Category Archives: Second Amendment

The Sea Lawyers Are at it, Again

A 2016 article was recently posted by a friend who opposes personal ownership of firearms.

What America’s gun fanatics won’t tell you” <- link will take you to opinion article.

The title alone implies anyone that wants the ability to protect themselves and or their family with a firearm, must be a fanatic.

The right to speak freely, the right to protect your life or property, the right to not self-incriminate, the right of habeas corpus, were understood by those who authored this key document, as fundamental to keeping a democracy from being turned into tyranny of the masses or by a select powerful few. Human behavior is the same now as it was then, and they did their best to protect “inalienable rights.” See this article for further explanation of the alternate use of the words. Are our rights ‘inalienable’ or ‘unalienable’?

The author of the article misses two key things written in the second amendment, and the other not mentioned whatsoever; Hamilton was shot and died at the hands of Aaron Burr. Both men freely entered a pistol dual to “protect their honor”. Whatever misgivings Alexander Hamilton may have had about an individual’s right to bear arms didn’t change the course of his life or his demise.

As a bit more of a history lesson about Alexander Hamilton, he was a prominent centralized authority proponent. Among his many ideas, he proposed this at the Constitutional Convention; to have an elected President and elected Senators who would serve for life, contingent upon “good behavior” and subject to removal for corruption or abuse.

He secretly communicated with at that time, “enemies of the state” in order to further the push toward a more monarchistic form of government. Don’t believe me, then please allow the words of a contemporary to explain.

James Madison, known as the author of the Constitution, vehemently opposed at every opportunity Alexander Hamilton’s efforts to create a despotic central government. Madison once remarked that Hamilton had a hidden agenda “of the glories of a United States woven together by a system of tax collectors,” who would be ruthless in both their collection and punishment efforts. Madison authored the 2nd amendment, the right to keep and bear arms, specifically as an answer to Hamilton’s urge to create a national army which would enforce tax laws and subject the state citizens to the tyrannical rule of the central government. Hamilton dreamed of a large military to enforce the will of federal tax collectors, district attorneys, and judges on the populace, and to enforce unpopular laws.

So, let’s pick through that which was ignored in order for the author, Brett Arends, to create a false interpretation of the Second amendment.

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.” Note the comma, for those that don’t understand this basic usage, it’s use is to separate coordinated independent clauses. Perhaps that’s a misunderstood definition on language.

More modern legal arguments over the definition of those few words are, collective rights of government vs. individual rights. I refer you to a link that describes this in more detail –> Live Science

“The first ten amendments of the Constitution are collectively known as the Bill of Rights. It was formalized for the protection of natural rights of liberty and property.” “This bill is an important constituent of American Law as well as the government, and symbolizes the freedom and culture of the United States of America.” The Constitution was written to be a more concise and centralized view of government authority. It replaced the Articles of Confederation. At it’s core, it states these rights are not granted by government, but are inalienable rights of all citizens. This means the government was formed to protect the individual from tyranny of the state as well as foreign powers.

I’ll end this post with Alexander Hamilton’s own words, because he too understood the balance necessary to prevent tyranny.
“ .. if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little if at all inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.”

Hamilton delineates his vision not only of a free people bearing arms for the common defense, but also for the protection of liberty. It was intended by the framers of our Constitution that a free people be armed. Therefore it follows, those who wish the people disarmed also wish them enslaved by their own government.

Alexander_Hamilton_Aaron_Burr_dual_to_death_framed

Burr–Hamilton duel, from a painting by J. Mund

History has repeatedly shown, the rights & liberties of people are not preserved or protected solely by the pen, but through the power of the sword.

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Why & How Did We Get Here?

Within 24 hours of each other, two different young men turn their inner most hostile thoughts into reality. El Paso Texas, 21 people have died from wounds received by a 21 year old white male, using a firearm. Dayton Ohio, 9 people have died from a 24 year old white male who used a firearm to kill and wound. At each location there were more than two dozen people injured.

Reading the stories barely touches on the lives so tragically affected. An example, small children die, parents tried to shield their child from the shooter and died. The list goes on, and it’s truly horrible. In Dayton Ohio, Authorities said ____, of nearby Bellbrook, opened fire with a rifle early Sunday in the city’s Oregon District. Among the dead was his 22-year-old sister, Megan. At least 27 people were injured. BTW – I won’t name the shooters. I believe they’re not worth recognition. I want nothing about the specific individual to gain notoriety.

A 21-year-old white man from Allen, a suburb of Dallas about a 650-mile drive from El Paso, is in police custody. Authorities are looking at potentially bringing capital murder charges against him. He was captured shortly after the shooting.

In each instance we seem to have a common nexus. Each has been perpetrated by a white male under the age of 30. This was similar to the shooting, the week before in California, also committed by a white male under the age of 30 using a semi-automatic, magazine fed rifle. What’s going on with these white men, mostly between the ages of 20 to 30?

The victims haven’t had time to be released from the hospitals, or their families grieve, and we have immediate analysis. Some blame this on firearms, they want either a ban or some new law with greater restrictions on availability. Others take to the air waves, and claim it’s because of Trump. “Trump created an atmosphere of hatred among these young men”. Still, we had this senseless killing under Obama, and no one blames him.

An El Paso congresswoman says, “Trump is ‘not welcome’ in the city.” “The president has made my community and my people the enemy. He has told the country that we are people to be feared, people to be hated.” She elaborates further, “Hispanic people have become “dehumanized.”

The attack in El Paso, Texas, underscores the continued threat posed by domestic violent extremists and perpetrators of hate crimes. The FBI is supporting its state and local partners in Texas through investigative, intelligence, and technical assistance. The El Paso investigation is also being supported by the FBI’s Domestic Terrorism-Hate Crimes Fusion Cell. … The FBI remains concerned that U.S.-based domestic violent extremists could become inspired by these and previous high-profile attacks to engage in similar acts of violence.

The FBI asks the American public to report to law enforcement any suspicious activity that is observed either in person or online.

I read impassioned pleas to ban “assault rifles”. I see where others want to ban any weapon with a “high capacity”. It seems almost pointless to debate with people so over wrought with emotions. It does little good to point out the decade long assault weapons ban that expired, but did nothing to lower murderous violence. (Not my words, it was the official results finding) No gun-free zones have ever made schools or government facilities safer, despite the good intentions. All our schools are gun free or bomb free zones, yet we have had incidents where that didn’t stop the antagonists.

If the cure isn’t in some type of legislation, or appeal we seek in a supreme being, then what or how can we affect a positive change?

I think I have some of the answers, but people don’t want to hear them, because they aren’t quick and it requires serious change which involves almost all of us.

Let’s do an “IMAGINE” moment together, and look beyond the quick and not effective  methods. “In the US, prohibition lasted from the year 1920 until the year 1933. The ban on manufacture, sale as well as transportation of alcohol was stipulated under the 18th Amend of the US Constitution.”  “Finally, realizing that the prohibition was not serving its purpose, President Franklin Roosevelt signed a law, which was an amendment to the Volstead Act on 22nd March 1933. This act was called the Cullen Harrison Act and it allowed the manufacture as well as sale of alcohol.” 

Bans don’t change human behavior. Laws written to stop lawless behavior, are from the outset, doomed to failure. That’s why a ban on alcohol, drugs, or laws against murder, don’t seem to change the behavior of some people. So, what motivates people to commit mass murder? People want solutions, and for the most part don’t care what it takes, because as of Sunday, which was the 216th day of the year, there have been 251 mass shootings in the U.S. in 2019. None of them that I know of have been by Muslims, or radical immigrants.

In just one minute, police say the Dayton shooter opened fire and killed his sister and several other victims. The Oregon District is dense with bars and cafes, but before he could get into any establishments, he was quickly killed by nearby police within one minute of the first shot, police said.

A former fellow high school student, Spencer Brickler told CNN he and his sister were on the hit list, and remembered the shooter was once escorted off a bus by police officers over the threats. He was reportedly suspended in high school for creating a “hit-list” that caused a lockdown after it was scribbled on a bathroom wall.

In high school, the Dayton shooter compiled a list which was separated into two columns: a “kill list” for boys and a “rape list” for girls.  A third person, who also asked not to be named for privacy reasons, told CNN that ______ sent messages about the list to one of his classmates, who told her mother. Her mother then notified the police, who came to the school and interviewed people on the list individually in the school’s office.

Some of the names were female students who, turned him down for dates. She said _____ often simulated shooting other students and threatened to kill himself and others on several occasions. “He loved to look at you and pretend to shoot with guns, guns with his hands.

A source told a CBS News senior investigative producer, the Texas suspect was considered “a troubled youth.” The El Paso suspect was charged Sunday with capital murder and was being held on no bond, on Sunday evening. The suspect has been cooperating with investigators.

About 20 minutes before the shooting started, a post on the online message board 8chan believed to be from the suspect laid out a dark vision of America overrun by Hispanic immigrants. The 2,300-word document, which police called a “manifesto,” was attached to a post that said, “I’m probably going to die today.” The El Paso shooter began his text by writing: “In general, I support the Christchurch shooter and his manifesto. This attack is a response to the Hispanic invasion of Texas. They are the instigators, not me. I am simply defending my country from cultural and ethnic replacement brought on by an invasion.

Besides the connection which many want to use, “assault type weapons”, or “high capacity weapons”, there are additional concerns that should be addressed. Obviously, we can’t say, “ban all white males” in the US from owning any potentially deadly firearms or even knives, but there are things which have been pointed out in the past. Can we continue to ignore these facts?

Millions of Americans own firearms in this country, and most are multiple capacity magazine fed firearms. There aren’t exacting numbers as to how many rifles are equipped with features that legislators, lobbyists, & activists point out as “assault weapons”, but they must be in the hundreds of thousands or well over a million. Why doesn’t that inform people, “it’s not the gun”, but the people behind it?

If indeed the perception of America is, it’s a gun culture, then why do we program our lives with so called heroes that use guns to solve problems? I’m suggesting we need to take a hard look at least 3 things:

  1. Movies which feature protagonists who carry and use weapons, to the exclusion of any real world solutions to problems. Our most popular celebrities have made a fortune featuring their use of violence, yet they turn around and tell us, we shouldn’t use or own guns. Graphic violence on Television and movies attracts an audience, and the entertainment industry thrives on it.
  2.  Violent video games, which we hear from those with a vested interest in them, “doesn’t affect our youth.” Really? We see body parts being damaged, and blood everywhere. This has to desensitize some of our troubled youth. How can this help minds that are already in need of help?
  3. We lack sufficient healthy resources for youth or for that matter adults, and we lack any really trained first line contacts with the public, who can assess and diffuse a situation that’s going wrong. Again, we answer violence with violence, instead of trying to prevent escalation.

I truly believe the answers to these recurring mass shootings, or for that matter, suicides, lay in further work with mental health. If outer space or the oceans are a mystery, and need further exploration, surely the mind and human mental health deserve at least as much, if not more attention.

The people who want a quick fix, or say, “SOMETHING MUST BE DONE“, but don’t demand mental health issues be addressed, are not going to gain any relief through passage of another set of laws. Those laws have failed us in our public schools, on the streets of Chicago, or for that matter, California. We need to address complex problems with more than simple solutions.

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  • NOTE Any time you see underscored / underlined words in my post, those are links to the articles from news sources. They will provide additional background to the topic.

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Is the 2nd Amendment outdated? Is it necessary?

A lot can be said, and a lot has been said about the interpretation of the 2nd amendment. It contains only 27 words but there’s probably as many or more interpretations.

Here’s the exact words:

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.

We have some people who argue the right to bear arms resides with those who are part of a militia. In other words “the people” is associated with some designated government entity, which even that can be interpreted in several ways.

For example, do we interpret the militia or the military as the only people who have a right to have firearms? Who and in what manner are they defined? It’s easy to understand who is in the military, but how about a militia? Is a militia the national guard, or perhaps another designated entity?

There’s a real problem with trying to narrow the right to bear arms to only those with power and influence. Who besides the military, can be included in this poorly defined group? Are those who serve in Homeland Security part of a militia? Does that also include the NSA, CIA, FBI, Secret Service, Treasury, IRS, BATF and organizations who we are unaware? You see this is a problem which people such as Former associate justice of the U.S. Supreme Court John Paul Stevens seem to ignore. They’re secure in their expansive authority and position, because they have personal security, which isn’t possible for “the people”.

John Paul Stevens, and other government authorities wield power, and have personal security, along with wealthier people, which most of us don’t have. The ideas he supports are further evidence of how distant they’ve become in a document designed for all people, not the exclusive domain of those elected and appointed. This is exactly the opposite of what the founders defined when they revolted and established a constitution, by, of, and for the people.

If that seems too obscure, let me do my best to explain my questioning of anyone who says, we must strictly interpret the 2nd Amendment to mean it’s only about a well regulated militia. Justice Stevens states it’s unambiguous. “When it was adopted, the country was concerned that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several states.

He goes on to say. “ .. I joined the Supreme Court in 1975, both state and federal judges accepted the Court’s unanimous decision in United States v. Miller as having established that the Second Amendment’s protection of the right to bear arms was possessed only by members of the militia and applied only to weapons used by the militia.

And in 1980, in a footnote to an opinion upholding a conviction for receipt of a firearm, the Court effectively affirmed Miller, writing: “[T]he Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia.’”

There you are. We have the words of those who support the government as the final arbitrator of what’s fair and right when it comes to our protection. It’s left to those in power within the government to define who or what’s a militia, and assume that’s any alphabet soup organization which they designate. Furthermore “the people” isn’t really about all of the people, as he interprets those 27 words. It’s only the militia that needs access to firearms for defense. We can just forget about defending ourselves from any thugs who enter our home with bats, knives or guns.

That’s just those frauds from the NRA” according to retired Chief Justice Warren Burger. “He described the National Rifle Association’s lobbying in support of an expansive interpretation of the Second Amendment in these terms:One of the greatest pieces of fraud, I repeat the word fraud, on the American public by special-interest groups that I have ever seen in my lifetime.”

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That’s the ruling elite’s definition, and the rest of us can accept whatever they think is adequate. I highlighted it because that’s where my litmus test for reasonable understanding of human rights, natural human rights, intersects the twisting of legal definitions to support their personal interpretation. I believe they not only misunderstood the framers of the Constitution, who were quite capable of expressing themselves, and wouldn’t agree with them.

What are the rights for private citizen to protect themselves? If the answer is, that’s the duty of the local police, or the military of the nation, then we have some real world problems. As a matter of fact, every police department states, they’re not obligated to protect you from harm. That’s been adjudicated many times in court. The reasons for that are apparent. The police are minutes away, when you may have seconds to live or die. If they can’t get to you in time, they can’t be sued for negligence because they failed to protect.

The “Bill of Rights”, according to the origination of the Constitution, were inalienable, self-defining, a type of “KEEP OFF THE GRASS” signs in support of the common person. The government didn’t issue these rights, the Bill of Rights, were natural rights to be preserved and protected. The key authors, as well as original participants at the Constitutional convention, carefully defined what was required to maintain a society which protects and serves the individual, not the government. They used purposeful language which placed these safe guards into the very foundation of a new country.

This country was and has been for more than two centuries, different because it established a rule of law that was separate from a king or a centralized, monopolistic hegemony.

Unfortunately for anti-individual rights advocates, the historical record refutes one of the best state vs private citizen arguments:

Pennsylvania kept that same clause in a 1790 state constitution revision as follows: “That the right of the citizens to bear arms in defense of themselves and the state shall not be questioned.” James Wilson, president of the convention which adopted that provision, a leading Federalist, and later Supreme Court Justice, explained it in a discussion of homicide “when it is necessary for the defence of one’s person or house.

He continued: it is the great natural law of self preservation, which, as we have seen, cannot be repealed, or superseded, or suspended by any human institution. This law, however, is expressly recognised in the constitution of Pennsylvania. “The right of the citizens to bear arms in the defence of themselves shall not be questioned.” This is one of our many renewals of the Saxon regulations.

Randy E. Barnett
Georgetown University Law Center

Those who deny that the original meaning of the Second Amendment protected an individual right to keep and bear arms on a par with the rights of freedom of speech, press and assembly no longer claim that the amendment refers only to a collective right of states to maintain their militias. Instead, they now claim that the right, although belonging to individuals, was conditioned on service in an organized militia. With the demise of organized militias, they contend, the individual lost any relevance to constitutional adjudication.

That’s really the crux of it. Do we as individuals, private citizens have a right to self-protection, not only from bodily harm, but also to prevent theft of property while it’s being removed? If you say no, then reap the whirlwind upon home invasion, uncontrolled theft, rape attacks, or random public violence.

Is our natural instinct to survive an abstract, legalistic argument? The finality of our own existence or self worth or that of our family controlled simply by historical government whim, and then adjudicated in court?

I suggest our natural, or god given rights as some would call them, are not handed out like government cheese to whomever they please. It’s unassailable to say you have the right to flight or fight. It’s part of our instinctive nature, and for someone with a robe, sitting at a high bench declares, you can’t own a firearm. You maybe can use your hands, maybe a knife, if it’s under 8 inches, and a stone, as long as the stone isn’t real heavy, and you didn’t pound them into unconsciousness.

I want to see the practical outcome of these laws of confiscation that have recently been enacted, and will continue to increase. No one with their own concern for personal welfare will obey. The outcome for a country as large and populated as densely, will only continue a downward spiral of deadly use of force by those who don’t obey any moral laws, legal or natural.

Final Thoughts

The United States of America is a nation borne from revolution against tyranny. That revolt could not have been successful had the American public not been armed with weapons at least equal to those used by the British military and its mercenaries that Americans had to face in battle. The rifles used by many Americans were actually longer ranging and more accurate, making them qualitatively superior to the muskets prevalent with British soldiers and mercenaries. This renders the historical references to the level of firearms are for hunting, mythical hearsay and outright public deception. To suggest the founders were not in favor of private ownership, and not obsolete, ineffective firearms is a fallacy, and supported by the modern ruling classes and powerful elite.

Let’s review some additional facts:

  • Firearm bans do not deny criminals access to firearms.
  • Public banning of firearms does not correlate with reduced crime rates.
  • Public ownership of firearms does not correlate with increased crime rates.
  • Laws that restrict the use of firearms in self defense only empowers one group or class, the criminal or psychologically deranged.
  • Gun homicide rates are down 49% since peaking in 1993. Personal note: I suspect this number will soon increase due to the newly added restrictions in states such as California, Illinois, and New York.

America is not the country with the highest rates of firearm deaths. Ten other countries hold that distinction, each with stricter gun control laws than the United States, with criminal firearm deaths per 100,000 people as follows:
1 Honduras 67.18
2 Venezuela 59.13
3 Swaziland 37.16
4 Guatemala 34.1
5 Jamaica 30.72
6 El Salvador 26.77
7 Colombia 25.94
8 Brazil 21.2
9 Panama 15.11
10 Uruguay 11.52
11 United States 10.54

The UK’s experience with gun bans also contradicts anti-gun propaganda. According to official Parliamentary records, firearm homicide rates actually rose after the handgun ban in England and Wales in January 1997. The only years in which the firearm homicide rate were actually lower than 1996 were 2008-2010. The overall trend for UK firearm homicides averaged an increase of 26%.

The UK does not have a comparable gun culture to the USA. Guns get into the hands of criminals, same as anywhere else. The vast majority of gun owners in the UK do not consider their firearm as something for personal protection nor for carrying in public.

This gets me to the final point. It’s not the gun that kills, it’s the individual, and as in anything we’ve historically witnessed in our country, the criminal element gets more powerful and wealthier through bans. It was that way for alcohol, it’s that way for drugs, and if there was to become a ban or highly restrictive ownership of firearms, the cost would increase, people would still own them, and those who owned them more defiant of the law.

It becomes a matter of culture and how children are raised and cared for, in conjunction with, how do we treat each other, provide opportunities, and shelter those who are unable to fend for themselves. Desperation breeds turbulent violent behavior, as well as a lack of nurturing parents.

but … but … If nobody has a gun you will have no gun violence.

I’ve seen that statement, expressed in several ways. If you’ve read up to this point, and I haven’t convinced you that’s not possible, even with the most strict laws, then we’ve come to an impasse. Laws exist to criminalize specific behavior. Lumping the millions of good people who own and don’t use their guns to murder, rob, or rape, in with those that do, creates a state of disregard for almost all laws. Self preservation, along with freedom to choose are core to humans. Take away altogether those natural rights, rejects fundamental law which only through civil disobedience, anarchy, revolution, can those rights be restored once again.