Organization: Arizona State University
Date: Wednesday, 8 Apr 1992 23:52:40 MST
From: <ICDLJ@ASUACAD.BITNET>
Newsgroups: talk.politics.guns
Subject: Re: Constitutional Gun Banning
Distribution: usa

The following summary referring to "We The People", was authored
by Mark Moritz, for the GUN DEVILS Shooting Club at Arizona State
University, c/o Student Life -0512, ASU, Tempe, AZ  85287-0512.

Re:  Supreme Court interpretations of the Second Amendment.

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  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.

Also instructive is 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.

This hardly supports the premise that an individual right is
"universally unaccepted."

Anti-gunners frequently use the "big lie" technique, 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.

There are no other Supreme Court cases in the 20th Century, but
there are dozens of state cases that support the individual right
to bear weapons (not "sporting goods").  See, for example,
State v. Swanton, 129 Ariz. 131 (Ct. App. 1981) ("[T]he term 'arms'
as used means such arms as are recognized in civilized warfare. .
 . ")

State v. Kessler, 289 Or. 359 (1980) ("[T]he terms 'arms' most
likely would include only the modern day equivalents of the weapons
used by colonial militiamen.")

also

State ex rel. City of Princeton v. Buckner, 377 S.E. 2d 139 (W.Va.
1988)
Barnett v. State, 72 Or. App. 585 (1985)
State v. Delgado, 298 Or. 395 (1984)
City of Lakewood v. Pillow, 180 Colo. 20 (1972)
City of Las Vegas v. Moberg, 82 N.M. 626 (Ct. App. 1971)

and dozens more.

There were few, if any, gun control laws on the books until after
the Civil War.  Then, suddenly, every Southern state had a law
prohibiting newly-freed slaves from owning guns.  (Guess why?  It
was getting damned dangerous for the Klansmen to lynch blacks.)
The Fourteenth Amendment rendered those "Black Codes"
unconstitutional, so the Southerners figured out some backdoor
methods.  One was banning cheap guns (the term Saturday Night
Special has its origin in the racial slur "Niggertown Saturday
Night," which was similar to "Father's Day in Harlem" or "Chinese
Fire Drill.")  Another was a permit system/waiting period/
background check, requiring approval of the sheriff, who usually
just happened to be a Klansman.

United States v. Cruikshank, 92 U.S. 542 (1876).  In Louisiana, a
hundred or so good old boys got word that there were some "uppity
niggers" having an organizational meeting, to try to protect
themselves against constant attacks by white gangs.  The good old
boys got together and crashed the party.  They took away the
Negroes' guns, and then proceeded to murder them.  They were
charged with conspiring to deprive their victims of their
constitutional rights to assemble, and to bear arms.

The court ruled that (1) the First and Second Amendments did not
apply to the states, (2) the Fourteenth Amendment only prohibited
the State from depriving the people of their rights, and the good
old boys were not agents of the State, and (3) the controlling
Enforcement Acts protected only those rights "granted by the
Constitution."  The court said that the rights to assemble and to
bear arms were fundamental rights.  They were not "granted" by the
Constitution, but were inalienable; they were rights with which the
victims were "endowed by their Creator."  Therefore, the rights
were not protected by the Enforcement Acts, and the KKK boys
literally got away with murder!  (This is a case proudly cited by
people who call themselves "liberals," instead of the racist scum
that they really are.)

Presser v. Illinois, 116 U.S. 252 (1886).  Presser had organized
a society of German immigrants (Lehr und Wehr Verein) who believed
that regular military drill was an important part of good
citizenship.  Four hundred of them paraded through downtown
Chicago, carrying rifles.  Presser was charged with parading
without a license, and organizing and maintaining a private army.
He claimed that the Illinois statutes violated his rights under
the First Amendment (freedom of assembly) and the Second Amendment
(right to bear arms).  The court ruled that the Bill of Rights
applied only to the federal government, not to the States, and that
any State could prohibit free speech, free exercise of religion,
assembly, bearing of arms, etc.

In Presser, the Court never mentioned the individual right to bear
arms; the case dealt only with an armed organization.

Miller v. Texas, 153 U.S. 535 (1894).  Texas had a law forbidding
the carrying of weapons, and authorizing arrest without warrant
for any violation.  Miller claimed this violated the Second
Amendment and the Fourth Amendment.  The Court again ruled that
"the restrictions of this amendments operate only upon the Federal
power."  But they admitted that it was possible that the Fourteenth
Amendment might cause the Bill of Rights to apply to the States as
well.  However, Miller did not raise his objection early enough.
"If the Fourteenth Amendment limited the power of the States as to
such rights . . . we think it was fatal to this claim that it was
not set up in the trial court."  Id. at 538.

Subsequent to Cruikshank, Presser, and Miller v. Texas, the Court
ruled that the Fourteenth Amendment does in fact cause the Bill of
Rights to apply to the States.  In effect, those three cases have
been invalidated.  To believe otherwise is to believe that the
States can restrict religion, speech, and assembly, to execute
unreasonable searches and seizures, to deny jury trials, or to
infringe the right to bear arms.

An important note:  the Court never doubted for an instant that
the right to bear arms was not an individual right which the
Federal government could not infringe.  These cases never talked
about the Second Amendment being a right of States to organize
militias.  It has always been assumed that the right to bear arms
is a right of individual citizens to bear arms.

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.

What the Second Amendment protects is an individual right to bear
military weapons, not for hunting, not for target shooting, not
for repelling foreign invaders, but for the purpose of preventing
oppression of the people by their own government.  The historical,
textual, structural, doctrinal, prudential, judicial, and
legislative evidence is devastating.  The claim that this is
"universally unaccepted" is as ludicrous as Saddam Hussein's claim
of victory over the Great Satan.

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.

Sources of information on the Second Amendment:


U.S. SUPREME COURT

U.S. v. Verdugo-Urquidez, 110 S.Ct. 1839 (1990).

U.S. v. Miller, 307 U.S. 174 (1939).

U.S. v. Cruikshank, 92 U.S. 542 (1876).

Presser v. Illinois, 116 U.S. 252 (1886).

Miller v. Texas, 153 U.S. 535 (1894).

Dred Scott v. Sandford, 60 U.S. 393 (1856).


LAW JOURNAL ARTICLES

Bordenet, The Right to Possess Arms:  The Intent of the Framers
of the Second Amendment, 21 Univ. W. Los Angeles L. Rev. 1
(1990).

Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637
(1989).

Hardy, The Second Amendment and the Historiaography of the Bill
of Rights, 4 jour. of Law & Politics 1 (1987).

Halbrook, What the Framers Intended:  A Linguistic Analysis of
the Right to "Bear Arms", 49 Law & Contemp. Problems 151 (1986).

Dowlut, The Current Relevancy of Keeping and Bearing Arms, 15
Univ. Balt. L. Forum 32 (1984).

Kates, Handgun Prohibition and the Original Meaning of the Second
Amendment, 82 Mich. L. Rev. 204 (1983).

Caplan, The Right of the Individual to Bear Arms:  A Recent
Judicial Trend, 1982 Detroit Col. L. Rev. 789 (1982).


BOOKS

Hardy, Origins and Development of the Second Amendment, (1986).

S. Halbrook, That Every Man Be Armed:  The Evolution of a
Constitutional Right (1984).

ed. Kates, Restricting Handguns:  The Liberal Skeptics Speak Out
(1979).


OTHER

The Right to Keep and Bear Arms, Report of Subcom. on the
Constitution of the Senate Judiciary Comm. 97th Cong. 2d Sess.
(Feb. 1982).