Newsgroups: talk.politics.guns From: [ACUS 10] at [WACCVM.SPS.MOT.COM] (Mark Fuller) Subject: [Magazine Article] Firearms Facts Date: Thu, 2 Dec 1993 20:34:12 GMT Firearms Facts Legal Precedents That Support the Right to Own and Bear Arms After reading for ourselves the cases that are being cited by many as authority that the Second Amendment is not applicable to the States, and that the plain lanugage in the Constitution doesn't mean what it says, we fail to see how anyone can say there is no "Right to Bear Arms." by Hale R. Stancil, Judge, Marion County, Florida. [as printed in U.S. Gun October/93] After reading several comments recently on the "Right to Bear Arms," I decided to read for myself the cases being cited by many as authority that the Second Amendment is not applicable to the States, and that the plain language in the Constitution doesn't mean what it says. The cases I read were: Miller vs. U.S., 307 U.S. 171, 59 S.Ct. 816 (1939), Quilici vs. Village of Morton Grove, 695 F.2d 261, (1982), U.S. vs. Cruikshank, 92 U.S. 542, (1876), Presser vs. Illinois, 116 U.S. 252, 6 S.Ct. 580 (1886) and Miller vs. Texas, 153 U.S. 535 (1894), and after reading these cases, I fail to see how anyone can say there is no "Right to Bear Arms." In Miller, supra, the gun in question was a Stevens 12-gauge double barrel shotgun with a barrel less than 18 inches in length. The district court in holding the 1934 N.F.A. violated the Second Amendment quashed the indictment and the government appealed. The defendants Jack Miller and Frank Layton made no appearance before the Supreme Court. In other words, no brief in support of the district court's decision was filed. Thus the Supreme Court heard only the position of the government. Even in spite of this fact, Justice McReynolds wrote, "In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than 18 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 the judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." Let us not forget that the weapon in question was a double barrel shotgun with a barrel length less than 18 inches. Justice McReynolds went on to say, "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." I read Miller, supra, as in support of the "Right to Bear Arms." In Miller vs. Texas, supra, Justice Brown wrote that "... it is well settled that the restrictions on these Amendments (both the Second and Fourth Amendments) operate only upon the Federal power, and have no reference whatever to proceedings in state courts," citing Cruikshank, Supra. Certainly Miller vs. Texas, supra, has been overruled by numerous subsequent decisions and should not be cited as denying the "Right to Bear Arms." In Presser, supra, the defendant Herman Presser with a cavalry sword marched at the head of a company of about 400 that "was not a part of the regular or organized militia of the state, nor a part of troops of the United States, and had no organization under the militia law of the United States" without a license, and was convicted of violation of the Illinois Military Code. "The question is, therefore," Justice Woods wrote, "Had he a right, as a citizen of the United States, in disobedience of the state law, to associate with others as a military company, and to drill and parade with arms in the towns and cities of the state?" In the decision of the United States Supreme Court, Justice Wood wrote, "We think it clear that the sections under consideration which only forbid bodies of men to associate together as military organization, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms." Justice Woods went on to say in Presser, supra, "It is undoubtedly true that all citizens capable of bearing arms constitute the reserve military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, that states cannot, even laying the Constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government." It should be noted that in Cruikshank, supra, the Chief Justice wrote that the right of the people to keep and bear arms "is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed, ... it shall not be infringed by Congress." What does the sentence, "NEITHER IS IT IN ANY MANNER DEPENDENT UPON THAT INSTRUMENT FOR ITS EXISTENCE" mean? Doesn't this mean that the "Right to Bear Arms" is a natural right, an inalienable right, a fundamental right? The "Right to Bear Arms" was not conferred by the Second Amendment, because this right in fact existed before the Constitution, even before the founding of the colonies. It has existed since man picked up the first stone in defense of his person or property. The Quilici decision is a rather amusing decision if one stops to take the necessary time not only to read, but to digest the opinion. While upholding the city of Morton Grove's right to ban a particular type of firearm, i.e. handguns, Justice Bauer, writing for the majority, wrote: "Because we have concluded that the Illinois Constitution permits a ban on certain categories of arms, home rule units such as Morton Grove MAY PROPERLY ENACT DIFFERENT, EVEN INCONSISTENT, ARMS RESTRICTIONS." Later in the decision Justice Bauer concluded "... but we reiterate that section 22 (State of Illinois Constitution) simply prohibits an absolute ban on all firearms. Since Ordnance No. 81-11 does not prohibit all firearms, it does not prohibit a Constitutionally protected right." There you have it. Under this reasoning one city might outlaw handguns, another rifles of a certain caliber, another all rifles and handguns, another all shotguns except single barrels, another all arms except air rifles, the options are almost endless. In the well reasoned dissenting opinion Justice Coffey wrote, "Surely nothing could be more fundamental to the concept of ordered liberty than the basic right of an individual, within the confines of the criminal law, to protect his home and family from unlawful and dangerous intrusions." I agree with Justice Coffey, "The Morton Grove Ordinance, by prohibiting the possession of handguns within the confines of the home, violates both the fundamental right to privacy and the fundamental right to defend the home against unlawful intrusion within the parameters of the criminal law." For those citizens who are weak, ill or elderly, the only defense against the stronger, swifter criminal is with a gun. Few citizens have the physical means to protect themselves against the criminals they face, especially when the criminal gets to choose or pick the time, the place, the weapon and the victim. Today when many of our time honored traditions are being attacked time and time again, we need to look again at our Constitution and its Preamble. Those who contend that the Second Amendment to the Constitution which reads: 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, has no purpose today have not kept up with the times. Those who contend the "Right to Bear Arms" should apply only to those firearms in existence when the Constitution was adopted should likewise take a closer look at what they are saying. If the Second Amendment applies only to flintlocks and other similar muzzle loading firearms, then under the First Amendment, freedom of the press should be held to apply only to hand operated printing presses and persons standing on the street corner spewing forth their thoughts. Certainly those that wish to so narrowly construe the Second Amendment should likewise be willing to construe the First Amendment as not applying to television, telegraph, telephone, microphone amplification, FAX machines, electronic mail, radio, along with magazines, newspapers and advertisements printed with the use of automation and computers. The Founding Fathers never contemplated the mass media of the nation being owned and controlled by a few giant multi-billion dollar corporations wherein the content of what was or was not to be published and/or disseminated was under the control of so few with so much power over so many. I would submit that the Second Amendment is more than a Constitutional Right. The Second Amendment recognizes the right to bear arms. It does not convey or give the right to bear arms to any citizen. The magic wording one will note is, the right to bear arms shall not be infringed. Thus the Founding Fathers must certainly have already recognized the right to bear arms, for the Amendment to have been worded as it is. One will note that the other Amendments grant rights. For example: freedom of religion; freedom of the press; right to counsel; right against unreasonable searches and seizures; right to trial by jury; and others. With regards to one's particular state, their Constitution may or may not recognize this natural right to bear arms. Patrick Henry said, "Guard with jealous attention the public Liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force you are ruined." "I speak for the adoption of the Second Amendment," Patrick Henry said. "The great object is, that every man be armed ...Everyone who is able may have a gun." The "Right to Bear Arms" is not a Constitutional right in so far as the United States Constitution is concerned. It is a fundamental right, an inalienable right, and yes, I do have the "Right to Bear Arms." The question that needs to be asked today is: "Are we a government of law where the Constitution is supreme, or a government of men with a Constitution made out of rubber?"