Category Archives: Second Amendment

Eugene Volokh is tackling a less common Second Amendment argument this week. It stems from a recent decision made by the New Jersey state supreme court involving a resident who was convicted of Unlawful Possession of a Weapon. The crime in question was the fact that there was a dispute going on with a neighbor in his apartment complex and when he came pounding on the door, the defendant answered the door with a machete in his hand. He may or may not have pointed it at the unruly neighbor (stories conflict on that point) but he definitely didnt injure or even attack the person. The state supreme court overturned the conviction and sent the case back for a new trial with different instructions from the judge because the defendants rights had been violated.

This leads Volokh to answer another question which he apparently gets fairly often from people who dont follow the subject closely. Are swords, knifes, machetes and other blade weapons covered by the Second Amendment? We spend so much of our time talking about guns that this area of hardware doesnt come up very often. His conclusions: (The Volokh Conspiracy, Washington Post)

This should be obvious, I think: The Second Amendment protects arms, and the D.C. v. Heller opinion discusses bows and knives as examples of such arms; opinions in the 1800s and 1900s dealing with state constitutional rights to bear arms also mention bladed weapons; and post-Heller opinions, such as from courts in Connecticut, Michigan, and Wisconsin agree. But some have disagreed the Massachusetts government in the Caetano stun gun case before the Massachusetts high court, for instance, argued that Heller was limited to firearms. The New Jersey decision should be a helpful precedent, then, for other non-gun cases (though of course it doesnt dispose of the question of exactly what weapons are protected, and where they can be possessed).

The Constitution Society has a handy document you might want to bookmark which covers this, as well as many other questions on related topics. In it, they go into a bit more detail about precisely what the Founders intended and what classes of weapons should be covered. (Emphasis added)

The U.S. Constitution does not adequately define arms. When it was adopted, arms included muzzle-loaded muskets and pistols, swords, knives, bows with arrows, and spears. However, a common- law definition would be light infantry weapons which can be carried and used, together with ammunition, by a single militiaman, functionally equivalent to those commonly used by infantrymen in land warfare. That certainly includes modern rifles and handguns, full-auto machine guns and shotguns, grenade and grenade launchers, flares, smoke, tear gas, incendiary rounds, and anti-tank weapons, but not heavy artillery, rockets, or bombs, or lethal chemical, biological or nuclear weapons. Somewhere in between we need to draw the line.

Personally, they go a bit further over the gray line that must be drawn between personal weaponry and group combat weapons for my taste (grenade launchers and anti-tank missiles seem a bit heavy handed) but thats mostly about right I think. Keep in mind that not everyone could afford a firearm at the time of the nations founding and many may have been making do with a bow, a knife or even a farm implement. Im not sure how common swords were for the layman at the time (good ones were also historically quite expensive) but that would have to fall into the same class.

Its also commonly noted in literature of the time that people signing up for militia duty would need to be provided with a rifle if they couldnt afford their own. This, by the way, is where we get the term well regulated because regulated in that context meant properly supplied. But in any event, Volokh has some good information in both of the articles linked above which I thought you might find useful. And since weve recently seen them used by terrorists, might the Second Amendment also cover hammers if you were holding one when you answered the door? Since you can clearly kill someone with a well placed hammer blow Id have to say yes. Same for baseball bats.

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Does the Second Amendment cover edged weapons? - Hot Air

The New Jersey machete decision is important because it rejects a spontaneity requirement for arming yourself at home (the states theory that you could pick up a weapon against an imminent attack, but you cant come to the door with the weapon just in case). But its also important because it reaffirms that the Second Amendment protects not just guns but other weapons as well.

This should be obvious, I think: The Second Amendment protects arms, and the D.C. v. Heller opinion discusses bows and knives as examples of such arms; opinions in the 1800s and 1900s dealing with state constitutional rights to bear arms also mention bladed weapons; and post-Heller opinions, such as from courts in Connecticut, Michigan, and Wisconsin agree. But some have disagreed the Massachusetts government in the Caetano stun gun case before the Massachusetts high court, for instance, argued that Heller was limited to firearms. The New Jersey decision should be a helpful precedent, then, for other non-gun cases (though of course it doesnt dispose of the question of exactly what weapons are protected, and where they can be possessed).

Read the original:
The Second Amendment protects some bladed weapons, and not just firearms - Washington Post

After her car broke down out of Lewiston, Idaho, a young woman accepted a ride from a man who was driving a marked company van. Later, a fisherman snagged one of her body parts out of the Snake River. She didnt have a concealed pistol permit.

An older lady, again in Lewiston, was brutally murdered, by a sex offender, while taking an evening walk in the park. She didnt have a concealed pistol permit.

While living in the Spokane region, I read about a woman who was stabbed to death while walking on one of the paved trails in the city. She didnt have a concealed pistol permit.

Another woman was kidnapped by two men and thrown, purse and all, into a cars trunk. While in the trunk, the woman retrieved her Smith & Wesson Snub Nose .38 revolver from her purse. When the trunk was opened, the woman shot both of her assailants. She had a concealed pistol permit.

Our graveyards are full of people who died needlessly because they had no way to defend themselves. The latest incident occurred in Portland where two citizens, trying to prevent a hate crime, were stabbed to death by a violent ex-convict who had repeatedly been released from prison after committing serious crimes.

Its ironic that our soft-on-crime liberals/progressives continually release vicious criminals to prey on us, and then suggest that the solution for crime is to take legally owned firearms away from the law-abiding. Thats typical liberal lunacy.

Now that the Republican Party, the party of liberty, is back in control well have at least a four-year respite from the Democratic Partys war on our rights to keep and bear arms. I note, too, that the subversive anti-gun lobby and its network of useful idiots, from Walla Walla to New York, have been deafeningly silent since the election.

Again, we were given the Second Amendment so that we could defend ourselves and our nation.

Now that were finally free, lets take advantage of our Second Amendment rights, which includes the right for law-abiding people to carry concealed arms for self-defense against the monsters.

Here is the original post:
Use Second Amendment rights and arm yourself - Walla Walla Union-Bulletin

A year ago, Democratic members of the U.S. House of Representatives staged a sit-in demanding a vote on federal gun-safety bills following the shootings at the Pulse nightclub in Orlando. The National Rifle Associations lobbying was largely blamed for no vote happening. But looking deeper, the Second Amendment with the unique American individualism wrapped around it underlies all. It is Americas fundamental gun problem.

As Michael Waldman at the Brennan Center for Justice suggests in Politico Magazine (2014), the NRAs construing of the Second Amendment as an unconditional right to own and carry guns (a right beyond actual constitutional law in Supreme Court rulings) is why it thrives and has clout.

Without clout derived from Second Amendment hyperbole, we might not have, for instance, stand your ground laws in more than 20 states starting with Florida in 2005, laws that professors Cheng Cheng and Mark Hoekstra report in the Journal of Human Resources (2013) do not deter crime and are associated with more killing.

Pockets of America were waiting for the NRAs Second Amendment fertilizer.

For many gun advocates, the gun is an important aspect of ones identity and self-worth, a symbol of power and prowess in their cultural groups. Dan Kahan at Yale University with co-investigators studied gun-safety perceptions and wrote in the Journal of Empirical Legal Studies (2007) how those most likely to see guns as safest of all were the persons who need guns the most in order to occupy social roles and display individual virtues within their cultural communities.

Or, as the essayist Alec Wilkinson writes more starkly on The New Yorkers website (2012), although the [gun] issue is treated as a right and a matter of democracy underlying all is that a gun is the most powerful device there is to accessorize the ego.

A gun owner carrying his semiautomatic long rifle into a family department store, like Target, in a state permitting such if asked why will likely say because it is his right. He is unlikely to reveal the self-gratification gained from demonstrating the prowess and power of his identity, gained from using the gun to accessorize the ego. The Second Amendment here is convenient clothing to cover deeper unspoken needs, needs that go beyond the understandable pleasures and functions of typical hunting, for instance.

Australia is often mentioned as an example of nationwide gun-safety legislation reducing gun violence. Following the 1996 massacre of 35 people in Port Arthur, Australia, the government swiftly passed substantial gun-safety legislation. And as Professors Simon Chapman, Philip Alpers and Michael Jones wrote in JAMAs June 2016 issue, [F]rom 1979-1996 (before gun law reforms), 13 fatal mass shootings occurred in Australia, whereas from 1997 through May 2016 (after gun-law reforms), no fatal mass shootings occurred.

But Australia also has nothing akin to the Second Amendment.

Anthropologist Abigail Kohn studied gun owners in the U.S. and Australia who were engaged in sport shooting. She describes in the Journal of Firearms and Public Policy (2004) how it is immediately apparent when speaking to American shooters that they find it impossible to separate their gun ownership, even their interest in sport shooting, from a particular moral discourse around self, home, family, and national identity.

And thus, American shooters are hostile to gun control because just as guns represent freedom, independence the best of American core values gun control represents trampling on those core values.

In contrast, the Australians view guns as inseparable from shooting sports. And perhaps most importantly, Australian shooters believe that attending to gun laws, respecting the concept of gun laws, is a crucial part of being a good shooter; this is the essence of civic duty that Australian shooters conflate with being a good Australian. While the Australian shooters thought some gun-safety policies were useless and stupid, they thought that overall gun-safety measures were a legitimate means by which the government can control the potential violence that guns can do.

Unlike Australia (itself an individualist-oriented country), America has the Second Amendment. And that amendment has fostered a unique individualism around the gun, an individualism perpetrating more harm than safety.

Maybe someday the Second Amendment will no longer reign as a prop serving other purposes and, thus, substantive federal gun-safety legislation happens. But as Professor Charles Collier wrote in Dissent Magazine: Unlimited gun violence is, for the foreseeable future, our [Americas] fate and our doom (and, in a sense, our punishment for [Second Amendment] rights-based hubris).

The Second Amendment, today, is a song of many distorted verses. A song of a uniquely American tragedy.

Fred Decker is a sociologist in Bowie, Md., with a background in health and social policy research. He earned his doctorate from Florida State University.

The rest is here:
Second Amendment: An American tragedy - Orlando Sentinel

ANALYSIS/OPINION:

Yes indeed, the Second Amendment does save.

The latest instance of a gun saving a potential victim from a would-be crime comes by way of Oklahoma, where a Poteau resident, acting quickly, shot and killed a neighbor who was trying to drown his own twin, 3-month-old babies in a bathtub.

KFOR-TV reported Leland Foster, 27, was killed by his neighbor, Cash Freeman. The details?

City of Ada spokeswoman Lisa Bratcher told reporters that [Foster] died from gunshot wound after a 12-year-old girl ran from the home and alerted a neighbor for help, Fox News reported. Bratcher said the neighbor, identified as Cash Freeman, told police he went to the home armed with a handgun and shot Foster twice after seeing him holding the infants under water in a bathtub while threatening the childrens mother with a knife.

Sick.

Whats more, Foster, it was later learned, had been arrested in 2011 for domestic abuse by strangulation and arson.

Good thing Freeman had a gun. The babies were taken to the hospital and reported in stable condition.

He saved their lives by shooting Foster.

But now? Now Freemans worried he may face charges.

The district attorneys office is apparently deciding the matter now. But lets be real here: Only in the lefts mind would Freeman be considered criminal.

To everyone else to all the sane-thinking of the country?

Freemans a hero. A fast-acting, quick-thinking, cape-wearing hero. He couldve simply dialed 9-1-1 and waited probably too late for the police to arrive. He couldve dismissed the 12-year-old as delusional. He couldve done nothing stayed in his home, refused to answer the door, turned up the television to drown out the knocking.

Instead, he grabbed his gun and raced to the rescue. And because of that decision because of the fact, too, America has a Second Amendment that allows for private citizens to own weapons for this very purpose of self-defense and saving two little 3-month-old babies are still alive and well.

Let the lefties lurking in the political background, looking for reasons to strip innocent Americans of their firearms and occasions to blot the Second Amendment from the Constitution, chew on that for a while.

The rest is here:
2nd Amendment saves, as Oklahoman shoots babies' would-be killer - Washington Times

Rex Alphin is pro-life, pro Second Amendment, his NRA rating is better than his opponents, and he appreciates the agricultural lifestyle the 64th District is known for and thats why Im voting for him. Rex believes in his community so much that he has owned and operated three businesses in his district, his opponents business is not in the 64th.

His opponent said she has never raised taxes, how could she? Shes never held any elected position to be faced with that hard reality. Tax hikes have been a major thorn, have we forgotten why taxes had to be raised? The board of supervisors, of which Rex is serving, unanimously voted to raise taxes because of the irresponsible misuse of taxpayer funds that the previous board used to saddle Isle of Wight with huge amounts of unnecessary debt. His opponent signed a Taxpayer Protection Pledge stating she wont raise taxes - maybe thats unrealistic. I dont want another broken promise, I want pro-active leadership. When you make tall promises, you always fall short. Rex is realistic and words mean something to him, he knows you dont have to be the loudest voice in the room to be effective.

As for fundraising, I would rather have a candidate whos raised more money from his district than someone whos raised their majority outside the 64th, check out cfreports.sbe.virginia.gov. Candidates need to be accountable to their constituents, not outside political forces. And what a shame political forces within local GOP groups think you are so ignorant that they banded together to tell everyone to vote for Rexs opponent. Thats what the establishment and Democrats do.

Lastly, things have been said about all the nice letters for Rex. Honor, integrity, faith, commitment, and passion for family and community mean a great deal to Rex and it means something to me. Rex isnt perfect, but hes not a flash in the pan.

Jennifer Boykin, Carrsville, Virginia

Read the rest here:
Rex Alphin supports the Second Amendment - Progress Index

By Roger J. Katz, Attorney at Law and Stephen L. D'Andrilli KOLBE VS. HOGAN: PART EIGHT

New York, NY -(Ammoland.com)- Those lower federal district courts and higher federal circuit courts of appeal that seek to disarm Americans, do so in clear denigration of the core of the second amendment and in clear defiance of the U.S. Supreme Court decision and reasoning in Heller.

When deconstructing the history of Kolbe, (Kolbe vs. OMalley, 42. F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160(4th Cir. 2016); revd en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)), legal commentators and laymen generally ignore the issue whether the prefatory militia clause still constrains the right of the people to keep and bear arms. They do so for an obvious reason. After all, the U.S. Supreme Court held, in District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), that the Second Amendment protects an individual right to possess a firearm unconnected with an individuals service in a militia. Thus, one might reasonably assume that a sacred shibboleth of the antigun movement and of the antigun movements benefactors in Congress, in the media, in finance, and in several ofthe Courts, may finally be laid to rest.

Yet, that isnt true at all.

Those opposed to Heller'srulingsmaintain the case was wrongly decided and must, at some point, be overturned. Those jurists who share the antigun establishment's sympathies thereupon render rulings as if Heller never existed. The influence of old dogma sets in and pervades judicial opinions. One, though,should not be surprised about this.After all, the Heller case was decided narrowly, sharply demarcated along liberal wing/conservative wing lines.

Those Justices opposed to the Heller rulings made clear their disagreement of and, indeed, their disdain for the methodology employed by,the positions embraced by,and the legal and logical conclusions deducedfrom the premises accepted by the Court's majority in reaching their conclusions.For, theHeller Court majority accepted,as axiomatic,and, in the first instance, that the right of the people tokeep and bear arms is a natural right,preexistent in man and not a privilege bestowed on man by the State, through Government. It is Government that is an artificial construct, not the rights and liberties, codified in the Bill of Rights. Thissacred principal, that the right of the people to keep and bear arms isa natural right, preexistent in man,is consistent with theframers'belief concerning the concept of natural rights, inherent in man. Such rights and liberties, preexistent in man, forever rest beyond the power of the State, through itsGovernment, to intrude upon and to destroy. This sacred precept, the dissenting Justices, in Heller, would not accept, could not accept,would never accept.Thus, the conclusions they reached in Heller were the opposite to, diametrically opposed tothose conclusions drawn by the Court's majority. The philosophical differences dividing liberal wing and conservative wing Justices are much ingrained, and marked. Those philosophical differences manifest in the Courts majority opinion and in the two dissenting opinions. Those differences continue to play out in the rulings and reasoning of the judges who sit on the lower U.S. District Courts and on the higher U.S. Circuit Courts of Appeal. The differences cannot be reconciled. They will never be resolved. The differences are deep set, visceral, as well as intellectual. Surely, the Justices of the U.S. Supreme Court were aware of thenature of and extent of thephilosophical differences that lay between them, that informed theirnotionsof the individual's relation to Government. Theypushed back and pushed backhardagainst the majority opinion in Heller, written by Scalia. But the dissenting opinions in Heller, penned by Justices Stevens and Breyer, who also concurred in each other's opinions,in Heller are legally and logically weak. Thereasoningof the dissenting Justicesislogically faulty, ofteninternallyinconsistent, incoherent, and clearlyantithetical to the framers' ideas concerning the fundamental rights and liberties of Americans.

But the dissenting Justices, unlike the majority in Heller, whose conclusions follow from sound premises, cannot overcome a singular hurdle. It is a hurdlethat weakens their position and ultimately makes their position untenable, ultimately reducingtheir argumentto a reductio ad absurdum. The dissenting Justices must accept one premise that is a basic assumption of the Heller Court majority, namely that the right of the people to keep and bear arms can,at least in theory,under the dissenting Justices' thesis, be vindicated. This is critical. For, ifthe right of the people tokeep and bear arms cannot be vindicated,then the right does not exist, and the right codified in theSecond Amendment reduces the Second Amendment to a nullity asthe right sits empty in the Second Amendment, as abald face lie. Ofcourse the dissenting Justices hold contempt for the right embodied in the Second Amendment. But, they dare not say that. They cannot say thateven as inconsistencies in their positionillustrate that the rightcodified in the Second Amendment simply cannot, under their thesis, be vindicated.

It is a painful thing to seeand their contempt for the rightcodified in the Second Amendment lurks, like some hideous beast, just beneath the surface of their legal opinions.

Justice Stevens, in the first paragraph of his dissenting opinion, joined by Justices Souter, Ginsburg and Breyer, says, The question presented by this case is not whether theSecond Amendment protects a collective right or an individual right. Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right. District of Columbia vs. Heller, 554 U.S. at 636; 128 S. Ct. at 2822; 171 L. Ed. 2d 684. Yet,Justice Stevenslays outthis oddgambit,proclaiming unconvincingly and, in fact, inconsistently, that, the individual right of the people to keep and bear armscan be vindicated, notwithstanding that the right is tied exclusivelyto ones connection with and service in a militia. But, is not the right of the people to keep and bear arms,then, as argued by Justice Stevens,a collective right, after all?If so, the rightcannot be an individual right. It is one or the other, not both; and it must be one or the other.But, thetwo are mutually exclusive.But, if the right of the people to keep and bear armsis a collective right, after all, then, how is the right everto be vindicated? We constantly get back to the same problem with the dissenting Justice's thesis. Justice Stevens' opening paragraph does not set forth a vehicle through which he might argue, soundly, that a right exists under the Second Amendment that can be vindicated. And, thepoint that he puts forth in the opening paragraph of his dissenting opinion, namely, that the distinction between individual rights and collective rights is not a critical question before the Court is false.

JusticeStevensattempts to conflate the concept of individual rights and collective rights, ostensibly to support the notion that the right of the people to keep and bear arms that he proclaims to be tied solely to one's connection with a militia, can be vindicated. He knows that collective rights cannot be vindicated. So, he posits thatthe readercan and shoulddispense with the individual right/collective right distinction in the context of the Second Amendment.He dismisses the importance of the distinction as irrelevant, when, in fact, it is critical to an understanding ofthe import and purport of the sacredright embodied in the Second Amendment. Still, heposits, up front, thatthe readercan and should dispense with the individual right/collective right distinction. We should not dispense with the individual right/collective right distinction, from the legal standpoint, because doing so is an affront to the framers' idea of the right of the people to keep and bear arms as a natural right, governed by natural lawthat the right is not, then, man-made, and, therefore, ought not be constrained by man-made laws. And, we cannot dispense with the individual right/collective right distinction from a logical standpoint, because doing so, in the context of the import of the right of the people to keep and bear arms would, then, be incoherent. Justice Stevens presents this assertion as an assumption to be accepted, as reasonable. It isn't. It is a proposition the truth of which must be proved. He does not prove it. Justice Stevens assertsit anyway, as a given, as a naked assumption, and then proceeds on his merry way with his argument that the right to be vindicated does exist; and that the right can existwithin the notion of connection with one's service in a militiaa collective right, after all,a collective rightthat does not and cannot exist legally, and,more importantly, a right that does not and cannot existlogically.JusticeStevensthereupon, negates, tacitly, at least,the truth of the assumption he makes, and his argument, existing as it does onthat single false assumption, collapses in, on itself. But, Justice Stevens continues with his faulty logic, undeterred. After surmising that the right of the people to keep and bear arms can be vindicated in the context of an individual's connection with a militia,Justice Stevenscontinues with thecrux of his thesis, namelythat the Second Amendment's dependent clause, that he refers to as a preamble, carries the force of the right. Justice Stevens argues that the right of the people to keep and bear arms is conditioned by,limited by the preamble.Justice Stevens claims thatthe preamble iscritical to an understanding of the meaning of theright established. He emphasizes the importance of the preamble to the Second Amendment when he should know that, in law, a preamble never carries, within it, a legally enforceable right at all.

Enforceable rights do not exist in thepreambles to contracts, laws, or even constitutions. Rights exists in the operative portions of contracts, laws, and constitutions. The right of the people to keep and bear arms is not conditioned by the dependent, antecedent clause of the Second Amendment. The rightis contained solely in the independent, operativeclause of Second Amendment. And, in that operative clause of the Second Amendmentthere is no qualification or condition, limiting the extent of the right. Moreover,as an embodiment of a natural law, the right of the people to keep and bear arms cannot be conditioned anyway.

Nonetheless Justice Stevens emphasizes the importance of the antecedent clause, the preamble. Heopines, The preamble to the Second Amendment makes three important points. It identifies the preservation of the militia as the Amendments purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be well regulated. In all three respects it is comparable to provisions in several State Declarations of Rights that were adopted roughly contemporaneouslywith the Declaration of Independence. District of Columbia vs. Heller, 554 U.S. at 640-641; 128 S. Ct. at 2824-2825; 171 L. Ed. 2d 686-687.

Were Justice Stevens correctan opinion still held erroneously by many lower U.S. District Court judges and higher U.S. Circuit Court of Appeals judges as wella question arises whether there is anything left to the right of the people to keep and bear arms that shall not be infringed. For, if the right of the people to keep and bear arms extends merely to ones service in a militia, does not that interpretationessentially destroy the right embodied in the Amendment? It does; and, in fact, that is the point Justice Scalia was getting at in Heller when taking Justice Stevens to task, and it is a point that Justice Stevens was never able to effectively counter, try as he did.

Justice Stevens was, apparently, astute enough to recognize the problem with his position. Its a problem that transcends legal considerations. It is one that rises to the level of a logical defect in his thesis. He therefore felt compelled to respond to it, albeit he did so in a footnote. But Justice Stevens response is confusing and ultimately logically unsatisfactory.

Attempting to circumvent Justice Scalias point, Justice Stevens asserted inhis typicalroundabout, fashion that, The Court assumesincorrectly, in my viewthat even when a state militia was not called into service, Congress would have had the power to exclude individuals from enlistment in that state militia. See ante, at 600, 171 L. Ed. 2d, at 662. That assumption is not supported by the text of the Militia Clauses of the original Constitution, which confer upon Congress the power to organiz[e], ar[m], and disciplin[e], the Militia, Art. I, 8, cl. 16, but not the power to say who will be members of a state militia. It is also flatly inconsistent with the Second Amendment. The States' power to create their own militias provides an easy answer to the Court's complaint that the right as I have described it is empty because it merely guarantees citizens' right to use a gun in an organization from which Congress has plenary authority to exclude them. Ante, at 600, 171 L. Ed. 2d, at 662. District of Columbia vs. Heller, 554 U.S. at 655 fn 20; 128 S. Ct. at 2833 fn 20; 171 L. Ed. 2d 695 fn 20.

Justice Stevens argues in his dissenting opinion that Congress cannot exclude ones right to keep and bear arms. But, suppose a State should decide to exclude ones right to keep and bear arms. What then does that make of the individual right of the people to keep and bear arms and in what manner would a person be able to vindicate that right against ones own State? But, there is a more serious problem. For, even as to Congress, if one surmises that the right of the people to keep and bear arms is bound up in the notion of a militia, Congress may very well have plenary power to disband a State militia. In fact, it has done so, and has emphasized its power over a States militia even during the infancy of this Nation. That means the right of the people to keep and bear arms either exists within the context of a man-made constructa militiaand, if so,the right, then, does notexist and never existedat all, or the right exists, quite simply, independently of, and always did exist independently of, one's connection with a militia. The right must exist, then,in the individual.

A States militia, as an organized body of men simply no longer exists. Congress has seen to that. Congress itself has essentially destroyed the organized militia of every State through legislation in which a States National Guard is essentially a component of the United States Army, while the Air National Guard of a State is a component of the United States Air Force. Today, the states security personnel are not militiamen, but principally are the members of local law enforcementand the bulk of counterterrorism work will fall to them. The Security Constitution, 53 UCLA L. Rev. 29, 141-142 (October 2005), by Jason Mazzone, Professor of Law, Brooklyn University Law School.

Expanding upon the point, the author says, in a footnote, In thinking about modern translations and applications of the Constitution, one error must be avoided: equating the National Guard with the old militia. The National Guard claims to be the direct descendant of the militia. See National Guard Website, History, http://www.arng.army.mil/history (last visited July 27, 2004). In fact, the National Guard originated in the early twentieth century as a part of the national military. See Act of Jan. 21, 1903 (the Dick Act), ch. 196, 32 Stat. 775 (promoting the efficiency of the militia, and for other purposes and forming the Organized Militia as the State National Guard, in accordance with the organization of the Army, and with federal funds and army instructors); Act of June 3, 1916 (National Defense Act), ch. 134, 39 Stat. 166 (making the National Guard part of the Army). Moreover, the National Guard is nothing like the old militia. The cornerstone of the Constitution's militia was universal service (by adult white men), whereas the National Guard is an entirely voluntary corps. The militia originated as a local institution under the authority of the states, but the National Guard is, by law, part of the national military, run by, paid for, and mobilized by the national government. See Uviller & Merkel, supra note 425, at 142-43. Indeed, the militia . . . was designed and supported as an alternative to the professional standing army of the central government. The modern National Guard, then, is not just different from the militia referred to in the Constitution, it is in many ways, its antithesis. Id. at 153-54 (concluding that there is today no functionally equivalent entity of the old militia). The militia was not only separate from the national army, it was meant to outnumber and overpower it. (Recall Madison's claim about what a half million militiamen could do to twenty-five or thirty thousand regulars. See supra text accompanying note 177.) Today, though, more than 1.4 million troops belong to the regular United States military establishment the Army National Guard has about 360,000 members. Uviller & Merkel, supra note 425, at 143. The distinction between the old militia as an alternative to a standing army and the National Guard as the army itself is symbolized by a further difference: who takes care of the weapons. Militiamen kept their guns at home because they might need them at any moment to rise up in arms against oppression. Weapons for use by National Guardsmen are kept under lock and key in federal armories. Further, the only armed fighting Guardsmen do is at the direction of the government itself. See id. at 143-44. (Without pressing the point too far, police officers today keep and maintain their own weapons; it is also a fair assumption that to the average citizen, seeing a police officer, gun in holster, patrolling a street, is less startling than seeing a Guardsman in fatigues with an M16.) For all of these reasons, it is wrong to read the Constitution's militia provisions as referring today to the National Guard. At the same time, the federal government can, of course, deploy the National Guard as part of the national military for homeland security purposes. 53 UCLA L. Rev. 29, 141-142 fn 621 (October 2005), by Jason Mazzone, Professor of Law, Brooklyn University Law School.

To tie the right of the people to keep and bear arms into the notion of a militia or into the descendent of the militiathe National Guard, which is essentially a part of a standing armythe very thing the framers sought, in the codification of the right in the Second Amendmentto bea guard againstturns the rightinto a blasphemous,ludicrous caricature. Justice Stevens must have known of the disingenuousness of his remarks in Heller. One can forgive Justice Stevens intellectual fallibility. But one cannot forgive, nor should one forgive, blatant hypocrisy.

Eleven years prior to Heller, Justice Stevens wrote his dissenting opinion in Printz vs. United States, 521 U.S. 898, 117 S. Ct. 2365, 138 L. Ed. 2d 914(1997). This was a case where, as in Heller, not incidentally, Justices Souter, Breyer, and Ginsburgconcurred in Justice Stevens' dissenting opinion. Justice Stevens' dissenting opinion in Printz may be perceived as a precursor to his dissenting opinion in Heller, in which the Justice elaborates on his desire for a strong federal Government to thwart the excesses of the publicwhere excess means the existence of an armed citizenry. Justice Stevens' contempt for the Second Amendmenta contempt shared by the liberal wing of the Court that concurred in his opinionis on full display in Printz. Again, as in Heller, Justice Stevens' twists his words, arguing,in Printz, essentially that the Federal Government must require the individual States to clamp down on an armed citizenry. This according to Justice Stevens,in his usualtwisted logic, serves as a guard against tyranny. For, if the Federal Government should, on its own, simply create a vast bureaucracy to clamp down on an armed citizenry, that would certainly lead to tyranny. But, does there exist a difference?

In Printz, a case cited by the author of the aforementioned law review article, the U.S. Supreme Courtin an opinion penned by Justice Scalia, for the majorityinvalidated a portion of the Brady Handgun Violence Prevention Act that prohibits the Federal Government from commandeering State Executive Officials from enforcing Federal law. Justice Stevens and the other liberal wing contingent of the high Court took exception to that. Justice Stevens argued that Congress was well within its power to compel a State's assistance in fighting the epidemic of gun violencewhich, Stevens felt the Brady Act was enacted to combat.

With his proclivity to contort ideas through verbal legerdemain,Justice Stevensargued, in Printz, that tyranny is less likely to occur in our Nation when the Federal Government can and ought to compel the States to act in its behest than were the Federal Government simply to create vast national bureaucracies to implement its policies. Printz vs. United States, 521 U.S. at 959, 117 S. Ct. at 2396, 138 L. Ed. 2d at 959(1997).

Extrapolating from Printz, one might reasonably argue that Stevens makes a similar case in his dissenting opinion in Heller. Tyranny, for Stevens is less likely to occur when the Federal Government can compel the States to constrain possession of firearms in the citizenry than were the Federal Government to create a vast National bureaucracy to do the job itself. But, in terms of the result, this is truly a distinction without a difference. If the militia is identified with the National Guard and the National Guard is essentially an adjunct of the United State Army and if the individuals right to keep and bear arms is a function of ones connection with a State militia qua a States National Guard, wherein is the right to keep and bear arms, existent in the individual, to be vindicated? If the threat, as Justice Stevens sees it, as evidenced in his dissenting opinion in Printz, is found in the very existence of an armed citizenry as situated apart from that armed citizenrys connection with a States militia qua National Guard, as merely an adjunct of the Federal Governments standing army, then wherein is one to envision anything left of the Second Amendment as a right to be vindicated?

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Militia Clause In The Second Amendment - AmmoLand Shooting Sports News

Rev. Tom Lovorn, Th.D.

Q. Does the Bible have anything to say about our Second Amendment rights, which were hearing so much about in the current political climate? Christine Stawarz, Prince George, Va.

A. The Second Amendment was drafted by James Madison in 1789. It and the other nine amendments, forming what we call the Bill of Rights, were ratified and added to our Constitution in 1791. They are understood to state the inherent rights of every citizen.

The Second Amendment 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. One of our statesmen said its intended purpose was to support the natural rights of self-defense, resistance to oppression, and the civic duty to act in concert in defense of the state.

Although Isaiah 9:6 predicted the Messiah would be called the Prince of Peace, it is a reference to the heart-peace he gives to believers and to his future millennial reign when there will be peace in the valley (Isaiah 11:1-9). It is true that Jesus said in Matthew 5:39 his followers should turn the other cheek when we are smitten. But, we must not take that out of the context of love which Jesus was preaching. He was not talking about defending ourselves in a life-threatening situation; he was teaching that we should resist our natural reaction in order to help a fellowman learn the ideal response of love. Gods love in us should cause us to forgo our own concerns to seek the best for others.

True: Jesus taught that we should, Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you; that ye may be the children of your Father which is in heaven (Matthew 5:44-45). However, Jesus never said we should not defend ourselves from danger. In fact, in Numbers 22:31 the Angel of the Lord, whom we suppose to be preincarnate Jesus, had his sword drawn against the false prophet Balaam.

In our present culture of lawlessness and greed, believers have permission from Jesus in Luke 22:36 to carry a sword. He also said in Luke 11:21 (CEV), When a strong man arms himself and guards his home, everything he owns is safe.

The Rev. Dr. Tom Lovorn is pastor of Gods Storehouse Baptist Church in Richmond and he writes a weekly question and answer column for The Progress-Index. Columns are real questions from readers around the world. Dr. Tom, a Petersburg resident, is a long-time columnist with The Progress-Index and a former pastor in the Petersburg community.Note: This column was originally published in The Progress-Index May 28, 2016. Dr. Lovorn requested a week off from his writing responsibilities, so we searched our archives for a column that was relevant and worthy of repeating.

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Second Amendment rights - Progress Index

One day in October 2010, a man by the name of Angel Mendez was at his home, asleep on a futon next to his pregnant girlfriend. Hed built the home himself, and it almost redefined the word modest. It was little more than a one-room shack in the back yard of another persons residence, with a blanket for a door. He awoke from his nap to see a person pulling back the blanket. He picked up his BB gun, and heard someone shout gun! before 15 rounds came flying at him. He was grievously injured, ultimately losing a leg. His unarmed girlfriend was also wounded.

It turns out the person who shot at Mendez was a police officer. Los Angeles County sheriffs deputies Christopher Conley and Jennifer Peterson were looking for a parolee who was believed to be armed and dangerous. They did not have a warrant to search Mendezs home, and they did not announce their presence or identity before accosting him. They entered, saw his BB gun, and started firing.

Lest you think this is a unique incident, in March I wrote about the terrible case of Andrew Scott. Like Mendez, Scott was an innocent man at home with his girlfriend when the police came. Like Mendez, he was mistaken by police for the armed and dangerous man they sought. They pounded on his door, but they didnt have a warrant, and they didnt announce themselves. Like any reasonable person, he was alarmed at the late-night disturbance and had no reason to expect the police were its source. So he grabbed his gun. When he opened his door, the police shot him dead in two seconds.

Neither Mendez nor Scott did anything wrong. They were both absolutely within their constitutional rights to pick up a weapon in response to the unidentified persons attempting to enter their homes. Yet Mendez, and Scotts heirs, have so far lost in court, unable to collect any meaningful compensation from the police officers who shot them precisely because they exercised those rights.

Scotts estate lost at the Eleventh Circuit Court of Appeals, which held that the doctrine of qualified immunity protected the officers from having to pay any compensation to the innocent victims of their mistaken and wrongful use of force. Mendez lost yesterday in the Supreme Court, which ruled unanimously against a quirky Ninth Circuit use-of-force rule that allowed excessive-force claims where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation. In other words, if the officers violated Mendezs Fourth Amendment rights by unlawfully entering his home, they could be held liable for shooting Mendez even if the shooting itself might otherwise have been justified under existing law.

The Supreme Court found that the Ninth Circuits rule violated court precedent requiring lower courts to instead apply a totality of the circumstances approach to such cases, under which the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The Supreme Court then remanded the case back to the lower courts, where the deck is already stacked against Mendez. The court of appeals, after all, already ruled that the officers had qualified immunity from Mendezs claim, and the trial court determined that Mendezs decision to pick up the BB gun was a superseding cause that limited the damages he could collect.

Its time for a different approach. Its time for Fourth Amendment jurisprudence to explicitly recognize and accommodate the Second Amendment. If the Second Amendment means anything at all, it means that I have a right to defend myself in my own home, where as Justice Scalia noted in District of Columbia v. Heller the need for defense of self, family, and property is most acute. Moreover, the Second Amendment exists in large part to protect the private citizen from state tyranny. It is odd indeed, then, that current law largely grants officers of the state the right to kill me in my own home even if I do nothing wrong. Indeed, the very act of exercising my Second Amendment rights picking up a gun makes it less likely that I will prevail in court.

Theres an old saying that a person would rather be judged by twelve than carried by six. In times of peril, the thinking goes, its better to risk a jury than to risk your life. But under modern jurisprudence, when the police barge in youre likely to be carried by six and then judged wanting by one: Youll die in the face of overwhelming firepower, and your estates case will be tossed right out of court by a judge.

This presents the homeowner especially if he lives in a high-crime area where the need for a gun is most dire with an impossible situation. In the event of a home intrusion, he has to identify the intruder before he picks up his gun or risk being shot dead instantaneously. If the cops make a good-faith mistake, the burden is on the homeowner. If the cops act improperly, as they did in both Scott and Mendez, the burden is still on the homeowner. Heads, they win; tails you lose.

What is to be done about this? Civil-rights jurisprudence must recognize the central legal truths of Heller and empower the original meaning of the Constitution. Police use of force against an armed homeowner should be evaluated on Second Amendment grounds, not merely as an unreasonable search or seizure. Agents of the state should be held liable for violations of Second Amendment rights when they kill or injure someone solely because he or she exercised those rights. Shooting an innocent man in his own home because he grabs a gun when an unidentified person pounds on his door or barges through it isnt just an unreasonable search or seizure. Its a direct violation of his clearly established right to keep and bear arms.

Its not too much to ask police officers to obtain warrants and to knock and announce their presence in all but the most exigent circumstances. In both Scott and Mendez, there was no good reason for police not to identify themselves. Yet in both cases, a residents reasonable response to police failures undermined his efforts to hold them accountable for those failures in court. That is unacceptable. When a person enters my house unannounced, I should have the right to hold a gun in my hand. To argue otherwise is to eviscerate the Second Amendment.

READ MORE: A Federal Appeals Court Goes to War against the Second Amendment What Justice Gorsuch Might Mean for the Second Amendment Why Would Anyone Want a Firearm?

David French is a senior writer for National Review, a senior fellow at the National Review Institute, and an attorney.

See more here:
Angel Mendez Case Shows Flawed Second Amendment ... - National Review

One day in October 2010, a man by the name of Angel Mendez was at his home, asleep on a futon next to his pregnant girlfriend. Hed built the home himself, and it almost redefined the word modest. It was little more than a one-room shack in the back yard of another persons residence, with a blanket for a door. He awoke from his nap to see a person pulling back the blanket. He picked up his BB gun, and heard someone shout gun! before 15 rounds came flying at him. He was grievously injured, ultimately losing a leg. His unarmed girlfriend was also wounded.

It turns out the person who shot at Mendez was a police officer. Los Angeles County sheriffs deputies Christopher Conley and Jennifer Peterson were looking for a parolee who was believed to be armed and dangerous. They did not have a warrant to search Mendezs home, and they did not announce their presence or identity before accosting him. They entered, saw his BB gun, and started firing.

Lest you think this is a unique incident, in March I wrote about the terrible case of Andrew Scott. Like Mendez, Scott was an innocent man at home with his girlfriend when the police came. Like Mendez, he was mistaken by police for the armed and dangerous man they sought. They pounded on his door, but they didnt have a warrant, and they didnt announce themselves. Like any reasonable person, he was alarmed at the late-night disturbance and had no reason to expect the police were its source. So he grabbed his gun. When he opened his door, the police shot him dead in two seconds.

Neither Mendez nor Scott did anything wrong. They were both absolutely within their constitutional rights to pick up a weapon in response to the unidentified persons attempting to enter their homes. Yet Mendez, and Scotts heirs, have so far lost in court, unable to collect any meaningful compensation from the police officers who shot them precisely because they exercised those rights.

Scotts estate lost at the Eleventh Circuit Court of Appeals, which held that the doctrine of qualified immunity protected the officers from having to pay any compensation to the innocent victims of their mistaken and wrongful use of force. Mendez lost yesterday in the Supreme Court, which ruled unanimously against a quirky Ninth Circuit use-of-force rule that allowed excessive-force claims where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation. In other words, if the officers violated Mendezs Fourth Amendment rights by unlawfully entering his home, they could be held liable for shooting Mendez even if the shooting itself might otherwise have been justified under existing law.

The Supreme Court found that the Ninth Circuits rule violated court precedent requiring lower courts to instead apply a totality of the circumstances approach to such cases, under which the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The Supreme Court then remanded the case back to the lower courts, where the deck is already stacked against Mendez. The court of appeals, after all, already ruled that the officers had qualified immunity from Mendezs claim, and the trial court determined that Mendezs decision to pick up the BB gun was a superseding cause that limited the damages he could collect.

Its time for a different approach. Its time for Fourth Amendment jurisprudence to explicitly recognize and accommodate the Second Amendment. If the Second Amendment means anything at all, it means that I have a right to defend myself in my own home, where as Justice Scalia noted in District of Columbia v. Heller the need for defense of self, family, and property is most acute. Moreover, the Second Amendment exists in large part to protect the private citizen from state tyranny. It is odd indeed, then, that current law largely grants officers of the state the right to kill me in my own home even if I do nothing wrong. Indeed, the very act of exercising my Second Amendment rights picking up a gun makes it less likely that I will prevail in court.

Theres an old saying that a person would rather be judged by twelve than carried by six. In times of peril, the thinking goes, its better to risk a jury than to risk your life. But under modern jurisprudence, when the police barge in youre likely to be carried by six and then judged wanting by one: Youll die in the face of overwhelming firepower, and your estates case will be tossed right out of court by a judge.

This presents the homeowner especially if he lives in a high-crime area where the need for a gun is most dire with an impossible situation. In the event of a home intrusion, he has to identify the intruder before he picks up his gun or risk being shot dead instantaneously. If the cops make a good-faith mistake, the burden is on the homeowner. If the cops act improperly, as they did in both Scott and Mendez, the burden is still on the homeowner. Heads, they win; tails you lose.

What is to be done about this? Civil-rights jurisprudence must recognize the central legal truths of Heller and empower the original meaning of the Constitution. Police use of force against an armed homeowner should be evaluated on Second Amendment grounds, not merely as an unreasonable search or seizure. Agents of the state should be held liable for violations of Second Amendment rights when they kill or injure someone solely because he or she exercised those rights. Shooting an innocent man in his own home because he grabs a gun when an unidentified person pounds on his door or barges through it isnt just an unreasonable search or seizure. Its a direct violation of his clearly established right to keep and bear arms.

Its not too much to ask police officers to obtain warrants and to knock and announce their presence in all but the most exigent circumstances. In both Scott and Mendez, there was no good reason for police not to identify themselves. Yet in both cases, a residents reasonable response to police failures undermined his efforts to hold them accountable for those failures in court. That is unacceptable. When a person enters my house unannounced, I should have the right to hold a gun in my hand. To argue otherwise is to eviscerate the Second Amendment.

READ MORE: A Federal Appeals Court Goes to War against the Second Amendment What Justice Gorsuch Might Mean for the Second Amendment Why Would Anyone Want a Firearm?

David French is a senior writer for National Review, a senior fellow at the National Review Institute, and an attorney.

Continued here:
A Sad Supreme Court Case Highlights the Need for Smarter Second Amendment Jurisprudence - National Review