Saturday, April 12, 2025

Is the party going to end soon?

 OK, show me where the concept of "self-defence" is explicitly mentioned in the US constitution.

Militia Training by James G. Clonney (PAFA)

It's not. And proper statutory interpretation says that when a law explicitly includes certain elements (e.g., common defence, army, navy, militia,etc.), it is inferred that the omission of other elements (e.g., private ownership of arms) is deliberate and intentional. This principle has been employed to ensure that the interpretation of laws remains consistent with their textual formulation. 

I would point out that the miltia is mentioned in the US Constitution and that the power of congress over it granted under Article I, Section 8, Clause 16 was one of the concerns high on the minds during the drafting of the Consrtitution. The other one being that the Feds had an Army. In the words of Elbridge Gerry:

  • What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.
A far better way of framing the discussion of what the Second Amendment is about and how it was understood by the founders is more along the lines of this early version of the right:
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; 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.
Virginia Declaration of Rights, 1776 §13 which was written by Thomas Jefferson
This version is more than backed up by the primary sources that are taken out of context, or just misquoted, by the gun crowd. Or as Patrick Henry scholar, Henry Mayer, said:
This is not, I repeat NOT, part of Patrick Henry’s legacy. Clearly speaking of the problem of militia organization, what he actually said is, “The great object is that every man [of the militia] be armed.–But can the people to afford to pay for double sets of arms &c.? Every one who is able may have a gun. But have we not learned by experience, that necessary as it is to have arms, and though our assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance….”

 And Henry made it clear that he was addressing Article I, Section 8, Clause 16.

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.

I should remind people that Justice Douglas was on the Court when Miller was decided, in addition to being one of the longest sitting justices. So, I would put his interpretation of Miller as being more autoritativre than Scalia's. But Scalia was correct in that Miller was not helpful to his reinterpretation of the constitution.

Which gets to my question: is the party going to end soon? Are people going to see the real history of the Second Amendment and constitution? Even more importantly, are they going to see that the Supreme Court has been acting outside its powers. After all, Judicial review is not in the US Consrtitution, but comes from the case of Marbury v Madison,  5 U.S. 137 (1803).

 A case that states “It cannot be presumed that any clause in the constitution is intended to be without effect.” 

Better yet, from the neglected case 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.

 The problem with the Heller-McDonald rewrites and the offspring thereof is that there was a Second Amendment jurisprudence, which said it applied solely to the Militia and the Federal Government's power over that body.

Let's bring it back to what it should be.

No comments:

Post a Comment