Sunday, March 24, 2013

What the Civic right Does and Doesn't do.

The problem with politicising the Second Amendment is that it blinds people to the exact ramifications of this legal principle:
"If a topic is not specifically mentioned in a law, one cannot assume that topic is covered by the law."

In other words, since the Second Amendment is silent on the topic of personal arms, yet it does specifically mention the militia--one cannot infer that personal uses are covered.

I was discussing this with a "pro-gun" friend when he said "So, this means that Kennesaw, Georgia's requirement that everyone own a gun is constitutional" as the light when on in his head.

Which is correct--the Second Amendment is silent on the topic of personal guns, which means that neither a gun ban, nor a requirement that everyone own a gun would not violate the Constitution.  Although, one could argue that the requirement that everyone owned a gun could violate the First Amendment.

Just not the Second.

But, the real significance of the Second Amendment not applying to personal weapons is that any attempt to justify NOT regulating the firearms based on a personal "right to keep and bear arms" is thwarted.  Unless, one is using a State Constitution which does mention personal purposes.

Also, as the Heller-McDonald decisions have pointed out, the politicisation of the Second Amendment has made the make-up of the Judiciary an important consideration for elections.

To answer a commonly asked question, if the Miller Decision is still good law, how have the Heller-McDonald decisions affected its status as precedent.

Quite easily answered, despite what you think, the civic right interpretation is not dead, it's just dormant.

All you need is a judge who agrees with me and points out the overwhelming evidence for that interpretation as well as understands Miller and can show why it contradicts the Heller-McDonald decisions.  That judge points out the reason that the five justices found that decision "not helpful" is that it completely contradicts what they were doing.

That includes glossing the Cryptic  Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840) reference at the end of this paragraph from Miller:
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.
Aymette  says:
To make this view of the case still more clear, we may remark, that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides, "that no citizen of this State shall be compelled to bear arms, provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.
Justice McReynolds taught law at Tennesse's Vanderbilt University, I am sure he was quite aware of this reference which has gotten lost in the mix. And what he is saying is that the Second Amendment's use of the phrase to keep and bear arms has a military sense, and no other.

1 comment:

  1. What about the Georgia ordinance - I don't believe it technically qualifies as a 'law'- requiring gun ownership and the Commerce clause? I suspect that it might be unconstitutional on those ground as well, unless it specifies a resident is only required to own a gun manufactured and sold in Georgia -- and how many gun manufacturers are there in GA? A quick internet search turned up at best six, and at least one or more of them appear to be only manufacturing muzzle loaders -- now THAT would be consistent with the thinking of the originalists!!!!