How many times have you heard an opponent of gun control cite the "right to keep and bear arms" without mentioning the introductory phrase "A well regulated Militia, being necessary to the security of a free state ..."?
The amendment does not say "the right of militia members to keep and bear arms shall not be infringed" it says "the right of the people". As a simple matter of English grammar he first phrase does not place any limits on the second phrase. But if you insist on a limitation to the militia then most adult men and some women have a right to keep and bear arms. You would exclude some women but I don't think that just keeping guns from women is what you are trying to do.
The Second Amendment in the Courts
"Dred Scott v. Sandford was the first case in which the Supreme Court mentioned the right to
keep and bear arms. The issue before this pre-Civil War and pre-emancipation court was
whether blacks were "citizens." The court stated that if blacks were citizens, they would have
the same constitutional protections afforded to white citizens, which included the right to
keep and bear arms...
Nowhere in the opinion does the court suggest that the right to keep and bear arms differs
from other fundamental rights and protects only the state government's organized military.
Clearly, the court considered the right to keep and bear arms as a fundamental individual
right of every "citizen."...
...United States v. Cruikshank, a post-Civil War and post-emancipation case, arose out of the
disarmament and murder of freed blacks in Louisiana (the "Colfax Massacre"). Klansmen were
subsequently charged by the federal prosecutor with a conspiracy to prevent blacks from
exercising their civil rights, including the right of peaceful assembly and the right to keep
and bear arms. The court recognized that the right to peacefully assemble and the right of
the people to keep and bear arms were natural rights which even preexisted the
Constitution.
The court stated, however, that the First and Second Amendment rights were protections
against the federal government only, and did not restrict state government action. The court
held that because these fundamental rights existed independently of the Constitution, and
because the First and Second Amendments guaranteed only that these rights shall not be
infringed by the federal Congress, the federal government had no power to punish a violation
of these rights by the Klansmen, who were private individuals. Although the Second
Amendment protected a citizen from having his right to keep and bear arms violated by the
federal government, the Second Amendment did not protect a citizen from the acts of other
private persons....
...Presser v. Illinois involved an Illinois statute which did not prohibit the possession of arms,
but merely prohibited "bodies of men to associate together as military organizations...
...In Miller v. Texas, the defendant challenged a Texas statute on the bearing of pistols as
violative of the Second, Fourth, and Fourteenth Amendments. The problem for Miller was that
he failed to timely raise these defenses in the state trial and appellate courts, raising these
issues for the first time in the U.S. Supreme Court. While the court held that the Second and
Fourth Amendment (prohibiting warrantless searches), of themselves, did not limit state
action (as opposed to federal action), the court did not address the defendant's claim that
these constitutional protections were made effective against state government action by the
Fourteenth Amendment, because Miller did not raise these issues in a timely manner. The
Court, thus, left open the possibility that these constitutional rights were made effective
against state governments by the Fourteenth Amendment. Lastly, it should be noted that in
this case, as in the other Supreme Court cases, the defendant was not a member of the
Armed Forces, and yet the Supreme Court did not dismiss Miller's claim on that ground; thus,
Miller, as a private citizen, did enjoy individual Second Amendment protection, even if he
was not enrolled in the National Guard or Armed Forces....
...Robertson v. Baldwin did not involve a Second Amendment claim, but in discussing the 13th
Amendment, the Court again recognized the Second Amendment as a "fundamental"
individual right of citizens...
...U.S. v. Miller was the first case in which the Supreme
Court addressed a federal firearms statute which was being challenged on Second
Amendment grounds. The defendants, who had been charged with interstate transportation
of an unregistered sawed off shotgun, challenged the constitutionality of the federal
government's National Firearms Act of 1934 ("NFA"). The NFA, a tax statute, did not ban any
firearms, but required the registration of, and imposed a $200 transfer tax upon, fully
automatic firearms and short barreled rifles and shotguns. The federal trial court held that
the NFA violated the defendants' Second Amendment rights. After their victory in the trial
court, defendant Miller was murdered and defendant Layton disappeared. Thus, when the
U.S. government appealed the case to the U.S. Supreme Court, no written or oral argument
on behalf of the defendants was presented to the Supreme Court.
Gun prohibitionists often cite this case for the proposition that the court held that the
Second Amendment only protected the right of the states' National Guard to have
government issued arms (i.e., the "Collective Rights" theory). This is an untruth. In fact, the
court held that the entire populace constituted the "militia," and that the Second
Amendment protected the right of the individual to keep and bear militia type arms.
Recounting the long history of the "militia" in the colonies and the states, and the
Constitutional Convention, the court stated that these "show plainly enough that the Militia
comprised all males physically capable of acting in concert for the common defense."
The court also made clear that it was the private arms of these men that were protected.
(O)rdinarily 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."
...The court held that the defendants' right to possess arms was limited to those arms that
had a "militia" purpose. In that regard, it remanded the case to the trial court for an
evidentiary hearing on whether or not a short barreled shotgun has some reasonable
relationship to the preservation or efficiency of the militia. Thus, in order for a firearm to be
constitutionally protected, the court held, the firearm should be a militia type arm.
But the court did not require that Miller and Layton (neither of whom were members of the
National Guard or Armed Forces) be members of the National Guard or Armed Forces in order
to claim Second Amendment protection. Nor did the Supreme Court remand the case for the
trial court to determine whether Miller and Layton were members of the National Guard or
Armed Forces. Clearly, under the court's ruling, Miller and Layton had a right to claim
individual Second Amendment protection, even if they were not members of the National
Guard or Armed Forces. Thus, the case stands for the proposition that "the people," as
individuals (not the states), had the constitutionally protected Second Amendment right to
keep and bear any arms that could be appropriate for militia-type use....
nraila.org
U.S. v. Hale, 978 F.2d 1016 (8th Cir. 1992)
You complain that Eric used an apeals court case then you use a case decided on the same level to support your argument.
Since Miller was decided, lower federal and state courts have addressed the meaning of the Second Amendment in more than thirty cases. In every case, the courts have decided that the Amendment guarantees a right to be armed only in connection with service in a "well regulated Militia."
Not true. The case that Eric posted is the most reasent to reach the federal appeals level and it expressesly says the right is an individual right. It is not the only post Miller case to say this.
And in Lewis v. United States, 445 U.S. 55 (1980), the Court upheld the federal law banning felons from
possessing guns. The Court found no "constitutionally protected liberties" infringed by the federal law.
The court found no constitutionally protected liberties because that case dealt with convicted felons who lose a number of other rights besides their second ammendment rights, including the right to vote and to hold office.
Other cases -
"A number of recent United States Supreme Court cases have referred to the Second
Amendment as a fundamental individual right. In Moore v. City of East Cleveland, a
Fourteenth Amendment due process case, the Supreme Court put the right to keep and bear
arms in company with other individual rights guaranteed by the Bill of Rights: "the freedom
of speech, press, and religion; the right to keep and bear arms; the freedom from
unreasonable searches and seizures . . . .". In Planned Parenthood of Southeastern Pa. v.
Casey, an abortion case, the Supreme Court again quoted Justice Harlan's above noted list of
individual rights.
In United States v. Verdugo-Urquirdez, a Fourth Amendment case, the Supreme Court
interpreted the meaning of the term "the people" in the Bill of Rights. The court stated that
the term "the people" in the Second Amendment had the same meaning as in the Preamble
to the Constitution and in the First, Fourth, and Ninth Amendments. In other words, the term
"the people" means at least all citizens and legal aliens in the United States. This case thus
makes clear that the Second Amendment is an individual right that applies to individual
law-abiding Americans."
nraila.org
Tim |
