Wry Catcher
Diamond Member
- Banned
- #301
And that is how every Justice of the Supreme Court saw the 2nd amendment until Scalia.
"The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic since it offers a strong moral check against the usurpation and arbitrary power of rulers and will generally even if these are successful the first instance enable the people to resist and triumph over them."
Chief Justice Joseph Story (appointed by founding father James Madison, second president of the United States)
and not binding law since our courts don't make rulings where there is no "case and controversy". Story's intent was also to support a strong federal government and show why it was much better than the articles of confederation. It should be noted that at the time story wrote, you'll find we had no standing army. all there were... were militias. that is why the 2nd is very clear that it applies to "Well regulated milita" and not to yahoo's with guns who want to fight off the government.
and if guns were to fight off "rulers", the only crime set forth in the constitution wouldn't be treason.
until scalia, the 2nd was never believed to be an individual right. in fact, chief justice warren laughed his butt off when such a thing was suggested.
fwiw, I don't believe he ever authored a 2nd amendment case, but his opinion when asked was that the representation of the 2nd as an individual right, and not the right of a well-regulated militia, was a fraud.
you might also want to read this.
How the NRA Rewrote the Second Amendment
First, as far as I'm concerned, the NRA is left of center on gun rights.
Story gave an opinion consistent with the founding fathers intent. As per your other allegation, it is equally false:
“The absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights are declared to be natural, inherent, and unalienable.” Atchison & N. R. Co. v. Baty, 6 Neb. 37, 40, 29 Am. Rep. 356 (1877)
Another court ruling went further in their ruling:
“By the "absolute rights" of individuals is meant those which are so in their primary and strictest sense, such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it. The rights of personal security, of personal liberty, and private property do not depend upon the Constitution for their existence. They existed before the Constitution was made, or the government was organized. These are what are termed the "absolute rights" of individuals, which belong to them independently of all government, and which all governments which derive their power from the consent of the governed were instituted to protect.” People v. Berberrich (N. Y.) 20 Barb. 224, 229; McCartee v. Orphan Asylum Soc. (N. Y.) 9 Cow. 437, 511, 513, 18 Am. Dec. 516; People v. Toynbee (N. Y.) 2 Parker, Cr. R. 329, 369, 370 (quoting 1 Bl. Comm. 123) -
“Men are endowed by their Creator with certain unalienable rights,-'life, liberty, and the pursuit of happiness;'and to 'secure,'not grant or create, these rights, governments are instituted. That property which a man has honestly acquired he retains full control of, subject to these limitations: First, that he shall not use it to his neighbor's injury, and that does not mean that he must use it for his neighbor's benefit; second, that if the devotes it to a public use, he gives to the public a right to control that use; and third, that whenever the public needs require, the public may take it upon payment of due compensation.” BUDD v. PEOPLE OF STATE OF NEW YORK, 143 U.S. 517 (1892)
So, the government did not create those rights NOR do they grant them. Your unalienable Rights do not depend upon the government for their existence. The earliest court decisions confirmed this principle. Let me use the Right to keep and bear Arms as an example. The right to keep and bear Arms is an extension of your Liberty AND the Right to Life. Let’s view your Rights in light of court decisions:
According to Wikipedia:
"The first state court decision resulting from the "right to bear arms" issue was Bliss v. Commonwealth (1822). The court held that "the right of citizens to bear arms in defense of themselves and the State must be preserved entire, ..." "This holding was unique because it stated that the right to bear arms is absolute and unqualified."
Right to keep and bear arms in the United States - Wikipedia
In 1846 the Georgia Supreme Court ruled:
“The right of the people to bear arms shall not be infringed." The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!” Nunn v State 1 Ga. (1 Kel.) 243 (1846)
In Texas, their Supreme Court made the point unequivocally clear:
"The right of a citizen to bear arms in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the high powers delegated directly to the citizen, and is excepted out of the general powers of government. A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power."
-Cockrum v. State, 24 Tex. 394 (1859)
Then, the United States Supreme Court weighed in:
“The Government of the United States, although it is, within the scope of its powers, supreme and beyond the States, can neither grant nor secure to its citizens rights or privileges which are not expressly or by implication placed under its jurisdiction. All that cannot be so granted or secured are left to the exclusive protection of the States.
..The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. United States v. Cruikshank 92 US 542 (1875)
So, once again, The Right to keep and bear Arms is a Right, but it was not granted by the Constitution, neither is it dependent upon the Constitution for its existence. It is above the law and the lawmaking power and it is absolute. By any and all definitions, the Right to keep and bear Arms is a personal Liberty and it is an extension of your Right to Life. That is another way of saying that the Right is an unalienable Right.
Sorry, but the earliest Court decisions don't uphold your misunderstanding of the law. Neither did the founders, who wrote and ratified the Constitution support your view.
Even in the Miller decision (1939) by the United States Supreme Court, the Court the only reason the Justices had a problem with Miller is due to the fact that his privately held shotgun had a short barrel and the Court said it was not a weapon normally used by a militia.
The most recent case decided by the Supreme Court was MacDonald v. City of Chicago. According to Wikipedia:
"... in McDonald v. City of Chicago, 561 U.S. ___, ___, 130 S. Ct. 3020, 3050 (2010), the Supreme Court held that the second amendment right recognized in Heller is fully applicable to the states through the due process clause of the fourteenth amendment. In so holding, the Court reiterated that “the Second Amendment protects the right to keep and bear arms for the purpose of self-defense” (id. at ___, 130 S. Ct. at 3026); that “individual self-defense is ‘the central component’ of the Second Amendment right” (emphasis in original) (id. at ___, 130 S. Ct. at 3036 (quoting Heller, 554 U.S. at 599)); and that “elf-defense is a basic right, recognized by many legal systems from ancient times to the present day” (id. at ___, 130 S. Ct. at 3036)."
McDonald v. City of Chicago - Wikipedia
There are a host of things anti-gunners conveniently avoid and one was a state court decision (from a state supreme court) in the Bliss decision in their interpretation of the Second Amendment. The Bliss decision said the Second Amendment was absolute and unqualified (cited above) Chief Justice Story was alive when that ruling was handed down. IF the people had felt the Constitution did not mean what the Bliss court ruled, they could easily have appealed the decision to the federal courts. Obviously they didn't... and nobody appealed the rulings in places like Texas and Georgia (or if they did, the Court would not even entertain hearing such challenges.) So, if you have state court rulings and no federal challenges, those decisions are binding in their home state AND persuasive authority in other states; therefore, lawyers might not advise a challenge since the law is pretty cut and dried.
The only things that are different today is that the American Bar Association is the most liberal organization in the United States and, for the most part, if you aren't a member in good standing, you probably won't be picked to be a judge. So, today it's liberals trying to reinvent the wheel and overturn standing legal precedents set by the Supreme Court itself (aka legislating from the bench.) Outside of that, the earliest courts, the founding fathers, and we, the people disagreed - across the board - with these liberal interpretations that don't hold water when closely examined.
Read Scalia's opinion in Heller and get back to us.
I can quote from memory much of Scalia's "opinion."
Now, had you read the posts in this thread before responding, I said two things:
1) There is good and bad in Scalia's opinion AND
2) America is being governed by two separate and distinct governments - the legal (de jure) / lawful constitutional Republic and an illegal / unconstitutional Federal - Legislative Democracy owned and controlled by elite multinational corporations.
As such, the Heller decision acknowledges that you have a Right to keep and bear Arms and that is an individual Right - unconnected to service in a militia. That is part of the HOLDING of the case.
Since you're being a smart ass with me, I know you don't understand court decisions. A lot of what you read in court opinions is opinions, B.S. / aka "dicta." The bottom line to Heller is what I quoted - the HOLDING, what the law is outside all the other B.S.
ANOTHER thing that the Heller decision says has nothing to do with the facts of this thread, but we can all agree, I know what you're crowing about. So, let's quote it:
"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose...For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues."
That has zip, zero, nada to do with obtaining a firearm, carrying it, owning it or having a Right to the firearm unconnected to service in a militia. Go back to the United States Supreme Court holding in the 1939 Miller decision. The only reason Miller had a problem is due to the fact that the Court erroneously thought a sawed off shotgun wasn't a normal arm carried by a militia. Magazine fed weapons today constitute weapons "in common use" as acknowledged in the Heller decision when citing Miller in Scalia's ruling.
My point is quite simple, Scalia's comment above proved - until overruled in the future - that the 2nd A. is not sacrosanct and the right to infringe (arms) is legally acceptable.
