glass toilet") pointed out that the lower courts (those under the U.S. Supreme Court) generally have either adopted an interpretation that is implausible on its face, inconsistent with earlier Supreme Court precedent and unsupported by historical evidence about the intention of the Framers, or they have adhered to ancient precedents that treated the Bill of Rights as being inapplicable to the States.

    This particular law professor also pointed out that the Supreme Court, moreover, inscrutably denies all petitions for certiorari (discretionary review). The Second Amendment, Political Liberty, And The Right To Self Preservation, Vol. 39 Alabama Law Review 103 (1987).

    Professor Nelson Lund, who authored the above Alabama Law Review article (and whom I nominate to be U.S. Supreme Court Chief Justice), also pointed out other items of interest. On page 107, note 8, he states that "well-regulated" means "properly disciplined", not "government controlled". On page 112, note 24, he states that the "collective right" interpretation is virtually baseless (as in the Oakes decision). On page 114, he states that the militia was intended to be a counterweight to government military forces. Finally, he reminds us that federal judges have a duty to enforce the Constitution whether they agree with it or not.

    Put five men like Professor Lund on the U.S. Supreme Court and the NRA could fold up shop and go on to other concerns. The present Supreme Court could easily be impeached. Every federal judge takes a solemn oath to uphold the U.S. Constitution. 28 U.S.C. § 453. Violation of that oath is grounds for impeachment. U.S. Code Cong. & Admin. News, page 6896 (1990).

    Earlier Supreme Courts recognized that the right to keep and bear arms shall not be infringed by Congress. Presser, supra; also United States v. Cruikshank, 92 U.S. 542, 553 (1875).

    Today's Congress infringes on those rights on a regular basis--The Brady Bill, the "assault rifles" ban-- etc. etc. In order to do so Congress invokes the interstate commerce clause of the U.S. Constitution at Art. I, sec. 8, clause 3. Today's Supreme Court upholds that nonsense. Scarborough v. United States, 431 U.S. 563 (1977).

    How did we have our Second Amendment rights taken away (don't think Big Brother is finished yet) and for what purpose?

    Let's start with "how."

    Congress enacted a "tax" on sawed-off shotguns in 1934. Jack Miller and Frank Layton, from Oklahoma, drove a sawed-off shotgun into Arkansas and were indicted for that in 1938. The federal district court judge, Heartsill Ragon, simply quoted the language of the Second Amendment, declared the statute unconstitutional, and dismissed the indictment. United States v. Miller, 26 F. Supp. 1002 (W.D. Ark. 1939). Judge Ragon's published ruling covers about one-half page.

    That ruling was appealed by government prosecutors. Those prosecutors then "had their way" because neither Miller or Layton, who both had disappeared, presented their side of the issue to the Supreme Court.

    The Supreme Court ruled as follows:

    in the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. 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.

    Aymette v State of Tennessee, 2 Humph., Tenn., 154, 158

    Of the eight Supreme Court justices who voted for this, six had absolutely no military experience. The other two, Hugo L. Black and Stanley F. Reed, received the rank of captain of artillery (1917) and first lieutenant (1918) respectively without ever seeing combat or leaving American soil. James Clark McReynolds, who authored the opinion in Miller, had no military experience whatsoever. The then Chief Justice, Charles Evans Hughes, was apparently a pacifist, having been the chairman of the International Conference on Limitations of Armaments, elected to the League of Nations (the first try for a "U.N.") and who-knows-what else.

    Miller was held to be an outdated opinion as long ago as the beginning of WW II. Cases v United States, 131 F. 2d 916, 922 (1st Cir. 1942). Sawed-off shotguns have considerable utility as military weapons. From Trenches To Squad Cars, Black, The American Rifleman, June 1982, pg. 30.

    Ask anyone who has ever crewed on a tank which weapon he wants when an enemy soldier pries open a hatch cover: a rifle too awkward to get into position, a pistol that has to be aimed, or a sawed-off shotgun that merely has to be pointed straight up.

    As another law professor put it, most Gun Control Acts enacted by Congress are mere political grandstanding. Enforcement of Gun Control: A Victimless Crimes Analysis, 16 Criminal Law Bulletin 131, 132 (1980).

    Once the Supreme Court upheld the first violation of the Second Amendment, "grandstanding" by Congress increased. In recent years, the trickle of anti-Second Amendment violations has become a deluge.

    Why? Because when our Republic was first founded, the right to keep and bear arms was equated with the right to revolt. 2 William and Mary Law Review 381, 385 (1960). On page 393 of the same article the author quotes Patrick Henry, who sarcastically referred to the remote possibility that Congress would use the militia wisely.

    As Henry's contemporary George Mason pointed out, the most effective way to enslave a people is to disarm them. 3 The Papers of George Mason 1725-1792, page 1075 (Robert A. Rutland edition, 1970). A government resting on a minority is an aristocracy. That aristocracy is not safe without a standing army, an enslaved press and a disarmed populace. 82 Michigan Law Review 204, 228 (1983). Aristotle and Sen. Hubert H. Humphrey both made similar statements. Id., pages 232 and 271.

    Only governments have ever disarmed any considerable class of people as a means towards their enslavement. Free Speech For Radicals 104, T. Schroeder, (reprint edition 1969).

    The original intent of the framers of the Second Amendment was not only for the people to have the right to be armed, but to be armed at a level equal to the government. The History of the Second Amendment, 28 Valparaiso University Law Review, 1007, 1009 (1994).

    One of the fears of the framers of the Second Amendment was that the central government would bring into being a professional police force, precisely the kind of hireling body considered dangerous by conventional political theory. The Embarrassing Second Amendment, 99 Yale Law Journal, 637, 646 note 46 (1990).

    This has been recently demonstrated by the BATF and the FBI at Waco, Texas and Ruby Ridge, Idaho.

    You will notice that the "privileged elite" somehow manage to maintain control of their weapons (remember Sen. Ted Kennedy's bodyguards found with fully automatic guns in the Senate building in the 1980s ?) while constantly attempting to deprive the rest of us of ours. This isn't anything new. As long ago as the seventeenth century the English Stuart kings enacted the Game Act of 1671, 22 Corr. 2, chapt. 25, Section 3, limiting the possession of a firearm to English noblemen. In 1689, a year after the Stuarts were replaced by William and Mary, Englishmen got their guns back.

    In the next century the English government passed a law disarming the Scots. The Whig clans, to show loyalty and obedience to the English government, surrendered their weapons. The Jacobite Highland clans, hostile to the English government, hid theirs. In 1745 the friends of the government were disarmed while its enemies were in a state of preparation. Manners, Customs and History of the Highlanders of Scotland, Sir Walter Scott, pgs 89-90.

    In 1745 English government forces were soundly defeated at Prestonpans. The Scots lost to the English Army in 1746 at the Battle of Culloden, more attributable to their leaders' mismanagement than their lack of weapons.

    We have exactly the same problem. While the New York Times editorializes that ". . . the urban handgun offers no benefits. . . ", its publisher, Arthur Ochs Sulzberger, had a New York City permit to carry a gun at all times. As did gun prohibition advocates Nelson Rockefeller and former New York Mayor John Lindsay.

    Psychologist Dr. Joyce Brothers, who has publicly stated that men posses guns to compensate for sexual dysfunction, did not have a gun permit. Her husband did. Handgun Prohibition And The Original Meaning Of The Second Amendment, 82 Michigan Law Review 204, 207, note 11 (1983).

    Finally, we come to the end of the problem and the beginning of the solution: get rid of the people causing the problem. The NRA does an excellent job of targeting anti-Second Amendment politicians and defeating them. Unfortunately, the NRA (of which I am a member) appears to remain completely clueless as to the role of the federal judiciary in our disarmament. An occasional federal judge does appear to recognize that marksmanship is still important. Garett v Alexander, 477 F.Supp. 1035, 1051 (D.C. D.C. 1979) (". . . providing the United States with marksman for service to the country in the event of war) (Harold H Greene, District Judge).

    When an employee does not perform satisfactorily, you fire him.

    A Congressman you vote out of office.

    The process of getting a corrupt, arrogant or otherwise misbehaving federal judge off the bench begins on the floor of the House of Representatives. A Bill of Impeachment can be brought by a single member of that body, as Gerald Ford did to Abe Fortas in 1969.

    Write your Congressman and tell him what you want done, why (send him a copy of this article), and to whom. If he refuses, his re-election is a few months away.

(Editor's note:  written in 1996)

Michael H. Brown

Author of:     The Erwin Rommel School of Law: How to Defeat an Illegal Legal System

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