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Category Archives: Second Amendment

The Second Amendment was ratified to preserve slavery

Posted: July 12, 2016 at 6:19 am

The real reason the Second Amendment was ratified, and why it says State instead of Country (the Framers knew the difference see the 10th Amendment), was to preserve the slave patrol militias in the southern states, which was necessary to get Virginias vote. Founders Patrick Henry, George Mason, and James Madison were totally clear on that . . . and we all should be too.

In the beginning, there were the militias. In the South, they were also called the slave patrols, and they were regulated by the states.

In Georgia, for example, a generation before the American Revolution, laws were passed in 1755 and 1757 that required all plantation owners or their male white employees to be members of the Georgia Militia, and for those armed militia members to make monthly inspections of the quarters of all slaves in the state. The law defined which counties had which armed militias and even required armed militia members to keep a keen eye out for slaves who may be planning uprisings.

As Dr. Carl T. Bogus wrote for the University of CaliforniaLaw Reviewin 1998, The Georgia statutes required patrols, under the direction of commissioned militia officers, to examine every plantation each month and authorized them to search all Negro Houses for offensive Weapons and Ammunition and to apprehend and give twenty lashes to any slave found outside plantation grounds.

Its the answer to the question raised by thecharacter played byLeonardo DiCaprio inDjango Unchainedwhen he asks, Why dont they just rise up and kill the whites? If the movie were real, it would have been a purely rhetorical question, because every southerner of the era knew the simple answer: Well regulated militias kept the slaves in chains.

Sally E. Haden, in herbookSlave Patrols: Law and Violence in Virginia and the Carolinas, notes that, Although eligibility for the Militia seemed all-encompassing, not every middle-aged white male Virginian or Carolinian became a slave patroller. There were exemptions so men in critical professions like judges, legislators and students could stay at their work. Generally, though, she documents how most southern men between ages 18 and 45 including physicians and ministers had to serve on slave patrol in the militia at one time or another in their lives.

And slave rebellions were keeping the slave patrols busy.

By the time the Constitution was ratified, hundreds of substantial slave uprisings had occurred across the South. Blacks outnumbered whites in large areas, and the state militias were used to both prevent and to put down slave uprisings. As Dr. Bogus points out, slavery can only exist in the context of a police state, and the enforcement of that police state was the explicit job of the militias.

If the anti-slavery folks in the North had figured out a way to disband or even move out of the state those southern militias, the police state of the South would collapse. And, similarly, if the North were to invite into military service the slaves of the South, then they could be emancipated, which would collapse the institution of slavery, and the southern economic and social systems, altogether.

These two possibilities worried southerners like James Monroe, George Mason (who owned over 300 slaves) and the southern Christian evangelical, Patrick Henry (who opposed slavery on principle, but also opposed freeing slaves).

Their main concern was that Article 1, Section 8 of the newly-proposed Constitution, which gave the federal government the power to raise and supervise a militia, could also allow that federal militia to subsume their state militias and change them from slavery-enforcing institutions into something that could even, one day, free the slaves.

This was not an imagined threat. Famously, 12 years earlier, during the lead-up to the Revolutionary War, Lord Dunsmore offered freedom to slaves who could escape and join his forces. Liberty to Slaves was stitched onto their jacket pocket flaps. During the War, British General Henry Clinton extended the practice in 1779. And numerous freed slaves served in General Washingtons army.

Thus, southern legislators and plantation owners lived not just in fear of their own slaves rebelling, but also in fear that their slaves could be emancipated through military service.

At the ratifying convention in Virginia in 1788, Henry laid it out:

Let me here call your attention to that part [Article 1, Section 8 of the proposed Constitution] which gives the Congress power to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States. . . .

By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither . . . this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory.

George Mason expressed a similar fear:

The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless, by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them [under this proposed Constitution] . . .

Henry then bluntly laid it out:

If the country be invaded, a state may go to war, but cannot suppress [slave] insurrections [under this new Constitution]. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it without the interposition of Congress . . . . Congress, and Congress only [under this new Constitution], can call forth the militia.

And why was that such a concern forPatrick Henry?

In this state, he said, there are two hundred and thirty-six thousand blacks, and there are many in several other states. But there are few or none in the Northern States. . . . May Congress not say, that every black man must fight? Did we not see a little of this last war? We were not so hard pushed as to make emancipation general; but acts of Assembly passed that every slave who would go to the army should be free.

Patrick Henry was also convinced that the power over the various state militias given the federal government in the new Constitution could be used to strip the slave states of their slave-patrol militias. He knew the majority attitude in the North opposed slavery, and he worried theyd use the Constitution to free the Souths slaves (a process then called Manumission).

The abolitionists would, he was certain, use that power (and, ironically, this is pretty much what Abraham Lincoln ended up doing):

[T]hey will search that paper [the Constitution], and see if they have power of manumission, said Henry. And have they not, sir? Have they not power to provide for the general defence and welfare? May they not think that these call for the abolition of slavery? May they not pronounce all slaves free, and will they not be warranted by that power?

This is no ambiguous implication or logical deduction. The paper speaks to the point: they have the power in clear, unequivocal terms, and will clearly and certainly exercise it.

He added: This is a local matter, and I can see no propriety in subjecting it to Congress.

James Madison, the Father of the Constitution and a slaveholder himself, basically called Patrick Henry paranoid.

I was struck with surprise,Madison said, when I heard him express himself alarmed with respect to the emancipation of slaves. . . . There is no power to warrant it, in that paper [the Constitution]. If there be, I know it not.

But the southern fears wouldnt go away.

Patrick Henry even argued that southerners property (slaves) would be lost under the new Constitution, and the resulting slave uprising would be less than peaceful or tranquil:

In this situation, Henry said to Madison, I see a great deal of the property of the people of Virginia in jeopardy, and their peace and tranquility gone.

So Madison, who had (at Jeffersons insistence) already begun to prepare proposed amendments to the Constitution, changed his first draft of one that addressed the militia issue to make sure it was unambiguous that the southern states could maintain their slave patrol militias.

His first draft for what became the Second Amendment had said: The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a freecountry[emphasis mine]: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

But Henry, Mason and others wanted southern states to preserve their slave-patrol militias independent of the federal government. So Madison changed the word country to the word state, and redrafted the Second Amendment into todays form:

A well regulated Militia, being necessary to the security of a freeState[emphasis mine], the right of the people to keep and bear Arms, shall not be infringed.

Little did Madison realize that one day in the future weapons-manufacturing corporations, newly defined as persons by a Supreme Court some have called dysfunctional,would use his slave patrol militia amendment to protect their right to manufacture and sell assault weapons used to murder schoolchildren.

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The Second Amendment was ratified to preserve slavery

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Minn. police shooting reignites debate over Second Amendment …

Posted: at 6:19 am

President Obama responded to the recent police shootings in Louisiana and Minnesota by recognizing the need to root out bias in law enforcement and encouraging communities to trust their local police department.

A memorial left for Philando Castile following the police shooting death of the black man on July 7, 2016, in St. Paul, Minn. 8(Photo: Stephen Maturen, Getty Images)

A black Minnesota man fatally shot by police Wednesday during a stop for a broken tail light was a licensed gun owner, prompting some observers to suggest that the debate over gun control and the Second Amendment has racial undertones.

When police in Falcon Heights, Minn.,stopped the car in which Philando Castile, 37, was riding on Wednesday night, Castile attempted to give them his license and registration, as requested. He also told them he was a licensed weapon owner, according to the Facebook Live video posted by Diamond “Lavish” Reynolds, who identified herself as Castile’s fiance.

As Castile put his hands up, police fired into his arm four times, according to the video. He was pronounced dead later at a hospital.

“I’m waiting to hear the human outcry from Second Amendment defenders over (this incident),” NAACP president and CEO Cornell William Brooks told USA TODAY Thursday.

Brookswas preparing to travel to Minnesota to get up to speed on the Castile case after a trip to Baton Rouge, La., to get details on the police-involved shooting of another black man earlier this week.

“When it comes to an African American with a license to carry a firearm, it appears that his pigmentation, his degree of pigmentation, is more important than the permit or license to carry a firearm,” Brooks said. “One would hope and pray that’s not true.”

Tweeted author and TV commentator Keith Boykin: “Does the Second Amendment only apply to White People?”

Amanda Zantal-Wiener, tweeted aboutthe National Rifle Association, perhaps the most powerful of the national organizations supporting the Second Amendment, saying: “Hey, NRA, I’m sure you’re just moments away from defending Philando Castile’s second amendment rights. Right? Any minute now, right?”

The NRA did not immediatelyrespond to a request for an interview. The organization has been publicly silent regarding the Minnesota shooting.

But at least two organizations, the Second Amendment Foundation and the Citizens Committee for the Right to Keep and Bear Arms, both based in Bellevue, Wash., expressed concern over the case and called for an investigation by state-level entities, perhaps even from a state outside of Minnesota.

“Wednesday nights shooting of Philando Castile is very troubling, especially to the firearms community, because he was a legally-armed private citizen who may have done nothing more than reach for his identification and carry permit,” Allan Gottleib, founder and executive vice president of the foundation, and chair of the Citizens Committee, said in a statement Thursday.

“We are cognizant of the racial overtones arising from Mr. Castiles death,”Gottlieb said. “The concerns of our members, and honest gun owners everywhere, go even deeper. Exercising our right to bear arms should not translate to a death sentence over something so trivial as a traffic stop for a broken tail light, and we are going to watch this case with a magnifying glass.”

Survey data show that white Americans and black Americans appear to have two different and distinct relationships with firearms.

Data released in 2014 by the Pew Research Center showed that blacks are less likely than whites to have a firearm at home.According to the study, 41% of whites said they had a gun at home compared to 19% of blacks.

But there has been much research to show that black Americans are more likely than white Americans to be gun homicide victims.

In 2010, blacks were 55% of shooting homicide victims but 13% of the U.S. population, according to a Pew review of data from the Centers for Disease Control and Prevention. By contrast, in the same year, whites were 25% of gun homicide victims but 65% of the population, according to the same data.

In the early days of the Second Amendment, blacks were prohibited from possessing firearms, according to the National Constitution Center, a nonprofit organization in Philadelphia. The measure was intended to protect Americans’ right to bear arms, and designated states as the entities who would manage this.

Gerald Horne, an historian at the University of Houston, said during a recent interview with the Real News Network that there was a race and class bias inherent in the amendment’s provisions.

“The Second Amendment certainly did not apply to enslaved Africans,” Horne said. “All measures were taken to keep arms out of their hands. The Second Amendment did not apply to indigenous people because the European settlers were at war with the indigenous people to take their land. And providing arms to them was considered somewhat akin to a capital offense. So the Second Amendment was mostly applicable to the settler class.”

Horne says that many of the battles during reconstruction were about keeping arms out of the hands of black Americans hesays one of the key reasons the Ku Klux Klan was formed in the post-Civil War era was to keep arms out of the hands of blacks.

Said Brooks, “I would just simply note that in a state like Texas, where we have thousands upon thousands of people with concealed weapons permits, a permit is sufficient proof to vote while a college ID is not. Think about that.”

Follow Melanie Eversley on Twitter:@MelanieEversley

USA TODAY

Obama, angered by police shootings, calls for elimination of racial bias

USA TODAY

Minn. governor: Castile would be alive if he had been white

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The Right to Bear Arms

Posted: at 6:19 am

Miller was subject to two possible interpretations. One, that the Second Amendment is an individual right, but that the right only extends to weapons commonly used in militias (the defendants in Miller were transporting sawed-off shotguns). The second–broader–view of Miller is that the Amendment guarantees no rights to individuals at all, and the defendants lost the case as soon as it was obvious that they were not members of a state militia.

In 2008, the U. S. Supreme Court, in District of Columbia vs. Heller, struck down a Washington, D.C. ban on individuals having handguns in their homes. Writing for a 5 to 4 majority, Justice Scalia found the right to bear arms to be an individual right consistent with the overriding purpose of the 2nd Amendment, to maintain strong state militias. Scalia wrote that it was essential that the operative clause be consistent with the prefatory clause, but that the prefatory clause did not limit the operative clause. The Court easily found the D. C. law to violate the 2nd Amendment’s command, but refused to announce a standard of review to apply in future challenges to gun regulations. The Court did say that its decision should not “cast doubt” on laws restricting gun ownership of felons or the mentally ill, and that bands on especially dangerous or unusual weapons would most likely also be upheld. In the 2008 presidential campaign, both major candidates said that they approved of the Court’s decision.

Heller left open the question of whether the right to bear arms was enforceable against state regulation as well as against federal regulation? In 1876, the Supreme Court said the right–if it existed–was enforceable only against the federal government, but there was a wholesale incorporation of Bill of Rights provisions into the 14th Amendment since then. In 2010, in the case of McDonald v Chicago, the U. S. Supreme Court held (5 to 4) that the 2nd Amendment right has been incorporated through the 14th Amendment’s Due Process Clause and is fully enforceable against the states. The Court, in an opinion written by Justice Alito, proceeded to strike down Chicago’s gun regulation insofar as it prohibited the private possession in the home of handguns for self-defense. Justice Thomas, concurring, would have held the right to bear arms to be a right protected by the Privileges and Immunities Clause of the 14th Amendment, an approach to applying Bill of Rights protections against the states first rejected in the 19th-century Slaughter-House Cases and never used since.

Cases United States vs. Miller (U.S. 1939) District of Columbia vs Heller (U.S. 2008) McDonald v Chicago (U.S. 2010)

Justice Antonin Scalia, for the majority in District of Columbia v Heller (U. S. Supreme Court 2008)

The Supreme Court votes 5 to 4 to strike down a Washington, D. C. ban on the private possession of handguns. Justice Scalia authors majority opinion.

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Second Amendment Basics | Law Center to Prevent Gun Violence

Posted: July 3, 2016 at 12:09 pm

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. The Second Amendment to the US Constitution

Does the Second Amendment prevent effective gun regulations? What is the right to bear arms? Second Amendment litigation has become a critical battleground since the U.S. Supreme Court held, in District of Columbia v. Heller, that the Amendment guarantees an individual right to possess a firearm in the home for self-defense. This decision created a radical shift in the meaning of the Second Amendment, but it doesnt prevent smart gun regulations. In fact, since Heller, courts nationwide have found a wide variety of firearms laws constitutional because they can help prevent gun deaths, injuries, and crimes in communities across the country.

The Law Center not only tracks the extensive Second Amendment litigation currently happening nationwide, but also analyzes the trends, to bring you the latest developments in the courts.

Learn more about the 2008 DC vs Heller decision.

Learn more about the 2010McDonald v. City of Chicago decision.

In 2008, the U.S. Supreme Court singlehandedly inserted the judicial system into the ongoing national debate over gun laws in America. In a 5-4 decision inDistrict of Columbia v. Heller, the Court invalidated the District of Columbias handgun ban and firearm storage law, stating for the first time that the Second Amendment protects a responsible, law-abiding citizens right to possess an operable handgun in the home for self-defense.

Heller was unquestionably a radical decision, overturning the Courts previous ruling that the Second Amendment was tied to state militia service. For almost seventy years, lower federal and state courts nationwide had relied on that pronouncement to reject hundreds of Second Amendment challenges.

The Heller decision immediately drew strong criticism from a wide array of legal scholars, historians, advocates and legislators, including a particularly scathing rebuke from respected conservative judge Richard Posner, who noted that, The only certain effect of the Heller decision will be to increase litigation over gun ownership.

In fact, new litigation started almost immediately. The day that Heller was announced, plaintiffs filed a lawsuit challenging the City of Chicagos handgun ban, with a second suit filed the next day. Other suits emerged soon after, escalating once the Supreme Court confirmed that the Second Amendment also applied to state and local laws in 2010s McDonald v. City of Chicago decision. After that case, the number of lawsuits challenging gun laws nationwide skyrocketed.

Thankfully, despite the explosion of litigation, courts across the country have rejected the overwhelming majority of Second Amendment challenges initiated since Heller. Gun rights advocates and criminal defendants across the country have sought to expand the Second Amendment to invalidate almost every gun law on the books today. In siding with us and the majority of Americans who support sensible gun laws, courts are finding that smart laws arent just constitutionaltheyre also critical to keeping our communities safe from gun violence.

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The Second Amendment, the Bill of Rights, and the …

Posted: June 25, 2016 at 10:53 am

In 1803 a distinguished Virginia jurist named St. George Tucker published the first extended analysis and commentary on the recently adopted U.S. Constitution. Though it is mostly forgotten today, Tucker’s View of the Constitution of the United States was a major work in its time. In the early decades of the nineteenth century, generations of lawyers and scholars would reach for Tucker’s View as a go-to constitutional law textbook.

I was reminded of Tucker’s dusty tome in recent days after reading one liberal pundit after another smugly assert that the original meaning of the Second Amendment has nothing whatsoever to do with individual rights. Slate’s Dahlia Lithwick, for example, denounced the individual rights interpretation of the Second Amendment as a “a hoax” peddled in recent years by the conniving National Rifle Association. Likewise, Rolling Stone’s Tim Dickinson complained that “the NRA’s politicking has warped the Constitution itself” by tricking the Supreme Court into “recast[ing] the Second Amendment as a guarantee of individual gun rights.”

Old St. George Tucker never encountered any “politicking” by the NRA. A veteran of the Revolutionary war and a one-time colleague of James Madison, Tucker watched in real time as Americans publicly debated whether or to ratify the Constitution, and then watched again as Americans debated whether or not to amend the Constitution by adopting the Bill of Rights. Afterwards Tucker sat down and wrote the country’s first major constitutional treatise. And as far Tucker was concerned, there was simply no doubt that the Second Amendment protected an individual right to arms. “This may be considered as the true palladium of liberty,” Tucker wrote of the Second Amendment. “The right of self-defense is the first law of nature.”

The individual rights interpretation of the Second Amendment was widely held during the founding era. How do we know this? Because the historical evidence overwhelmingly points in that direction. For example, consider the historical context in which the Second Amendment was first adopted.

When the Constitution was ratified in 1789 it lacked the Bill of Rights. Those first 10 amendments came along a few years later, added to the Constitution in response to objections made during ratification by the Anti-Federalists, who wanted to see some explicit protections added in order to safeguard key individual rights. As the pseudonymous Anti-Federalist pamphleteer “John DeWitt” put it, “the want of a Bill of Rights to accompany this proposed system, is a solid objection to it.”

Library of CongressJames Madison, the primary architect of the new Constitution, took seriously such Anti-Federalist objections. “The great mass of the people who opposed [the Constitution],” Madison told Congress in 1789, “dislike it because it did not contain effectual provision against encroachments on particular rights.” To remove such objections, Madison said, supporters of the Constitution should compromise and agree to include “such amendments in the constitution as will secure those rights, which [the Anti-Federalists] consider as not sufficiently guarded.” Madison then proposed the batch of amendments that would eventually become the Bill of Rights.

What “particular rights” did the Anti-Federalists consider to be “not sufficiently guarded” by the new Constitution? One right that the Anti-Federalists brought up again and again was the individual right to arms.

For example, Anti-Federalists at the New Hampshire ratification convention wanted it made clear that, “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.” Anti-Federalists at the Massachusetts ratification convention wanted the Constitution to “be never construed…to prevent the people of the United States, who are peaceable, from keeping their own arms.”

Meanwhile, in the Anti-Federalist stronghold of Pennsylvania, critics at that state’s ratification convention wanted the Constitution to declare, “that the people have a right to bear arms for the defense of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.”

One of the central purposes of the Second Amendment was to mollify such concerns by enshrining the individual right to arms squarely within the text of the Constitution. Just as the First Amendment was added to address fears of government censorship, the Second Amendment was added to address fears about government bans on private gun ownership.

Like it or not, the idea that the Second Amendment protects an individual right is as old as the Second Amendment itself.

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The Second Amendment Is About Revolution

Posted: at 10:53 am

Last week, Rolling Stone published an article by David S. Cohen, a law professor who thinks the Second Amendment should be repealed. The Second Amendment needs to be repealed because it is outdated, a threat to liberty and a suicide pact, writes Cohen. When the Second Amendment was adopted in 1791, there were no weapons remotely like the AR-15 assault rifle and many of the advances of modern weaponry were long from being invented or popularized.

In the wake of the Orlando massacre, Cohen reasons, now is the time to acknowledge a profound but obvious truththe Second Amendment is wrong for this country and needs to be jettisoned.

This isnt the first time liberals have mused out loud about whether the Second Amendment is really necessary, or whether it really means individuals have a right to own guns. But tragedies like Orlando seem to revive all the old arguments. Not that commentators are very knowledgeable about the weapons theyd like to ban. An AR-15, for example, cant fire 700 rounds per minute, nor can any guy whos taken a shop class modify a semi-automatic rifle into a fully automatic in five minutes, as Michael Moore seems to think.

But even if an AR-15 only fires once every time you squeeze the trigger, even if it cant be easily converted into an automatic, just taking the rifle for what it is, liberals want to know: who needs a gun like that? How many rounds do you need to be able to fire per minute to kill a deer, or ward off a burglar? Does anyone really need a 25-round magazine? Isnt the only reason for such firepower to make killing people as efficient as possible? Isnt this a weapon of war? Why would American civilians need to own weapons of war?

Turns out, thats precisely the right question to ask. The Second Amendment, after all, doesnt recognize our right to hunt deer or protect ourselves from criminals. Owning guns certainly makes doing those things easier, but its not why the Founders bothered to codify gun rights. They were getting at something elsethe right of revolution.

Simply put, the purpose of the Second Amendment is to give the people the means to overthrow the government in the event it becomes tyrannical.

Most gun control advocates scoff at this. Indeed, its an argument that even some conservatives are hesitant to make. How could the people, armed with rifles and pistols, overthrow the government? On its face, it seems absurd.

More on that in a minute. But first, consider that the Second Amendment is unique among the amendments enumerated in the Bill of Rights because it contains a kind of explanatory preamble: 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.

Edward J. Erler, a political science professor at California State University, San Bernardino, and an expert on the Second Amendment, has argued that the right of revolution is asserted in the Declaration of Independence, which states that governments derive their just powers from the consent of the governednot every power, only just powers, which the people delegate to a government that is by definition limited to the purposes for which it was established, the Safety and Happiness of the people. Furthermore, the Declaration states that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government. Erler says this is what has come to be known as the right of revolution,

an essential ingredient of the social compact and a right which is always reserved to the people. The people can never cede or delegate this ultimate expression of sovereign power. Thus, in a very important sense, the right of revolution (or even its threat) is the right that guarantees every other right. And if the people have this right as an indefeasible aspect of their sovereignty, then, by necessity, the people also have a right to the means to revolution. Only an armed people are a sovereign people, and only an armed people are a free peoplethe people are indeed a militia.

In recent years an argument has become popular on the American Left that the Second Amendment means only that a well regulated militia has the right to bear arms, not individuals. The idea is that, say, the State of Texas can form a militia and arm it accordingly, but individual Texans have no inherent right to the private ownership of firearms.

In 2008, the U.S. Supreme Court repudiated this idea in the case of District of Columbia v. Heller. The late Justice Antonin Scalia wrote the opinion for the majority and quoted Blackstones Commentaries on the Laws of England, which recognizes the natural right of resistance and self-preservation. Scalia insisted that the Second Amendment acknowledges rights that predate the Constitution, such as the right of revolution.

But Erler argues that Scalia was wrong to imply that Second Amendment rights were codified from the common lawthey were, in fact, natural rights, deriving their status from the Laws of Nature and of Natures God. Like the right to revolution, the right to self-defense or self-preservation can never be ceded to government.

So what does this mean in practice? Are we to conclude that the Founders imagined a day when civilians armed with AR-15s and Glocks might one day march on Washington DC if the government ever became tyrannical? If the Second Amendment guarantees our right to the means of revolution, does that mean civilians should also be allowed to own tanks and artillery?

Not quite. The Founders thought standing armies were a threat to liberty, which means they surely would have thought that standing private armies constituted the same threat. Self-preservation and self-defense might be natural right, but even in Heller the Supreme Court indicated that there could be reasonable limitations on gun ownership.

To answer the scoffers on the Left, though, imagine what an American revolutionthe exercise of first principlesmight look like in the twenty-firstcentury. The government, or a branch of it (most likely the executive) becomes destructive to the ends for which it was established. It tyrannizes the people, takes their property, deprives them of their rights, destroys their lives. A revolution, or an abolishment of that government, would likely not be a civilian undertaking but a military one. Working in conjunction with other branches of the federal government and perhaps some state governments, the military would effect a coup dtat.

It would likely be a kind of civil war, and civilians would likely be caught up in it at some point. Perhaps they would form local militias to defend their homes and businesses. Perhaps they would volunteer their services to military commanders or state police forces. Perhaps they would simply want to ensure the safety of their families.

To do any of that, they would need to be armed. Just as the Founders envisioned.

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Don’t Bank On The Supreme Court To Clarify The Second …

Posted: June 16, 2016 at 5:41 pm

If you think the Supreme Court is poised to expand or restrict gun rights sometime soon, don’t hold your breath.

As handwringing continues over what might have prevented the Orlando massacre– an old-time filibuster sparked by it even broke outin the Senate on Wednesday — the justices are about to consider a state gun control law enacted in the aftermath of the Sandy Hook school massacre in Newtown, Connecticut.

According to its docket, the court on Thursday will weigh whether to take up Shew v. Malloy, a case with all the elements that could make it emblematic for the battle over the Second Amendment’s meaning.

It’s a dispute between a host of gun rights groups, businesses and individual gun owners against Connecticut over the constitutionality of a sweeping regulatory regime that bans so-called “assault weapons” — semiautomatic firearms and large-capacity magazines of the very sort used in Newtown and Orlando.

Back in October, an appeals court in Manhattan said the Connecticut law and a similarly restrictive law in New Yorkwere constitutional –and the plaintiffs vowed to take the battle to the Supreme Court.

Tom King, the head of New York’s biggest gun rights group, even said he was “happy” to have lost the case because that meant his organization could now ask the highest court of the land to decide the issue once and for all.

Brendan McDermid / Reuters

But then Justice Antonin Scalia died. And suddenly,the gun lobby’s calculations changed — including King’s, who told the New York Daily News weeks after Scalia’s death that it was “just the wrong time” to continue the fight in the absence of a reliable conservative vote at the Supreme Court.

That might explain why Senate Majority Leader Mitch McConnell (R-Ky.) glowingly pointed to the National Rifle Association’s opposition to Merrick Garland, the president’s high court nominee, to rationalize his own refusal to hold a vote and a hearing for Garland.

None of this matters, and yet it matters a great deal.

Because despite the pleas from gun rights advocates who still want the Supreme Court to take up the challenge to the weapons ban, the justices could wield all kinds of reasons not to touch the case with a 10-foot pole.

It’s not that they aren’t interested in clarifying the scope of the Second Amendment in the wake of Scalia’s magnum opus in District of Columbia v. Heller, which for the first time recognized a fundamental right to gun ownership in the home. But to echo King, it’s just not the right time — not with a short-staffed Supreme Court, a volatile political environment, and a nomination fight that may very well continue after President Barack Obama’s successor takes office.

As things stand now, all signs point to an extremely quiet and uncontroversial Supreme Court term beginning next October — a dry season that will stand in stark contrast to the current term’s constitutional blockbusters on affirmative action, abortion and immigration, to name only a few.The court just isn’t taking many new cases.

This paucity of potential big decisions aside, the courthassent some signals that the Second Amendment is safe, even as it has rejected dozens of cases challenging gun control measures across the country, leaving lower courts as the final decision-makers.

Over the protest of Scalia and Justice Clarence Thomas, the Supreme Court refused in December to review an appeals court decision that effectively upheld an assault weapons ban in a small Illinois town. Thomas said that decision treated the Second Amendment as a second-class right.

But in March, a month after Scalia’s death, the justices tipped their hand the other way, ruling that a Massachusetts ban on stun guns may violate the right to bear arms, quietly but forcefully endorsing the late justice’s Heller decision.

The Second Amendment extends … to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” the court said in a very brief rulingthat no justice signed his or her name to.

But writing separately, Thomas and Justice Samuel Alito said they would have gone further, asserting that indeed, gun ownership for self-defense is a “fundamental right” while making clear that Americans’ safety shouldn’t be “left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.”

Fighting words, as well as fodder for debate about where the court may go next on guns.

It is precisely this seeming tension within the Supreme Court — plus the political fallout from Scalia’s vacancy and all the work that other courts are doing to make some sense of the Second Amendment — that indicates why the justices probably won’t pull the trigger on the next big gun rights case soon.

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Why It’s Time to Repeal the Second Amendment

Posted: June 14, 2016 at 4:40 pm

I teach the Constitution for a living. I revere the document when it is used to further social justice and make our country a more inclusive one. I admire the Founders for establishing a representative democracy that has survived for over two centuries.

But sometimes we just have to acknowledge that the Founders and the Constitution are wrong. This is one of those times. We need to say loud and clear: The Second Amendment must be repealed.

As much as we have a culture of reverence for the founding generation, it’s important to understand that they got it wrong and got it wrong often. Unfortunately, in many instances, they enshrined those faults in the Constitution. For instance, most people don’t know it now, but under the original document, Mitt Romney would be serving as President Obama’s vice president right now because he was the runner-up in the last presidential election. That part of the Constitution was fixed by the Twelfth Amendment, which set up the system we currently have of the president and vice president running for office together.

Much more profoundly, the Framers and the Constitution were wildly wrong on race. They enshrined slavery into the Constitution in multiple ways, including taking the extreme step of prohibiting the Constitution from being amended to stop the slave trade in the country’s first 20years. They also blatantly wrote racism into the Constitution by counting slaves as only 3/5 of a person for purposes of Congressional representation. It took a bloody civil war to fix these constitutional flaws (and then another 150 years, and counting, to try to fix the societal consequences of them).

There are others flaws that have been fixed (such as about voting and Presidential succession), and still other flaws that have not yet been fixed (such as about equal rights for women and land-based representation in the Senate), but the point is the same there is absolutely nothing permanently sacrosanct about the Founders and the Constitution. They were deeply flawed people, it was and is a flawed document, and when we think about how to make our country a more perfect union, we must operate with those principles in mind.

In the face of yet another mass shooting, now is the time to acknowledge a profound but obvious truth the Second Amendment is wrong for this country and needs to be jettisoned. We can do that through a Constitutional amendment. It’s been done before (when the Twenty-First Amendment repealed prohibition in the Eighteenth), and it must be done now.

The Second Amendment needs to be repealed because it is outdated, a threat to liberty and a suicide pact. When the Second Amendment was adopted in 1791, there were no weapons remotely like the AR-15assault rifle and many of the advances of modern weaponry were long from being invented or popularized.

Sure, the Founders knew that the world evolved and that technology changed, but the weapons of today that are easily accessible are vastly different than anything that existed in 1791. When the Second Amendment was written, the Founders didn’t have to weigh the risks of one man killing 49and injuring 53 all by himself. Now we do, and the risk-benefit analysis of 1791 is flatly irrelevant to the risk-benefit analysis of today.

Gun-rights advocates like to make this all about liberty, insisting that their freedom to bear arms is of utmost importance and that restricting their freedom would be a violation of basic rights.

But liberty is not a one way street. It also includes the liberty to enjoy a night out with friends, loving who you want to love, dancing how you want to dance, in a club that has historically provided a refuge from the hate and fear that surrounds you. It also includes the liberty to go to and send your kids to kindergarten and first grade so that they can begin to be infused with a love of learning. It includes the liberty to go to a movie, to your religious house of worship, to college, to work, to an abortion clinic, go to a hair salon, to a community center, to the supermarket, to go anywhere and feel that you are free to do to so without having to weigh the risk of being gunned downby someone wielding a weapon that can easily kill you and countless others.

The liberty of some to own guns cannot take precedence over the liberty of everyone to live their lives free from the risk of being easily murdered. It has for too long, and we must now say no more.

Finally, if we take the gun-rights lobby at their word, the Second Amendment is a suicide pact. As they say over and over, the only way to stop a bad guy with a gun is a good guy with a gun. In other words, please the gun manufacturers by arming even the vast majority of Americans who do not own a gun.

Just think of what would have happened in the Orlando night-club Saturday night if there had been many others armed. In a crowded, dark, loud dance club, after the shooter began firing, imagine if others took out their guns and started firing back. Yes, maybe they would have killed the shooter, but how would anyone else have known what exactly was going on? How would it not have devolved into mass confusion and fear followed by a large-scale shootout without anyone knowing who was the good guy with a gun, who was the bad guy with a gun, and who was just caught in the middle? The death toll could have been much higher if more people were armed.

The gun-rights lobby’s mantra that more people need guns will lead to an obvious result more people will be killed. We’d be walking down a road in which blood baths are a common occurrence, all because the Second Amendment allows them to be.

At this point, bickering about the niceties of textual interpretation, whether the history of the amendment supports this view or that, and how legislators can solve this problem within the confines of the constitution is useless drivel that will lead to more of the same. We need a mass movement of those who are fed up with the long-dead Founders’ view of the world ruling current day politics. A mass movement of those who will stand up and say that our founding document was wrong and needs to be changed. A mass movement of those who will thumb their nose at the NRA, an organization that is nothing more than the political wing of the country’s gun manufacturers, and say enough is enough.

The Second Amendment must be repealed, and it is the essence of American democracy to say so.

Watch four pro-gun arguments we’re sick of hearing.

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there is no Second Amendment protection for … – cnn.com

Posted: June 10, 2016 at 12:41 pm

The en banc opinion by the 9th U.S. Circuit Court of Appeals could set up a new showdown on gun rights at the Supreme Court.

At issue was California’s law on concealed weapons, which requires citizens to prove they have “good cause” to carry concealed firearms to get a license. Plaintiffs challenged guidelines in San Diego and Yolo counties that did not consider general self-defense to be enough to obtain a license.

“The historical materials bearing on the adoption of the Second and Fourteenth Amendments are remarkably consistent,” wrote Judge William Fletcher, going back to 16th century English law to find instances of restrictions on concealed weapons. “We therefore conclude that the Second Amendment right to keep and bear arms does not include, in any degree, the right of a member of the general public to carry concealed firearms in public.”

Fletcher also cited the most recent Supreme Court cases on gun rights, District of Columbia v. Heller and McDonald v. City of Chicago, which were major victories for gun rights activists, in making his case.

The Heller decision, authored by Justice Antonin Scalia, solidified a Second Amendment right of the public to keep guns, but it specifically noted the right was not absolute, and Fletcher pointed out that Scalia cited restrictions on concealed weapons as a historical example.

The court was careful to make the ruling narrow. The opinion does not say concealed weapons are unconstitutional, nor does it make any decisions about openly carrying weapons in public.

The case was a blow for gun rights advocates, and sets up the fight on gun rights for the Supreme Court to consider, says UCLA law professor and gun law expert Adam Winkler.

“This case raises the next great question for the Supreme Court: Does the Second Amendment guarantee a right to carry guns in public? And if so, what kind of licensing can states use to permit people to carry concealed weapons?” Winkler said.

The Supreme Court would not necessarily have to take up the case. The ruling does not create a substantive divide among different circuit courts in the U.S., one of the major factors the court considers in weighing which cases to take.

Four judges dissented from the ruling, with the main dissent by Judge Consuelo Callahan arguing that California’s laws taken together amount to a substantial restriction on citizens’ right to bear arms for self defense, as protected by the Second Amendment.

Whether the court does or does not take the case, the early 2016 death of Scalia looms large over it. Scalia authored Heller, the most substantial gun ruling in modern history of the court. And Republicans in the Senate have refused to consider President Barack Obama’s nominee for replacing Scalia on the court, meaning the eight justice panel can split 4-4.

Without a ninth justice, Winkler said, it’s unlikely the court would take up the case, even with Scalia’s allies on the issue Justices Samuel Alito and Clarence Thomas still on the court.

Obama’s nominee to replace Scalia, Judge Merrick Garland, was chosen in large part for his moderate record. But one of the most substantial conservative arguments against Garland has been that his record on guns is too liberal, though his written record on the issue is limited.

A partner for the law firm that helped argue on behalf of Peruta said that the plaintiffs were “disappointed” with the ruling but not surprised. He also said appealing to the Supreme Court is not a guarantee yet.

“An appeal to the Supreme Court is possible,” said Chuck Michel, senior partner at Michel and Associates. “But significantly, the Peruta decision specifically avoided answering the critical legal question of whether, if concealed carry is prohibited, some form of open carry of firearms must be allowed. California law bans open carry, so the constitutionality of that ban will now have to be tested.”

The case was primarily argued by Paul Clement, a former solicitor general under the George W. Bush administration and one of the top litigators for conservative causes at the Supreme Court in recent years.

Ever since the Supreme Court decided the Heller decision and a follow up case two years later, the Supreme Court has declined to take another major second amendment case, a frustration Clement cited in a 2013 filing with the court.

In the years since Heller had been decided many expected a “major consideration” or extant firearms laws, Clement wrote. “Instead, jurisdictions have engaged in massive resistance to the clear import of those landmark decisions, and the lower federal courts, long out of the habit of taking the Second Amendment seriously, have largely facilitated that resistance.”

California state Attorney General Kamala Harris said the decision “is a victory for public safety and sensible gun safety laws. The ruling ensures that local law enforcement leaders have the tools they need to protect public safety by determining who can carry loaded, concealed weapons in our communities.”

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Hillary Clinton wavers on Second Amendment right to bear arms …

Posted: June 7, 2016 at 7:42 pm

Hillary Clinton declined to say Sunday whether she believes in a constitutional right to bear arms, possibly opening the door to a fresh round of attacks from Donald Trump, who has already accused the likely Democratic presidential nominee of wanting to “abolish” the Second Amendment.

In an interview on ABC’s “This Week,” Clinton deflected twice when she was asked whether she agrees with the Supreme Court’s interpretation of the Second Amendment. The court ruled in 2008 that the Constitution affords private citizens the right to keep firearms in their homes and that such possession need not be connected to military service.

The wording of the Second Amendment has long made the extent of gun-ownership rights a point of contention.

“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.”

Questioned by George Stephanopoulos about her view of the amendment, Clinton talked about a “nuanced reading” and emphasized her belief in the rights of local, state and federal governments to regulate gun ownership. Stephanopoulos, formerly a top aide to President Bill Clinton, wasn’t satisfied by the response.

“That’s not what I asked,” he replied.

Clinton then discussed the right to own a gun as a hypothetical. “If it is a constitutional right,” she began her next answer, “then it like every other constitutional right is subject to reasonable regulations.”

Here’s the full exchange:

STEPHANOPOULOS: Let’s talk about the Second Amendment. As you know, Donald Trump has also been out on the stump talking about the Second Amendment and saying you want to abolish the Second Amendment. I know you reject that. But I want to ask you a specific question: Do you believe that an individual’s right to bear arms is a constitutional right that it’s not linked to service in a militia?

CLINTON: I think that for most of our history there was a nuanced reading of the Second Amendment until the decision by the late Justice [Antonin] Scalia. And there was no argument until then that localities and states and the federal government had a right as we do with every amendment to impose reasonable regulations. So I believe we can have common-sense gun-safety measures consistent with the Second Amendment. And, in fact, what I have proposed is supported by 90 percent of the American people and more than 75 percent of responsible gun owners. So that is exactly what I think is constitutionally permissible and, once again, you have Donald Trump just making outright fabrications, accusing me of something that is absolutely untrue. But I’m going to continue to speak out for comprehensive background checks; closing the gun-show loophole; closing the online loophole; closing the so-called Charleston loophole;reversing the bill that Senator[Bernie] Sanders voted for and I voted against, giving immunity from liability to gun makers and sellers. I think all of that can and should be done, and it is, in my view, consistent with the Constitution.

STEPHANOPOULOS: And, and the Heller decision also says there can be some restrictions. But that’s not what I asked. I said, “Do you believe their conclusion that the right to bear arms is a constitutional right?”

CLINTON: If it is a constitutional right, then it like every other constitutional right is subject to reasonable regulations. And what people have done with that decision is to take it as far as they possibly can and reject what has been our history from the very beginning of the republic, where some of the earliest laws that were passed were about firearms. So I think it’s important to recognize that reasonable people can say, as I do, responsible gun owners have a right. I have no objection to that. But the rest of the American public has a right to require certain kinds of regulatory, responsible actions to protect everyone else.

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