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By tabonsell (about the author)
Become a Fan (1 fan) -- Page 4 of 4 page(s)
While a lower court was accurate in voiding DC's ban on private ownership of handguns and the Supreme Court agreed, they both did so by ignoring the Constitution. The Second Amendment's reference to a "well regulated militia" was designed to refer us back to the body of the Constitution at Article I, Section 8, paragraph 16, that empowers Congress the authority to organize, arm and discipline the various state militias. The arming part put the power to determine who is eligible to own a firearm definitely in the hands of Congress, although the amendment does not indicate that actual militia membership is required. The Founders wanted society to be armed so that armed men could be mustered into the state militias to protect the nation. Because Congress has the power to arm the militias, states and cities can not deny ownership of firearms to anyone who might be eligible under federal law. States and local governments do retain the power to determine the use of public property so could make it a crime to possess a firearm on public property such as buildings and streets (unless carrying such arms to militia duties were authorized by Congress). States and localities also have the power to outlaw the use of firearms during the commission of a crime, but ownership is another matter.
But the courts in ruling that each individual has a personal right to own firearms undermines the power of Congress because it totally ignored the introduction of the amendment that refers back to the powers of Congress to arm the militias. The right "to keep and bear arms" is a communal right not an individual right, which the court ignored. If it were an individual right, the amendment would have to read "no person's right to keep and bear arms shall be infringed." If it were an individual right, such as is religion, every person could legally own a firearm, including released murderers, insane homicidal maniacs or any criminal of any stripe. So when Scalia wrote for the court that, "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms" he and the court contradicted himself and itself.
James Madison, who wrote the amendment said, "A well regulated militia, composed of the body of the people, trained in arms, is the best most natural defense of a free country." Madison even wrote that belief into the Second Amendment with the words, "A well regulated militia being necessary for the security of a free State ..." which means national defense and nothing else. Madison wrote the Second Amendment to facilitate national defense, and for no other reason. That is what he said and that is what the judges ignored.
When the court ruled that each individual had a right to have a firearm for "the defense of hearth and home," it put words into the Constitution that aren't there, the exact thing that Scalia claims others do. The amendment says nothing about self-defense, self-protection or anything like that; it refers to national defense.
The true meaning of the Second Amendment, which the court missed, is that Congress has sole authority over ownership of firearms while states and cities have none. Congress cannot totally outlaw firearm ownership in society but can deny that ownership to some people. Right wingers constantly claim that the power to make gun-control laws will result in confiscation of all guns. That is nonsense and shows conservatives have no understanding of the Constitution. Both the Fifth and Fourteenth amendments say no one can be deprived of life, liberty or property without due process of law. Due process consists of indictment, trial, conviction and punishment, the Fifth clearly shows that. A firearm is property, so it can't be confiscated except as a punishment following a criminal conviction.
While the rule of law to invalidate DC's banning of handguns was correct, the reasoning was faulty and didn't follow the Constitution.
This court had historical opportunities to firmly state what "cruel" punishment means and to separate it from "unusual" punishment, to reaffirm the requirement of necessity in law making and to finally declare precisely what the Second Amendment means but missed the chances by ignoring what that document says and substituting the judges' personal opinions on all matters.
Scalia claims that he is an "originalist" on the Constitution; that is, he claims to adhere to the meanings and concepts the Founders intended and that the Constitution's words are clearly meaningful to him. On these three issues Scalia is defying his claim.
And McCain wants more judges on the court who neglect the Constitution, disregard precedent, ignore logic and who engage in "abuse of judicial authority".
Become a Fan (1 fan) -- Page 4 of 4 page(s)
While a lower court was accurate in voiding DC's ban on private ownership of handguns and the Supreme Court agreed, they both did so by ignoring the Constitution. The Second Amendment's reference to a "well regulated militia" was designed to refer us back to the body of the Constitution at Article I, Section 8, paragraph 16, that empowers Congress the authority to organize, arm and discipline the various state militias. The arming part put the power to determine who is eligible to own a firearm definitely in the hands of Congress, although the amendment does not indicate that actual militia membership is required. The Founders wanted society to be armed so that armed men could be mustered into the state militias to protect the nation. Because Congress has the power to arm the militias, states and cities can not deny ownership of firearms to anyone who might be eligible under federal law. States and local governments do retain the power to determine the use of public property so could make it a crime to possess a firearm on public property such as buildings and streets (unless carrying such arms to militia duties were authorized by Congress). States and localities also have the power to outlaw the use of firearms during the commission of a crime, but ownership is another matter.
But the courts in ruling that each individual has a personal right to own firearms undermines the power of Congress because it totally ignored the introduction of the amendment that refers back to the powers of Congress to arm the militias. The right "to keep and bear arms" is a communal right not an individual right, which the court ignored. If it were an individual right, the amendment would have to read "no person's right to keep and bear arms shall be infringed." If it were an individual right, such as is religion, every person could legally own a firearm, including released murderers, insane homicidal maniacs or any criminal of any stripe. So when Scalia wrote for the court that, "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms" he and the court contradicted himself and itself.
James Madison, who wrote the amendment said, "A well regulated militia, composed of the body of the people, trained in arms, is the best most natural defense of a free country." Madison even wrote that belief into the Second Amendment with the words, "A well regulated militia being necessary for the security of a free State ..." which means national defense and nothing else. Madison wrote the Second Amendment to facilitate national defense, and for no other reason. That is what he said and that is what the judges ignored.
When the court ruled that each individual had a right to have a firearm for "the defense of hearth and home," it put words into the Constitution that aren't there, the exact thing that Scalia claims others do. The amendment says nothing about self-defense, self-protection or anything like that; it refers to national defense.
The true meaning of the Second Amendment, which the court missed, is that Congress has sole authority over ownership of firearms while states and cities have none. Congress cannot totally outlaw firearm ownership in society but can deny that ownership to some people. Right wingers constantly claim that the power to make gun-control laws will result in confiscation of all guns. That is nonsense and shows conservatives have no understanding of the Constitution. Both the Fifth and Fourteenth amendments say no one can be deprived of life, liberty or property without due process of law. Due process consists of indictment, trial, conviction and punishment, the Fifth clearly shows that. A firearm is property, so it can't be confiscated except as a punishment following a criminal conviction.
While the rule of law to invalidate DC's banning of handguns was correct, the reasoning was faulty and didn't follow the Constitution.
This court had historical opportunities to firmly state what "cruel" punishment means and to separate it from "unusual" punishment, to reaffirm the requirement of necessity in law making and to finally declare precisely what the Second Amendment means but missed the chances by ignoring what that document says and substituting the judges' personal opinions on all matters.
Scalia claims that he is an "originalist" on the Constitution; that is, he claims to adhere to the meanings and concepts the Founders intended and that the Constitution's words are clearly meaningful to him. On these three issues Scalia is defying his claim.
And McCain wants more judges on the court who neglect the Constitution, disregard precedent, ignore logic and who engage in "abuse of judicial authority".
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Thomas Bonsell is a former newspaper editor (in Oregon, New York and Colorado) United States Air Force cryptanalyst and National Security Agency intelligence agent. He became one of (more...)
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