Supreme Court: Gun Rights Prevail

By Randy Wakeman


For twenty-eight years law-abiding citizens in Chicago have lived in the shadow of ignorance, and that Richie "the Dark Prince" has turned a blind eye to his city, one of the murder capitals of the world. As an Illinois resident, it is troubling that the "Police Power" has been largely unrestrained. Illinois has seemingly trashed its own constitution: http://www.chuckhawks.com/illinois_police_state.htm. What is likely coming will be a "tax on a right," both invasive and unduly burdensome to the extent that the Dark Prince can make it. All the while, taxing and burdening the only people that can be so taxed and so burdened . . . those inclined to follow the law. It's going to go on for a long time. Yet, the U.S. Supreme Court held that the right of an individual to keep and bear arms protected by the Second Amendment to the United States Constitution is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states.

Hardly just the right to own a handgun in your home, the 2nd Amendment now affirmed as an individual right and enforced against the states, is quite unambiguously to "keep and bear." That means carry. Justice Thomas was wise to consider the privileges and immunities clause, used by the Supreme Court to deny the Bill of Rights to blacks in 1857. What the court said back then was stunning:

"It would give to persons of the negro race, . . . the right to enter every other State whenever they pleased, . . . the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. "

It is just beginning. The Dred Scott case was wrongly decided and the basic privileges of citizenship were well-known, and clearly discussed by the court. "Keep and carry arms wherever they went" is an old, traditional, well-grounded part of being a free man and a citizen.

The court claims the rule of law is tethered to precedent and history. In a few days, we will again be celebrating the most important historical American document ever created on July 4th. Liberty isn't a new concept; it has long been considered and referred to as a self-evident truth. Whether 1776, or much later as in Dred Scott and countless other citations, the notion that a free man, an American citizen, can travel freely between the United States without permission, passports, or papers, can speak freely in public or private, and can freely defend himself is profoundly clear.

There was never any dissent about free travel, speech, or carrying arms wherever you went to a free man and citizen of the United States in Dred Scott. Quite the contrary, the only way these obvious freedoms could possibly be denied at that time was to make someone less than a full citizen. That's essentially what they did, ruling that Scott was not and could not be a citizen and therefore did not have the protection of the Constitution afforded all full citizens. The Slaughter-House cases muted "privileges or immunities"-- and though perhaps incorrectly, the Court was loathe to revisit that after all this time, though Justice Thomas opened the door to it.

The court is loathe to break precedent. Indeed, since the founding of our country the right to keep and bear arms was widely acknowledged as a natural right. Congress apparently felt the same, as nothing was legislated until 1934, the NFA. The NFA was a response to organized crime in general and the St. Valentine's Day Massacre specifically. Contrary to what many still think, it didn't ban fully automatic weapons-- it just became a tax on them of $200. A lot of money in 1934.

The argument of the United States in the Miller case was, in part, that the NFA was a tax and was under the jurisdiction of the Treasury Dept.'s "Misc. Tax Unit" (there was no BATF) and that since the sawed-off shotgun in the case traveled across state lines, it was fair game by its use in interstate commerce.

But. The "but" is that the Miller case was never fully decided, it was remanded back to the lower courts. Miller was dead before the decision was made, and Layton copped a plea, so there was no further proceedings. The finding in the Miller case was in itself inexplicable: that a short-barreled shotgun was not a military weapon and was never used by any militia, so deserved no protection. The statement was made that the 2nd Amendment protected only the ownership of military weapons and a short-barreled shotgun wasn't one of them. It would not be possible to come to that conclusion understanding that the United States used 30,000 or so short-barreled shotguns in WWI, the popular trench gun. Neither Miller, Layton, or their attorneys appeared before the Supreme Court-- apparently due to financial reasons. Proper oral arguments were not made, as there were none.

Moreover, the narrow finding of Miller did not explore fully the notion of a personal right against a collective right. The holding was, "The National Firearms Act — as applied to transporting in interstate commerce a 12-gauge shotgun with a barrel less than 18 inches long, without having registered it and without having in his possession a stamp-affixed written order for it — was not unconstitutional as an invasion of the reserved powers of the States and did not violate the Second Amendment of the United States Constitution." There is more debate surrounding this right now, of course, but this was a very narrow application of the 2nd Amendment, saying basically that the NFA did not violate the 2nd Amendment, with the parent case never fully argued nor ever fully decided.

There never has been much SCOTUS precedent to go by as the Supreme Court has largely declined to hear 2nd Amendment cases until Heller. Miller was not at all an exhaustive exploration of the 2nd Amendment itself. Since 1791 when the Bill of Rights was ratified, the SCOTUS application of it has been thin to non-existent.

Heller did not reverse or invalidate Miller, nor did Heller invalidate the NFA. There was no great breaking of precedent or reversal of prior SCOTUS decisions. That is not at all the situation today. Heller makes it an individual right, clearly. McDonald v. Chicago does not reverse Heller or change Heller at all; it is consistent with Heller and incorporates the 2nd Amendment against the States. A reversal is virtually impossible. It is now a matter of settled law.

What is not at all settled is to what extent "reasonable restrictions" may be and may not be. I wouldn't think too many people think the 2nd Amendment means we should give Charles Manson a pistol, or that we can all "keep and bear" arms in divorce court, or that Judge Judy has to allow Glocks on her TV show. Nevertheless, the law of the land is that free men and women regardless of race, all citizens of the United States in good standing now have the codified individual right to keep and bear arms and the guarantee of the Court is that it is incorporated against the States as a fundamental, important right that can no longer be denied citizens of the United States nor unreasonably infringed upon.

All in all, it is about time. For the last twenty-eight years, Grandpa could not legally own or use a handgun in his Chicago home to protect himself or Grandma. Twenty-eight years of blindness was long enough. It seems many people are unaware than you cannot simply appeal to the Supreme Court of the United States. The Judiciary Act of 1891 created the Circuit Courts of Appeals. The Judiciary Act of 1925 (a.k.a. Certiorari Act) made much of the work load of the Supreme Court discretionary. Indeed, the Supreme Court rarely grants Cert, electing to hear only a little more than 1% of its cert petitions. A Supreme Court case today is a comparatively rare event.

The idea of the other branches of government attempting to tamper with the court is not a new one. FDR tried to pack the court, allowing additional justices up to a maximum of 15, ostensibly populating the court with those he could count on to further is own agenda. FDR failed; a good thing.

"During the past half-century the balance of power between the three great branches of the federal government has been tipped out of balance by the courts in direct contradiction of the high purposes of the framers of the Constitution. It is my purpose to restore that balance. You who know me will accept my solemn assurance that in a world in which democracy is under attack, I seek to make American democracy succeed." -FDR, 1937 Fireside Chat.

Many presidents have sought to further their own power as have many congresses. All of this is nothing at all new, just old wine in new bottles. The Supreme Court is no substitute for electing representatives true to the citizen's core values and beliefs. It took twenty-eight years for the SCOTUS to address Chicago's draconian handgun ban. Ask yourself and your neighbors, if you both always just happen to have an extra twenty-eight years to wait?

There is a certain irony to this, going back to the Miller case. In the Miller case, military weapons were the weapons described as protected weapons under the Second Amendment, the short-barreled shotgun discounted as it was not a military weapon. The Thompson sub-machine gun, designed in 1919, was prevalent as a military weapon at the time the NFA was enacted. Seemingly, the “Tommy Gun” used by the military from prior to WWII to Korea to Vietnam would have been given some protection by the Second Amendment, as would all so-called assault rifles or military style rifles that Congress had no problem banning. Indeed, the notion of the collective right of any man capable of joining a militia to provide for the common defense would be entitled to keep and bear military weapons, so-called assault rifles, and similar, but not sporting weapons not typically used by military operations. Congress spit on this area of the Second Amendment long ago.

Privileges and immunities of a United States citizen and “rights” have long been synonyms. Again, the only way a woman or a black man or anyone else could be denied these fundamental rights was by making them less than a full citizen, or unable to be a citizen at all in the case of Dred Scott. Our government and the Supreme Court did just that. Our Constitution could hardly be considered perfected when what it did originally was offer protections and considerations to men only, white men only, and specifically white men that owned property only.

I am gratified by the Supreme Court's decision and am also heartened by Judge Thomas' fine effort and attention to his detail in his concurring opinion. It was Judge Thomas alone supported overturning the Slaughter-House and Cruikshank decisions and it was Judge Thomas alone who got it right.

For the America people, for us to get it right we must strive to never again elect officials that deny “the blessings of liberty for ourselves and our posterity” that the preamble to the Constitution tells us it was was written in an attempt to secure. It looks like we have a lot of work to do in that regard.




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Copyright 2010 by Randy Wakeman. All rights reserved.



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