Archive for the ‘guns’ Category

The Ultimate Slam Dunk Argument Against the Individual Right Interpretation of the Second Amendment.

One thing that Heller and McDonald demonstrated was that it didn’t really care about the Second Amendment within the Constitutional Context. That means that those two cases are an absurdity in “Second Amendment Jurisprudence”. The absurdity starts with its minimalisation of what Heller described as the “preferatory clause”. The reason for the nonsensical nature of the “individual right” interpretation is that it takes the Second Amendment out of legislative and historic context.

But one need not go beyond the four corners of the document to show this is an absurd interpretation of the Second Amendment since it is presumed that a legal document will be interpreted so as to be internally consistent. A particular section of the document shall not be divorced from the rest of the act. Thus, if the Constitution mentions certain goals or subjects in the preamble, it must be considered within the terms of those goals and subjects.

There are two versions of the Amendment and I will use this one for the purposes of the argument I will be making for the purpose of clarity:

“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.”

That means the phrase “A well regulated militia being necessary to the security of a free state” was pretty much ignored or discounted in Scalia’s analysis. This is despite the rule of constitutional interpretation that “It cannot be presumed that any clause in the Constitution is intended to be without effect.” The individual right interpretation means that not only is the “preferatory clause” mere surplusage, entirely without meaning, but so is the rest of the text

Of course, the “Individual right” theory also neglects the preamble, which most people seem to stop reading after the first three words:

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

I would assert that both the preamble of the Constitution and the “preferatory clause” are important to the analysis of the Second Amendment within the proper constitutional context. That is because the document needs to be read as a whole. Doing that it becomes clear that one of the purposes of the US Constitution is to address matters of “the common defence”.

From Plato’s Laws through common law and until modern legal systems, preambles to constitutions have played an important role in law and policy making. The preamble to the United States Constitution has become a legend. The phrase “We the people of the United States” and the remaining forty-five words of the preamble are the most well-known part of the Constitution, and the section that has had the greatest effect on the constitutions of other countries. And yet, the preamble remains a neglected subject in the study of American constitutional theory and receives scant attention in the literature. This is a shame since a preamble is the part of the constitution that best reflects the constitutional intentions of its drafters.

The interpretive role of preambles is rooted in the common law tradition. Edward Coke asserted that preambles to an act of parliament are a “good mean to find out the meaning of the statute” and “the key to open understanding thereof”, they are “the key to the statute and the key to the makers.” William Blackstone referred to preambles as intended “to help the construction of an act of parliament.” Blackstone noted that whenever the statute is dubious, “the proem, or preamble, is often called in to help the construction of an act of parliament.” However, in a case of conflict between the preamble and the body of the act, the body of the act prevails. This is still considered good law in common law states. Some have a specific clause indicating the significant role of preambles in statutory interpretation.

The preamble may not be legally binding, but it is key to understanding the rest of the document and should be given weight in any constitutional analysis. Any interpretation that runs contrary to these principles is questionable. Anything which assumes something which is not covered by the main text must be suspect, which the individual rights interpretation does in spades.

This takes us to two concepts of statutory interpretation: (1) only items which are specifically mentioned are addressed within a law. (2) items which are not specifically mentioned are not covered by the statute.

Which takes us to Article I, Section 8, Clause 16, which gives Congress the power:

“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”

Note that Congress is given the power to ARM the militia. Only Congress has this power under the Constitution. This is where the individual rights theory provides the usual misquotations removed from their context, which in the case of the Patrick Henry “Let everyman be armed quote” is tragic since it is clear that Henry was concerned with the above section of the Constitution, not a personal right to arms, when one reads it in context.

I really don’t want to get too much into how this one sentence has been mangled and removed from constitutional context in the attempt to create a right which does not exist. The grammar is handled in this article: Dennis Baron, Guns and Grammar: The Linguistics of the Second Amendment. I will say that Prof. Baron would give the “preferatory” clause far more weight than it was given in the Heller decision:

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 18th-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.

If you wish to go outside the Constitution, there are many more problems with the Individual right interpretation. In fact, both the Heller and McDonald decisions were exercises in sophistry which removed the interpretation from an “originalist” and “constitutionalist” context and placed them into pure fantasy. If anything, the Heller and McDonald decisions are unconstitutional exercises of power by judicial amendment of the constitution. McDonald even more so since it somehow neglected Article I, Section 8, Clause 16 and created a right which was present in state laws in contrast to its non-existence in the US Constitution.

I am truly disappointed by the praise of the emperor’s new clothes in McDonald v Chicago by the justices willingness to separate the Second Amendment from Constitutional context by even countenancing that it had nothing to do with Article I, Section 8, Clause 16. How does Congress’ power “incorporate” to the States without an amendment to the Constitution? McDonald can only be described as silly buggers and not really precedent.

State v. Buzzard, 4 Ark. (2 Pike) 18 (1842), puts the absurdity of the individual right assertion:

However captivating such arguments may appear upon a merely casual or superficial view of the subject, they are believed to be specious, and to rest upon premises at variance with all the fundamental principles upon which the government is based; and that, upon a more mature and careful investigation, as to the object for which the right was retained their fallacy becomes evident. The dangers to be apprehended from the existence and exercise of such right, not only to social order, domestic tranquillity and the upright and independent administration of the government, but also to the established institutions of the country, appears so obvious as to induce the belief that they are present to every intelligent mind, and to render their statement here unnecessary. [1]

The revisionist theory that the Second Amendment somehow applies to a context outside the common defence is beautifully destroyed since it does not withstand scrutiny within the four corners of the US Constitution.

It is even more devastated if we are going to go outside the document since we need to have the “scholars” explain how:

  1.  The concept of self-defence did not allow for the use of deadly force as a first option when the Constitution was written.  Deadly force at that time was a LAST option. There was a duty to retreat. Deadly force could only be used if there was no lesser alternative and all other options had been exhausted.  You had to have your back to the wall to be able to kill someone.
    –carrying a weapon would create a presumption that you intended to do harm.
  2.  Where are the other versions of “gun rights” in Common Law nations?
  3. The issue of civilian control of the military, which fear of standing armies is a common thread in English political thought.  It was mentioned in the debates in relation to this Amendment, whereas personal defence was next to nonexistent.
  4. regulation of private arms has always been a part of the common law.
  5. When primary source material is read in its complete form, it highlights the above issues and the lack of concern with a right to own a weapon outside the context of the common defence.
  6. Why the US Constitution would concern itself with matters of “personal defence”, especially in light of point (1) above?
  7. Why state constitutional provisions explicitly mention this right, but it is not mentioned in the US Constitution.

There are far too many flaws in the Individual Right interpretation of the Second Amendment when one looks at it critically. There are even more flaws in the “precedent” set by Heller-McDonald despite its “friendliness” to firearms regulation. These are dangerous decisions to be left in the common law cannon.

It is a shame that Heller and McDonald have been allowed to create mischief in the US legal system.

I will not even bother readdressing the absurdity of the associated insurrection theory of the Second Amendment since it is so far from the Constitutional contexts as to be laughable. The fact that so many people are willing to accept it in their ignorance is astounding.

[1] Compare Buzzard to the part of Presser v Illinois,  116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886), which says:

Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.

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Tell me again how guns equal freedom?

Or “Political Power comes from the barrel of a gun”–Mao Tse Tung

political power
AK47 freedomTaiwan

Posted 14/02/2016 by lacithedog in guns, Uncategorized

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.

More on hoplophobia

It was made up by Jeff Cooper who gave us the four rules of gun safety and the combat mindset. So, is he saying that we shouldn’t be concerned if we see someone carrying a firearm? I think this goes to point of VPC’s study Unintended Consequences where Pro-Handgun Experts Prove That Handguns Are a Dangerous Choice for Self-defence. In other words, the candid voices of pro-handgun experts and exposes through expert opinion the gun industry’s lies about the illusory benefits of handguns for self-defence.

First off, this “condition is not recognised in the Diagnostic and Statistical Manual of Mental Disorders (AKA DSM). It is probably unlikely to be recognised as a condition as well, despite the efforts of the people who like to use this terms efforts to get it in there. This would be due to the fact that most of the medical community is aware that the risk of harm from pistols and revolvers that is demonstrated year after year in America’s unparalleled handgun death and injury rates.

Irrational Fear? This term came from Jeff Cooper the person who gave us the four rules of gun safety and the colour coded combat mindset. The first two rules of gun safety are:

  1. All guns are always loaded. Even if they are not, treat them as if they are.
  2. Never let the muzzle cover anything you are not willing to destroy. (For those who insist that this particular gun is unloaded, see Rule 1.)

Rule number 2 is the most important for this critique since it concedes that guns are destructive devices. Unfortunately, the fact that guns when used properly can cause serious injury or death is one of the things the folk who tend to use this term would prefer to neglect—in particular, the person who created the term.

Is he saying that we see someone we don’t know carrying a firearm and not see the possibility of a threat? Is he saying that guns don’t deserve at least a shred of respect for their capacity to cause injury or death?

Spot the inconsistency!

Before I leave this, I should say that no one has addressed Cooper’s inconsistencies in that he has his little colour coded combat mindset and points out that guns are indeed lethal, or at least destructive with his four rules of gun safety.

YET…

He would call people who are concerned about those who would carry firearm in a civilian setting hoplophobes.

Instead he wants people to walk around in condition white about someone who is carrying a deadly weapon:

 “Unaware and unprepared. If attacked in Condition White, the only thing that may save you is the inadequacy or ineptitude of your attacker. When confronted by something nasty, your reaction will probably be “Oh my God! This can’t be happening to me.”

But the ultimate absurdity is that Cooper taught COMBAT firearms use.  In fact, the colour coded mindset was expounded upon in a book called Principles of Personal Defense and refers to the states of awareness in combat, or the combat mindset

People who have served in the military, especially in combat arms and are quite used to the presence of weapons know the difference between war zones and civilian life. Being in the military is different from being in a civilian population. And that is a rational consideration, not mental illness. The civilian environment does not have life threatening danger around every corner. It is not a combat zone.

Civilian life is not combat. You would have thought a battle hardened marine like Cooper would have caught on to that fact. One usually does not encounter weapons in a Civil Society which is at peace.

So,which is it, are you tryiing to create a society where it is considered normal to be in a combat state of awareness?

Or do you live in a society where there is peace and laws?