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Renegade
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Posted: Wed Jul 2nd, 2008 04:11 am |
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You heard it here first...
The Second Amendment Wiped Away Again
For nearly seventy years after the U.S. Supreme Court decision in Miller v. The United States the Second Amendment’s right to keep and bear arms became a dead letter in the law. All of the present gun-control laws were passed and litigated over with seldom a mention of the Second Amendment.
The Supreme Court decision in District of Columbia v. Heller handed down last Tuesday seemed to change everything. The Second Amendment had been found to be a right belonging to every American. But it took only a single day in Virginia to have the Second Amendment again become largely a dead letter according to the lower federal courts.
Senior Norfolk Judge Henry Coke Morgan held in a local federal case the day after Heller was decided that the individual right created by the Second Amendment does not impose any obligations whatsoever on state or local governments: only the federal government. The decision came in the controversial case of Chet Szymecki v. City of Norfolk where the citizen was detained, handcuffed and roughed up by Norfolk The count made under the Second Amendment for injunctive relief and for compensation was dismissed. The other constitutional claims made by Szymecki, for an unreasonable seizure and for the use of excessive force by police, survived dismissal, at least for now.
Judge Morgan’s opinion cites for support but one Fourth Circuit Court of Appeals decision. Edwards v. City of Goldsboro (1999). That case treats the Second Amendment in a single, short paragraph with conclusions only: no analysis. That City of Goldsboro case also cites to but one earlier Fourth Circuit decision. That earlier case provided the same short treatment of the Second Amendment. Love v. Pepersack (1995). That decision cited two U.S. Supreme Court case from 1876 and 1886 that held, like all post Civil War era decisions did, that the Bill of Rights was not made incumbent on state governments by the passage of the 14th Amendment. That constitutional jurisprudence changed entirely during the Twentieth Century making the Bill of Rights incumbent on the States. Judge Morgan finds the Second Amendment to be such a poor stepchild among the Bill of Rights that it can safely be ignored by government in 90% of instances.1
Many leftist commentators on Heller make the same argument also without providing a logical reason to exempt States and cities from one of the Bill of Rights, but not the others. This issue is the next big hurdle for the Second Amendment to overcome in its long passage to relevance again.
This publication hopes Mr. Szymecki’s case becomes the next U.S. Supreme Court decision concerning the scope of the Second Amendment. Then Americans will finally have a right of self-defense that applies to all levels of government interference.
1 This is all of the Fourth Circuit writings there are on the Second Amendment in the past seventy years:
Edwards v. City of Goldsboro, 178 F.3d 231, 231 (4th Cir. 1999)
“The Second Amendment provides that “[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.” U.S. Const. amend. II. The district court properly dismissed Sergeant Edwards' claim that the Defendants violated the Second Amendment by denying him permission to teach the concealed handgun safety course while he was off-duty and by punishing him for doing so without permission, because the law is settled in our circuit that the Second Amendment does not apply to the States. See Love v. Pepersack, Sr., 47 F.3d 120, 123 (4th Cir. 1995) (holding that Second Amendment does not apply to the States, and therefore affirming dismissal of plaintiff's claim against State of Maryland and several Maryland state police officers, alleging that such parties violated her Second Amendment right to “keep and bear” a handgun by denying her a permit to carry a handgun).”
Love v. Pepersack, 47 F.3d 120, 120 (4th Cir. 1995)
“The Second Amendment does not apply to the states. Presser v. Illinois, 116 U.S.United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 [F.3d 124] (1876).5 Moreover, even as against federal regulation, the amendment does not confer an absolute individual right to bear any type of firearm. In 1939, the Supreme Court held that the federal statute prohibiting possession of a sawed-off shotgun was constitutional, because the defendant had not shown that his possession of such a gun bore a “reasonable relationship to the preservation or efficiency of a well regulated militia.” United States v. Miller, 307 U.S. 174, 178, 59 S. Ct. 816, 818, 83 L. Ed. 1206 (1939). Since then, the lower federal courts have uniformly held that the Second Amendment preserves a collective, rather than individual, right. This court's precedent is United States v. Johnson, 497 F.2d 548 (4th Cir. 1974). In Johnson, the defendant challenged the constitutionality of the federal statute prohibiting possession of firearms by convicted felons. We were not impressed (id. at 550): 252, 6 S. Ct. 580, 29 L. Ed. 615 (1886);
Johnson's argument that [18 U.S.C. §] 922(g) is an unconstitutional violation of his Second Amendment right to keep and bear arms is not new. See, e.g., United StatesU.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939). The courts have consistently held that the Second Amendment only confers a collective right of keeping and bearing arms which must bear a “reasonable relationship to the preservation or efficiency of a well-regulated militia.” 307 U.S. at 178, 59 S. Ct. at 818. Johnson presents no evidence that section 922(g) in any way affects the maintenance of a well regulated militia.’
Obviously, these judges were quite wrong about the import of the Second Amendment.
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imperialism2024
Supporting Member
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Posted: Wed Jul 2nd, 2008 04:18 am |
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Well, that certainly didn't take long... 
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tattedupboy
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Posted: Wed Jul 2nd, 2008 04:53 am |
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If 2A only applies to the federal government, then I'd like to know how that can be reconciled with the Heller decision, which struck down a local, not federal gun ban.
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KBCraig
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Posted: Wed Jul 2nd, 2008 07:38 pm |
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Gura wants a case that will rule directly on incorporation of the 14th. This sounds like a good one!
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asforme
Activist Member
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Posted: Wed Jul 2nd, 2008 07:57 pm |
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tattedupboy wrote: If 2A only applies to the federal government, then I'd like to know how that can be reconciled with the Heller decision, which struck down a local, not federal gun ban.
Because the Constitution dictates that DC is to be run by Congress. Any local laws are under the authority of the federal government.
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Citizen
Founder's Club Member
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Posted: Wed Jul 2nd, 2008 09:26 pm |
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OK. So the feds said its not incorporated.
OK. That's why we have state constitutions. Check Article 1, Section 13 of the VA Constitution:
Section 13. Militia; standing armies; military subordinate to civil power.
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
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tattedupboy
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Posted: Thu Jul 3rd, 2008 04:20 pm |
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asforme wrote: tattedupboy wrote: If 2A only applies to the federal government, then I'd like to know how that can be reconciled with the Heller decision, which struck down a local, not federal gun ban.
Because the Constitution dictates that DC is to be run by Congress. Any local laws are under the authority of the federal government.
Fine. While we're at it, let's pass a second version of the Alien and Sedition Acts for D.C. as well as a law that gives police the authority to go into any house at any time for whatever reason without a warrant and without the homeowner's consent, both under the purview that D.C. is not a state, but rather a unit that is administered by the federal government.
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asforme
Activist Member
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Posted: Thu Jul 3rd, 2008 08:13 pm |
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tattedupboy wrote: asforme wrote: tattedupboy wrote: If 2A only applies to the federal government, then I'd like to know how that can be reconciled with the Heller decision, which struck down a local, not federal gun ban.
Because the Constitution dictates that DC is to be run by Congress. Any local laws are under the authority of the federal government.
Fine. While we're at it, let's pass a second version of the Alien and Sedition Acts for D.C. as well as a law that gives police the authority to go into any house at any time for whatever reason without a warrant and without the homeowner's consent, both under the purview that D.C. is not a state, but rather a unit that is administered by the federal government.
I'm not saying I agree with them, but that's their argument. The fact is that the right is not granted by the Constitution, it is preexisting and enumerated. All other rights in the Bill of Rights has been ruled to apply to states, the Second is no different.
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SlackwareRobert
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Posted: Mon Jul 21st, 2008 02:18 pm |
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If it only applies to stopping federal govt bans. Then how come
I can't carry in a fed post office?
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murphy2
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Posted: Mon Jul 21st, 2008 02:43 pm |
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tattedupboy wrote: If 2A only applies to the federal government, then I'd like to know how that can be reconciled with the Heller decision, which struck down a local, not federal gun ban.
Wa. DC. is federal territory. It is not a state. "shall have exclusive legislation....." Per. US constitution. DC. was not local it is federal. It is a bogus argument to imply the 2nd pertains only to the Feds. It was the states that wanted assurance the central government would not infringe the rights of citizens. Since it was the states that added the Bill of rights I'd say it is a state protection. If anything the Bill of rights do not apply to federal territory. This is one reason the 14th was added to make US citizens and not just state citizens. SO yes you'd think it would apply to state and federal territory. But we have traitors in high places.
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Pointman
Supporting Member
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Posted: Mon Jul 21st, 2008 03:35 pm |
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| Since the Second Amendment guarantees an individual right, it applies to individuals, and therefore Szymencki is guaranteed his rights under it. The court finding in the Szymencki case is clearly incorrect.
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lukeshort
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Posted: Mon Jul 21st, 2008 03:55 pm |
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This is crazy. The Constitution is about rights guaranteed to the states and the citizens respectively from federal interference and federal intrusion. That is what it is and all about. Congress (feds) has its jurisdiction and the states have there jurisdictions. The people, supposedly through representation have a voice in the federal government; I fear this is not the case anymore. Through this voice is supposedly how the government is kept in check by the people. But these politicians and activist judges are playing by their own rules and have been for some time. We the people better get busy with our government representatives, and not just about guns, or we will surely be kissing the ground picking rice for our betters. Am I the only one that see's this coming?
How do those citizens that take an oath to defend this country and constitution, defend something that doesn't exist or changes with the tide of political opinion? It is not a complicated peace of work, the constitution, there is nothing that needs reinterpretation or hidden meanings within this document. It means exactly what it says. With phrases like "shall not" and "the people" it would seem beyond reproach.
What has happened to this country is the people have become complacent with there government and activism has been left to the truly insane over truly ridiculous issues. Having nothing to do with protecting freedom of individuals, but freedom of groups in society that have no desire to defend this country and its true virtues. The 2nd amendment is one of the truly most important, for without this protected right, all others in a real since are unprotected (null and void). Because protection for society does not come from the mere institution of government, but the people this government represents. Who do your elected officials represent at the city, county, state and federal level? What can we do to change this before it gets to far out of control, if it hasn’t all ready?
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Citizen
Founder's Club Member
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Posted: Mon Jul 21st, 2008 04:30 pm |
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lukeshort wrote: This is crazy. The Constitution is about rights guaranteed to the states and the citizens respectively from federal interference and federal intrusion. That is what it is and all about. Congress (feds) has its jurisdiction and the states have there jurisdictions. The people, supposedly through representation have a voice in the federal government; I fear this is not the case anymore. Through this voice is supposedly how the government is kept in check by the people.
Yep. Drive's ya crazy don't it?
Until you distinguish between what the Constitution actually says and the promotional information about it. Take the promotional information out of the picture and just read the Constitution with a reasonable dose of suspicion about people who have power. Add a smidgen of understanding about human nature. You see a different picture.
A fella named Lysander Spooner in 1870 wrote something along the lines of: the Constitution either gave us such government as we have had, or was powerless to stop it.
Its the rules of the game (the Constitution), not the players. The rules allow the savvy players to get away with things. The rules are stacked against us. Just enough that its taken 219 years to really show up.
To see a deeper analysis, read Hologram of Liberty. I got my copy from http://www.gunlaws.com
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Venator
Supporting Member
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Posted: Mon Jul 21st, 2008 06:31 pm |
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tattedupboy wrote: If 2A only applies to the federal government, then I'd like to know how that can be reconciled with the Heller decision, which struck down a local, not federal gun ban.
What I don't understand is if the 2nd. amd. doesn't have to be recognized by the states, that it is only a Federal issue, what about the others like slavery (13th amendment). Can slavery be legalized in Michigan? I bet if slavery was legalized in Michigan the Feds would have something to say about it. So what am I missing?
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asforme
Activist Member
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Posted: Mon Jul 21st, 2008 07:03 pm |
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You're not missing anything. Since the liberals lost on the stupid idea that the second amendment only protected the military, now they've come up with a new stupid idea that the scope of the second amendment only limits the federal government. I don't know where they come up with this crap, but that's what they're arguing.
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lukeshort
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Posted: Mon Jul 21st, 2008 07:19 pm |
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Citizen wrote: lukeshort wrote: This is crazy. The Constitution is about rights guaranteed to the states and the citizens respectively from federal interference and federal intrusion. That is what it is and all about. Congress (feds) has its jurisdiction and the states have there jurisdictions. The people, supposedly through representation have a voice in the federal government; I fear this is not the case anymore. Through this voice is supposedly how the government is kept in check by the people.
Yep. Drive's ya crazy don't it?
Until you distinguish between what the Constitution actually says and the promotional information about it. Take the promotional information out of the picture and just read the Constitution with a reasonable dose of suspicion about people who have power. Add a smidgen of understanding about human nature. You see a different picture.
A fella named Lysander Spooner in 1870 wrote something along the lines of: the Constitution either gave us such government as we have had, or was powerless to stop it.
Its the rules of the game (the Constitution), not the players. The rules allow the savvy players to get away with things. The rules are stacked against us. Just enough that its taken 219 years to really show up.
To see a deeper analysis, read Hologram of Liberty. I got my copy from http://www.gunlaws.com
Yes, it does drive me crazy. Thank you for the reference, I'll read it.
There is a quote, contributed to one historical figure I can't seem to find at the moment, stating along the lines of "no republic has ever survived itself, and is usually destroyed from within". It’s something along those lines. It is beyond me why with all the historical documentation and events that have taken place to establish this country, and recent historical events elsewhere in the world. That the people of this nation are willing to concede power to a limited few who obviously have no interest in a nation of freemen, but would rather dictate the amount of liberty to each class of citizen. It sure sends a shiver down my spine to think of the next generations place in this world.
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murphy2
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Posted: Mon Jul 21st, 2008 07:55 pm |
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"Not the armies of Europe, Asia or Africa combined could by force take one drink from the Ohio. Or set one foot on the Blue Ridge....... If we full it will be from within". -President. Abraham Lincoln.
Very prophetic. If you look at the history of republics and democracies. They all evolved into dictatorships by laws past for "public good and safety" When a government tells you, you can't think for yourself or don't know whats good for you. Time for change.
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imperialism2024
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Posted: Tue Jul 22nd, 2008 09:46 pm |
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SlackwareRobert wrote: If it only applies to stopping federal govt bans. Then how come I can't carry in a fed post office?
Because the majority opinion in our so-called "win" in Heller allows bans on carrying in "sensitive" places: "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
But hey... now we get to go "Guns aren't just for the National Guard! We win! Nah nah nah nah nah nah!" 
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KBCraig
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Posted: Wed Jul 23rd, 2008 03:12 am |
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murphy2 wrote: "Not the armies of Europe, Asia or Africa combined could by force take one drink from the Ohio. Or set one foot on the Blue Ridge....... If we full it will be from within". -President. Abraham Lincoln.
Very prophetic.
And very ironic, coming from the man who destroyed the Republic to keep it intact.
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lukeshort
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Posted: Wed Jul 23rd, 2008 05:39 am |
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KBCraig wrote: murphy2 wrote: "Not the armies of Europe, Asia or Africa combined could by force take one drink from the Ohio. Or set one foot on the Blue Ridge....... If we fall it will be from within". -President. Abraham Lincoln.
Very prophetic.
And very ironic, coming from the man who destroyed the Republic to keep it intact.
Destroyed? How so?
It is my understanding the civil war was about states rights and a few rebelled for their beliefs and formed the confederacy. A drastic measure in any case, but one they were willing to fight for. Lincoln alone did not destroy the union, and then preserve it. Both sides weighed the consequences and hashed it out, with plenty of blood spilled on both sides.
My loyalty would have been toward the union, but the south would have had my sympathy.
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