Thursday, May 01, 2014

Second Amendment v. Article I, Section 8

"Everybody" seems to know exactly what the following means:

"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."

This was ratified by the States and Thomas Jefferson as Secretary of State authenticated it.

However, what Congress passed was:

"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."

Just what does the missing comma mean?  I'll defer to grammarians on this, but if there is any difference in meaning, it makes it harder to determine the intent of Congress.

Whatever, Cliven Bundy and his supporters are using "the right to bear arms" as a justification of his armed refusal to obey a court order that the Bureau of Land Management should confiscate his cattle for his non-payment of fees for use of Federal Land.

He seems to be ignoring Article I, Section 8 of the Constitution that includes:

“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

“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, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the militia according to the discipline prescribed by Congress;”

Thus my general tendency to regard as wholly untenable any approach to the Constitution that describes itself as obviously correct and condemns its opposition as simply wrong holds for the Second Amendment as well.  The Constitution contains too many phrases that are open to interpretation.

A Tea Party member stated on a To the Best of Our Knowledge broadcast that she could determine the writers' intent by reading the Constitution.  She must be more knowledgable than the Justices of the Supreme Court.  They rarely have unanimous decisions. Even if they do, the decision can be overturned by a later court.  Consider that the "separate by equal" case justifying school segregation was overturned later by "Brown vs, Board of Education".

Even decisions on the Second Amendment have changed over time.

One of the early cases was US v. Cruikshank (1876) where the defendants were accused of threatening citizens of African descent who were exercising their own rights to peaceably assemble.

If the Second Amendment was intended as an individual right, then shouldn’t the slaves have had the right to bear arms for self-defense against oppressive slave owners and overreaching state governments that condoned slavery?

In Presser v. Illinois (1886), Presser claimed that the armed parade he was leading was protected by the Second Amendment.  Illinois law forbade anybody to form a military company without a license from the state.  The Supreme Court ruled against Presser.  Among the arguments was,  “The exercise of this power [to regulate the militia] by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine.”

Justice James Clark McReynolds wrote the opinion in US vs. Miller (1939) that The National Firearms Act was not unconstitutional as an invasion of the reserved powers of the States and not violative of the Second Amendment of the Constitution.  McReynolds was a very conservative judge who opposed much of Roosevelt’s New Deal legislation.
Then everything changed with District of Columbia v. Heller in 2008.  One of the pronouncements is “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

This reads as if written by an “activist judge” who interprets the Constitution to suit ideological beliefs rather than what the Constitution actually says.  This is surprising to come from a judge appointed by a president of a party who long railed against “activist judges”.

I wonder if the current Supreme Court would rule in Cliven Bundy’s favor because the Congress does not have the authority to call out the militia “to suppress insurrections”.  I wonder that if many in Congress voted to call out the militia would the Republicans then do everything they could to stop this action.

As so many of us are, the Republicans seem to be selective in which laws they support and which they oppose.  Are not laws prohibiting abortion an imposition on individual liberty?  Are not laws favoring certain religious views in schools an imposition on those who do not have those views?

And Republicans seem the most eager to have a large standing army to go anywhere the President wants for whatever reason.  Boy!  Talk about not following the intent of the Founders.

What is an independent to do?  “Conservatives” want to go back to a past that never was, and “Liberals” want a future that will never be.