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More on Heller vs. DC
By John
From the VMI eagle himself, Colonel Foresman, comes the constitutionalist angle.
Col H -
Yesterday’s decision by the Supreme Court in the Heller case was not surprising. Though I find it odd that I am in agreement with Antonio Scalia—whose whole jurisprudence is based on a concept of original intent. But this was not an ordinary case as it was about not only guns but what are the essential elements of the Bill of Rights.
There was time when I ascribed to the prevailing liberal view that the fundamental freedoms encased in the Bill of Rights were sacrosanct but that the 2nd Amendment was a collective right. Fortunately for me, being historian and great admirer of James Madison, I undertook some study of Madison’s authorship of the Bill of Rights. First, Madison was greatly influenced by the work of George Mason, another Virginian, who authored Virginia’s Bill of Rights. He was also greatly influenced by the thinking of and the written works of the Anti-Federalists. My study left me with the conclusion, which I share with Lawrence Tribe, liberal Law Professor at Harvard, that fundamental rights include the right to bear arms, and that to be effective the Bill of Rights must receive strict scrutiny in their abridgement.
Among the great surprises of my research was the realization that if Madison’s words has been adopted and ratified by the States, many of the questions which bedeviled the Supreme Court over the years would have less contentious. The second realization was that given an opportunity Congress, even in its first session, would meddle with plain English and make what we know as the Bill of Rights hard to comprehend.
For the sake of education, I am providing Madison’s original submissions; you will note that Madison’s submissions are broken into eight categories with some of the proposed amendments being additions to the preamble, some restrictions upon the actions of Congress, some being restrictions upon the Federal Courts, and the addition of an additional article to the Constitution
Here is a link: to the information. I have highlighted some portions in bold that supports my conclusion Madison had it right and as usual Congress screwed it up.
Amendments Offered in Congress by James Madison June 8, 1789First. That there be prefixed to the Constitution a declaration, that all power is originally vested in, and consequently derived from, the people.
That Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.
That the people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.
Secondly. That in article 1st, section 2, clause 3, these words be struck out, to wit: "The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative, and until such enumeration shall be made;" and that in place thereof be inserted these words, to wit: "After the first actual enumeration, there shall be one Representative for every thirty thousand, until the number amounts to ——, after which the proportion shall be so regulated by Congress, that the number shall never be less than ——, nor more than ——, but each State shall, after the first enumeration, have at least two Representatives; and prior thereto."
Thirdly. That in article 1st, section 6, clause 1, there be added to the end of the first sentence, these words, to wit: "But no law varying the compensation last ascertained shall operate before the next ensuing election of Representatives."
Fourthly. That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.
The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.
The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
No soldiers shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.
No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The rights of the people to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.
The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.
Fifthly. That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit:
No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.
Sixthly. That, in article 3d, section 2, be annexed to the end of clause 2d, these words, to wit:
But no appeal to such court shall be allowed where the value in controversy shall not amount to —— dollars: nor shall any fact triable by jury, according to the course of common law, be otherwise re-examinable than may consist with the principles of common law.
Seventhly. That in article 3d, section 2, the third clause be struck out, and in its place be inserted the clauses following, to wit:
The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service, in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorized in some other county of the same State, as near as may be to the seat of the offence.
In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.
Eighthly. That immediately after article 6th, be inserted, as article 7th, the clauses following, to wit:
The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that the Legislative Department shall never exercise the powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise the powers vested in the Legislative or Executive Departments.
The powers not delegated by this Constitution, nor prohibited by it to the States, are reserved to the States respectively.
Ninthly. That article 7th be numbered as article 8th.
What find interesting about Madison’s draft of what became the 2nd Amendment is that he clearly lays the right out up front, explains why it is important, and lastly recognizes there are those who are opposed based on religious grounds from bearing arms. The consistent theme of Madison’s draft is that the rights of individuals, who actions, beliefs, and causes, are outside the bounds of the norms of society, should not be abridged.
Madison, more than any of the other founders, was the champion of the common man from the unconstrained power of government. It is for this reason he is not only my favorite of the founders, but the founder who most contributed to giving us the democracy, good or bad, we enjoy today.
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Comments
Completely off subject but had to say it was a pleasure meeting SLAB on the hill up at the TACP school shoot and proud to join the ranks of Marine JTAC's out there.
If I have said it once, i will say it a millions times more, God I love this stuff. God Bless America and Long Live the Marine Corps.
Sweaty (SSgt OB)
Sweaty:
Small world, ain't it??
Good to go, see you drill weekend if y'all are on deck.
Evil Clown (LtCol P)
For someone who doesn't seem to care much for the originalist interpretation of the constitution (you state up front your surprise at your agreement with Scalia), you seem to go to great lengths to find out what the founding fathers meant at the time they wrote it.
Welcome to the originalist school of thought on the constitution. You cannot apply it some of the time. You have to apply it all of the time and in all situations, and take what it delivers - like it or not. Scalia is a hero. His opinion in Heller was brilliant, as all of his other opinions (and dissents). A recommended book is Scalia Dissents. It's worth the time. Lawrence tribe won't reckon in the history of law in America. Scalia will.
Lots of 2nd Amend. decisions being made recently. I hear from my son (will be a 2nd Class) at the Institute this fall, that Gen. Peay has decided that no personal firearms may be brought to VMI. Hopefully my son received some bum gouge.
As you've probably heard, they apparently had A LOT of problems with cadet abusing that privilege last year. And then, of course, the year before, there was an accidental discharge of a pistol in the guard room. I don't really see how he had any other chance. I doubt that any other college in the country affords its students the opportunity to store a weapon in residence halls, and that alone would be very telling to a jury, I should think, were someone to be injured and the "reasonableness" of such a policy questioned.
Additionally, that decision hardly implicates the 2nd Amendment pre-or-post Heller. First, and perhaps most importantly, we still don't know if the 2nd Amendment will be incorporated into the 14th Amendment and thus extended to cover state action. Though the majority of the individual rights in the Bill of Rights have been over the years in a litany of Supreme Court decisions, this is not automatic. Remember, the states are still not required by the constitution to have grand juries in criminal trials or to have trial by jury in civil cases (among a few others). So at this point, as far as anyone ought to be concerned, the states still have carte blanche to do what they want (of course, there have been flurries of complaints filed nationwide in the wake of this decision that could have the effect of bringing this issue to the table.)
Additionally, the Heller opinion also expressly leaves open the possibility that its holding doesn't close the door to any government regulation. Other individual, fundamental rights such as voting are subject to governmental regulation that is narrowly tailored and serve a compelling government interest. Restricting guns on school grounds would likely be such an interest.
It will be interesting to see what the SCOTUS decides the 2nd Amendment really means as applied to state and local governments in the future.
It will certainly be interesting to see how all of this shakes out, however.
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I've always thought that the strongest practical argument in favor of the individual rights interpretation-- and is there really any other??-- is as follows. Why, WHY, would the Founding Fathers insert an amendment monopolizing armed power in the hands of the State, in the midst of a bill that formally codifies one pre-exisiting individual right after another?? It doesn't make any sense that they would. Indeed, Eugene Robinson, in the WaPo the day after the decision, wrote:
"The big problem, for me, is the clarity of the Second Amendment's guarantee of the "right of the people to keep and bear arms." The traditional argument in favor of gun control has been that this is a collective right, accorded to state militias. This has always struck me as a real stretch, if not a total dodge.
"I've never been able to understand why the Founders would stick a collective right into the middle of the greatest charter of individual rights and freedoms ever written -- and give it such pride of place -- the No. 2 position, right behind such bedrock freedoms as speech and religion. Even Barack Obama, a longtime advocate of gun control -- but also a one-time professor of constitutional law -- has said he believes the amendment confers an individual right to gun ownership.
"And even if the Second Amendment was meant to refer to state militias, where did the Founders intend for the militias' weapons to be stored? In the homes of the volunteers is my guess.
"More broadly, I've always had trouble believing that a bunch of radicals who had just overthrown their British oppressors would tolerate any arrangement in which government had a monopoly on the instruments of deadly force. I don't mean to sound like some kind of backwoods survivalist, but I think the revolutionaries who founded this nation believed in guns."
And it's as simple as that. It means exactly what it says, nothing more and nothing less. He who believes otherwise is pissing up a rope.
May I note that Mr Robinson is NOT a famous conservative.
(The full column can be found here: http://www.washingtonpost.com/wp-dyn/content/article/2008/06/26/AR2008062603656.html?hpid=opinionsbox1 )
LONG LIVE THE CONSTITUTION, AND LONG LIVE ORIGINAL INTENT!!! GOD BLESS THE FOUNDERS FOR THE *REPUBLIC* THEY GAVE US!!