Archive for the ‘Gun Laws’ Category

Originalism and the Second Amendment   Leave a comment

This is all very simple since according to people who claim to believe in Originalism, “Constitutional interpretation should remain anchored in the original meaning of the Constitution’s text, which is the source of the Court’s authority and legitimacy.” Using that definition:

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.

The text of the Second Amendment begins with “A well regulated Militia” which is “necessary to the security of a free State“. The language of the text does not mention Self-defence, hunting, target practise, or any other non-militia uses. It is a well established rule or statutory interpretation that inclusio unius est exclusio alterius  which means  that ‘including one excludes another’. The example given where I found this was the statement ‘no dogs allowed’ under this rule would mean that panthers were allowed.

Likewise, the fact that the Militia is specifically referenced would lead one to conclude that this text addresses the militia, but does not cover uses other than the militia.

Likewise, a search of the US Constitution shows that it addresses the militia, but personal defence is not addressed. Likewise, the preamble of the text makes it clear that one of the reasons for adopting the Constitution is to deal with matters of the common defence. However, there are people who claim to follow originalism who are willing to ignore the actual text of the Constitution to advance their beliefs.

The actual wording of the Constitution makes it clear that the Militia and Common defence are covered, but personal uses of weapons aren’t.  I am not going to get into the grammar of the Second Amendment since that isn’t really germane if one is going solely upon the text. Anyway, Dennis Baron addresses that issue in his amicus brief to the Heller decision and this essay where he demonstrates that the founders would indeed have seen this as only relating to the militia.

Reading the Second Amendment as a statement in which every word counts follows from the opinion articulated by Chief Justice John Marshall: “It cannot be presumed that any clause in the constitution is intended to be without effect” (Marbury v. Madison, 1803). But even without that landmark ruling, it would have been clear to 18 th -century readers that the first part of the Second Amendment was bound to the second part in a cause-and- effect relationship, that the right to bear arms was tied by the framers directly to the need for a well-regulated militia.

The Second Amendment was pretty much considered settled case law which was thrown into disarray by Heller and McDonald. US v. Cruikshank, 92 U.S. 542 (1875) wasn’t very helpful since it addressed private action, but Presser v. Illinois, 116 U.S. 252 (1886) and US v. Miller, 307 U.S. 174 (1939) both made it clear that the Second Amendment related to the Militia. Miller is usually not properly represented in recent “Second Amendment Scholarship” and totally ignored in the Heller and McDonald decisions because it is “not helpful”.

Indeed, it is not helpful to the recent decisions which were ultra vires because they amended the Constitution to add a new meaning to the Second Amendment, as this essay demonstrated. I would also add that Justice William O. Douglas addressed Miller and glossed it in his dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972) , which somehow is omitted in lists of SCOTUS cases mentioning the Second Amendment. Which is too bad since Justice Douglas was a member of the Supreme Court when Miller was decided, which makes him a very good source for how that case should be read.

Justice Douglas pointed out that in Second Amendment jurisprudence:

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”
“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia – civilians primarily, soldiers on occasion.” Id., at 178-179.

The Heller and McDonald decisions are examples of Judges failing to follow the rule of law, precedent, and their claimed theory of judicial interpretation. As I pointed out, those two decisions are ultra vires and should be ignored, which is easy since they are incredibly limited in their scope. But even then, some daring justice should show that the emperor has no clothes in these decisions.

Anyway, one doesn’t need to go far if you believe that the text of the Constitution is determining in how to interpret the Second Amendment that it only applies to the militia. It is quite obvious that the Second Amendment relates to the militia from the text. But the Heller and McDonald decisions made it clear that the text was optional, which means that Originalism is a nonsensical school of constitutional interpretation.

Gun Control Irony

Yeah, yeah. I try not to post this stuff on my blog, but this one is pretty important.  It was posted on Penigma, but I want my other post to get a few more views before this shows up again on that blog.

On the other hand, this needs to get out there.  That said:

It would be really ironic if instead of all the mass shootings the US has suffered (my condolences to the victims and their families of those), that the incident that caused people to realise the US needs gun control is an out of control suburban mother fighting over a notebook in a suburban Wal-Mart.

No, pulling a gun in this situation is not self-defence by any stretch of the imagination.  No one was fearing death or serious bodily injury which would justify even the threat of deadly force.

The woman pulling the gun is committing Felony Assault under Michigan law, Section 750.82.

The offense of Assault with a Deadly Weapon (ADW), is also known as Felonious Assault in Michigan. ADW is felony which is punishable by up to 4 years in prison. ADW is a crime which involves an assault with a deadly weapon (such as a gun or knife) or any other instrumentality which is fashioned or used as a weapon (car, club, bottle) which is capable of inflicting serious bodily injury or death. A criminal charge or conviction does not require actual physical contact or an injury. The offense is considered complete upon placing another in fear of an assault by a person who possesses a deadly weapon

Michigan law requires that the defendant “must have honestly and reasonably believed that he or she was in danger of being killed, seriously injured or sexually assaulted” in order to use deadly force.  Additionally, the defendant “may only use as much force as he or she thinks is necessary at the time to protect himself or herself.”

While a person may believe he or she had acted in self-defense, the police, prosecutor, judge and jury may disagree.

No shots need to be fired for her to be found guilty.

I’m not sure how the “pro-gun” crowd can defend this action.  I know responsible gun owners don’t, but it’s time they stepped up to the plate and admitted this shit happens too often with the relaxing of concealed carry law for it to be condoned.

It’s time to give Presser v Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886) yet another plug.

One of the many failings of the Heller-McDonald bullshit is that those cases were not cases of first impression, but that post is coming in the future.

See also:

What Does Brandishing Mean? And Why You Should Never Do It…

The Physics Of Mass Killing

Excellent article on how firearms technology enables mass killing which takes it beyond the “cosmetic features” talk.  I strongly suggest that anyone involved in this issue read this article.

The Physics Of Mass Killing.

One trivial criticism the P228 comes with a 13 round magazine, but accepts larger.

The Last Hand Gun On Earth

Take an old movie serial, add a new voice over by the Firesign Theatre and you have some very funny stuff.  In this case, the gun loon’s nightmare: Big Brother’s henchmen come for the last handgun on earth.

“To think people used to sleep with these things under their pillows.”

Prof. Simon Chapman’s Over Our Dead Bodies: Port Arthur and the Fight for Gun Control – Australia’s last gun massacre is now a free E-book

Prof. Simon Chapman’s Over Our Dead Bodies: Port Arthur and the Fight for Gun Control – Australia’s last gun massacre is now a free E-book and available at the following link:

http://bit.ly/YZtHQ2

I strongly suggest that anyone who is involved in the US gun violence/gun control movement read this book.  Australia’s political climate surrounding this issue at the time of the Port Arthur Massacre was eerily similar to that of the US, yet the Australians were able to cut through the non-sense and enact serious and effective gun control laws.

This is a valuable lesson for people who want to see similar laws in the US.

This book is really about the workings of the media, the use of lobbying, and the skills of advocacy. So pick a day when you are tired of dealing with the aftermath of ignored public health issues and read this ripping yarn, arm yourself with the tools it offers, and be ready to go into battle.

Please sign this petition–thank you.

https://petitions.whitehouse.gov/petition/require-mandatory-liability-insurance-be-carried-every-gun-owner-every-firearm-they-own-lease-or-use/8BghF8j2?utm_source=wh.gov&utm_medium=shorturl&utm_campaign=shorturl

require mandatory liability insurance be carried by every gun owner for every firearm they own, lease, or use. Once the cost of the liability gets involved, change will happen. Require gun insurance just like car insurance!

Less than a day since I did my last post…

And there is yet another mass shooting in the US.  ‘Seven killed’ in Wisconsin Sikh temple shooting!

Maybe gun control won’t stop mass killings, but not having gun control definitely doesn’t stop them!  In fact, looking at the past 230 odd years of the US being an indepndent country, we have seen that it is a highly violent and blood thirsty country.

WhoWhatWhy has an interesting piece about mass shootings:

One of the most striking things about shooting incidents in America…is how common they are. Another striking thing is how often the media fails to note the previous point, or to explore what that means—or what might be done about it.

Late last night, a gunman walked into a movie theater in a Denver suburb, killed 12 and injured 50. Two days earlier a gunman opened fire outside a bar in Tuscaloosa, Alabama in an incident in which at least 17 were hurt. These were not really so exceptional. Every year, about 100,000 Americans are victims of gun violence, and every week, people calmly enter our schools, our workplaces, our leisure gathering spots and open fire on innocent bystanders.

Whenever we tweet or post about these, often the only people we hear from are those who say we need more guns not less. “If I had been there with my gun….” The problem, of course, is the public at large is being asked to arm everyone and trust that, while the rest of us cower, “the right people” will quickly dispatch “the wrong people” in the modern equivalent of the Shootout at the OK Corral. No mention of whether the teacher is supposed to be armed…when a nut walks into a preschool and starts firing away.

Given that there have been 125 Mass Killings since Columbine, you think some serious solutions would be mentioned, yet it seems that there is the consistent response of inaction, or worse, the loosening of restrictions which make it easier for these incidents to happen.

Unfortunately, a realistic discussion of this aspect of US life never happens while the bodycount keeps rising.  Instead, we keep hearing that the US needs more guns, but that is the cause of the problem.