There Is No Rambo Clause In The Constitution

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The Constitution of the United States of America does not give you the right to grab an automatic or semi-automatic assault weapon and wreak havoc on your fellow citizens.

In fact, until the Supreme Court of the United States was packed with conservative justices by George H.W. Bush and his son, the Court had long held that an individual citizen’s right to possess firearms was not a Constitutional right, unless that individual was part of a state militia.

The Second Amendment to the Constitution of the United States of America clearly states:

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.

If you take out both modifying clauses and reduce the Second Amendment to its essence, it reads: “A well regulated Militia, …, shall not be infringed.

Both phrases: “being necessary to the security of a free State” and “the right of the people to keep and bear Arms“, are modifiers of the term Militia and are not the primary intent of the Second Amendment.  Any grammarian can see that, you don’t have to be a Constitutional Scholar.

If one reads the legislative history of the Second Amendment (to non-lawyers, “legislative history” is the collection of all drafts, written statements, debates, etc., of a piece of legislation taken as a whole) it becomes abundantly clear that the intent of the framers of our Constitution was that the Second Amendment was meant to facilitate the maintenance of “a well regulated Militia.”

If I may paraphrase the Second Amendment, it says that your right to bear arms is sacrosanct as long as you are part of a “well regulated Militia.” So if you want to bear arms freely, I believe (with some knowledge of Constitutional law) that you should join a well “regulated” Militia or the National Guard.

While I agree that there are many who would disagree with my view, I firmly believe that just as many if not more of my fellow attorneys would agree with this reading of the Constitution’s Second Amendment.

Why did I mention the last two Republican presidents?

You see, it was not until 2008 after the last conservative justices joined the Supreme Court thus giving conservative justices a five to four majority on the bench that the view discussed above changed – A mere four years ago.

When the first opportunity arrived, the newly conservative court held in a narrow 5-4 decision that the District of Columbia’s gun control law was unconstitutional.  Four justices dissented (District of Columbia v. Heller, 554 U.S. 570 (2008)) and agreed with Justice John Paul Breyer’s dissent which reiterated what had been the law of the land for years relating to the fact that the right to bear arms was pursuant to the maintaining of a well-regulated militia. A good article on the history of this topic can be found in http://www.loc.gov/law/help/second-amendment.php

On an ancillary, but connected point, conservative justices brought forward the concept of “Originalism.”  Simply put, Originalism is the opinion that all Supreme Court cases must be decided in accordance with what the framers of the Constitution wanted as evidenced by their own thoughts and writings – even though the matter might not have existed or was even conceived in all of humanity during the framers’ lifetimes.  But even with this specious “theory,” one would have to read legislative history to glean what you can from the Framers’ writings on their intent for the Second Amendment.  As I stated above, the Second Amendment is clear.  You need to be part of a State Militia to possess weapons.

I fail to understand why noted legal scholars of Originalism, such as Antonin Scalia, cannot see this.

It is time to correct this anomaly and put clear thinking justices on to the Supreme Court.

Note: This article was previously published on this site.  This is an updated version.  The writer is an attorney who did pretty well in his Constitutional Law class.

Blame Mental Illness And Out-Of-Control Media; Never Blame Guns

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Actor Morgan Freeman allegedly made a dramatic plea for sanity with respect to the illogical murder of twenty-seven innocent people on Friday, December 14, 2012.

In this widely distributed piece, Freeman squarely blames the media’s relentless pursuit of ratings and the glorification of violence as the key factors in inciting the mentally ill to take out their assault rifles and amble down to the local school, or theater, shopping mall, or other public gathering place to claim their fifteen minutes of infamy.

The problem with this long diatribe against the press and its feeding frenzy is that Morgan Freeman did not say it or cause it to be distributed.

When I first read the piece, I thought it odd that the piece seemed to be inarticulate as it rambled on toward its conclusion that mental health is the real reason we have these grotesque events in our national fabric.  The piece is absolutely silent on the part that the pervasiveness of guns, particularly semi-automatic assault type rifles, might play in these tragedies.

One can conclude that the Morgan Freeman hoax is yet another disingenuous attempt by gun control opponents to deflect the dialogue from the fact that our love of weapons, big powerful weapons, has become a national disgrace.

To listen to gun advocates, it is never about the guns.

If you do nothing else to remember those twenty first-graders in the coming months, try to give some thought to why it is so important for you to own a semi-automatic assault rifle and hundreds, if not thousands, of rounds of ammunition.  Are there that many well-armed and dangerous deer in your neighborhood?

The writer of the piece is familiar with and has used firearms.

In high school, I actually rose to the rank of sharpshooter in our military cadet corps. The last time that I went to a firing range, after probably thirty years of not picking up a fiream, I score something like 2-3 bulls-eyes out of five shots.

I do not sit in the dark afraid of guns, I just think that we need to control the obscene distribution of assault rifles.

This Is Becoming Ridiculous

Another mass shooting in America, this time in a place of worship.  Seven people , including the suspected gunman, were killed and many more wounded in Milwaukee, Wisconsin at a Sikh Temple.  The gunman was killed by a hero police officer who stopped him  cold despite incurring multiple critical injuries to his person.  When will this madness stop; it almost seems that this is happening every few weeks.  How many innocents must we offer to the altar of gun ownership?

You Do Not Have A Right To Own Firearms, Unless

The Second Amendment to the Constitution of the United States of America clearly states:

“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.”

If you take out both modifying clauses and reduce the Second Amendment to its essence, It reads: “A well regulated Militia, …, shall not be infringed.”

Both phrases: “being necessary to the security of a free State” and “the right of the people to keep and bear Arms”, are modifiers of the term Militia and are not the primary intent of the Second Amendment. Any grammarian can see that, you don’t have to be a Constitutional Scholar.

If one reads the legislative history of the Second Amendment (to non lawyers, legislative history is the collection of all drafts, written statements, debates, etc.,, taken as a whole) it becomes abundantly clear that the intent of the framers of our Constitution was that the Second Amendment was meant to facilitate the maintenance of “a well regulated Militia.”

If I may paraphrase the Second Amendment, it says that your right to bear arms is sacrosanct as long as you are part of a “well regulated Militia.” So if you want to bear arms freely, I believe (with some knowledge of Constitutional law) that you should join a well “regulated” Militia or the National Guard.

I fail to understand why noted legal scholars of Originalism, such as Antonin Scalia, cannot see this.

Phil