Date: Sun, 14 Apr 1996 05:25:03 -0400
Reply-To: [j--e--l] at [genie.com]
From: [j--e--l] at [genie.com]
Subject: Unconstitutional Rights

 The following article is under submission.  Reproduction
 in computer file and message bases is permitted for informational
 purposes only.  Copyright (c) 1996 by J. Neil Schulman.
 All other rights reserved.



               THE UNCONSTITUTIONAL BILL OF RIGHTS

                       by J. Neil Schulman


     What does it mean to be an American?

     This is a question patriots are going to have to start
asking themselves, seriously, for the first time since the end of
the Civil War on April 9, 1865, six score and eleven years ago.

     That war, the mostly costly in American lives of any in U.S.
history, was made inevitable by the decision of the Supreme Court
of the United States announced on March 6, 1857 in the case of
Dred Scott v. Sanford.  Scott was a slave purchased by a U.S.
army surgeon, John Emerson, in 1833, while in the slave state of
Missouri.  In 1834, Scott accompanied Emerson to Illinois, a free
state, and thereafter to the northern part of the Louisiana
Purchase, a free territory.  The two returned to Missouri in
1838. In 1846, Emerson having died and title to the slave Dred
Scott having passed to John F.A. Sanford of New York, Scott sued
the out-of-stater Sanford in Federal court, his antislavery
lawyers arguing that because Scott had been a resident in a free
state and a free territory, he was a free man.  The Supreme Court
ruled in the Dred Scott case that Negroes were not citizens of
the United States and did not have legal standing to sue in the
federal courts.

     "Standing," in the legal sense, is the first issue that any
court must look at as a legal issue.  Could a lawyer go into
court representing a redwood tree's right not to be cut down?
The court would first have to decide whether the tree had legal
standing to bring a petition or lawsuit to the court.  Does a
fetus have the right to sue a mother to prevent the mother from
aborting?  The court would first have to decide whether the fetus
was an "it" or a legal person.  The Supreme Court in Dred Scott
asserted that Scott was not a "he" but an "it": mere property.

     The Supreme Court having ruled on March 6, 1857 that the
Constitution of the United States allowed slavery, and that the
American Declaration of Independence was incorrect when it stated
on July 4, 1776 that "all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that
among these are Life, Liberty and the pursuit of Happiness," it
was a matter of a short four years and five weeks before the
conflict between those Americans who believed that the
Declaration of Independence applied to all men found themselves
in a shooting war with those who believed it applied only to
white men, when pro-slave-state Confederates fired on Fort Sumter
on April 12, 1861.

     One can easily argue that the decision by President Abraham
Lincoln to preserve the jurisdiction of the Constitution of the
United States over Southern States who had voted to secede was a
Pyrrhic victory, in that it was brute force rather than love of
liberty which defeated the South - and the balance of power
between the states and the federal government has never been
right since.  Nevertheless, the Southern States had also first
seceded from Britain under the Declaration of Independence's
premise, "That to secure these rights, Governments are instituted
among Men, deriving their just powers from the consent of the
governed, -- That whenever any Form of Government becomes
destructive of these ends, it is the Right of the People to alter
or to abolish it, and to institute new Government, laying its
foundation on such principles, and organizing its powers in such
form, as to them shall seem most likely to effect their Safety
and Happiness."

     Dred Scott was not consenting to be a slave.  The Southern
states could try to secede from the Constitution of the United
States.  They could not secede from Dred Scott's natural rights
as stated in the Declaration of Independence.

     Why this history lesson?  Why now?

     We have had controversial Supreme Court decisions in the
years since the Dred Scott case.  Brown v. Board of Education.
Roe v. Wade.  But there now comes a case as important as Dred
Scott, and it cannot be allowed to stand without forcing American
patriots who love liberty to ask themselves what sort of country
the United States of America has become, where an obvious right,
enshrined in the Constitution of the United States, can be
summarily dismissed by a federal appellate court on the same
grounds as the Dred Scott case: that a citizen of the United
States doesn't have standing to bring suit in federal court when
officials violate his constitutionally protected rights.

     The case is Hickman v. Block, and the ruling was announced
April 5, 1996 by the United States Court of Appeals for the Ninth
Circuit.

     Douglas Ray Hickman, owner of a Southern California security
firm, had repeatedly applied for a license to carry a concealed
firearm, and had repeatedly been denied, by public officials
including Los Angeles County Sheriff, Sherman Block.  The merits
of Hickman's applications are no longer at issue, since Hickman
later obtained such a license from the City of Los Angeles as
part of a separate lawsuit filed in California state courts.  But
Hickman first sued in federal court, citing his right under the
Second Amendment to "bear arms."  The Second Amendment to the
Constitution of the United States reads, "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." The sole question remaining before the Court of
Appeals for the Ninth Circuit when it issued its ruling was: did
Douglas Ray Hickman have legal standing to sue in federal court
for any injury that might arise from violation of his rights
under the Second Amendment?

     The United States Court of Appeals for the Ninth Circuit
said no.  It said, "Hickman lacks standing to sue for a violation
of the Second Amendment."  The Court's reason?  "The question
presented at the threshold of Hickman's appeal is whether the
Second Amendment confers upon individual citizens standing to
enforce the right to keep and bear arms.  We follow our sister
circuits in holding that the Second Amendment is a right held by
the states, and does not protect the possession of a weapon by a
private citizen.  We conclude that Hickman can show no legal
injury, and therefore lacks standing to bring this action."

     The ruling was issued by a three-judge panel of the Ninth
Circuit: Cynthia Holcomb Hall, John T. Noonan, and William B.
Shubb.  Before Hickman asks the Supreme Court of the United
States to grant a further hearing, Hickman's attorneys will ask
the complete Ninth Circuit to take another look at the case.
They could do so or not.  The Supreme Court of the United States
could issue a summary affirmation of the Ninth Circuit's ruling,
or it could deny certiorari -- which means they could decide not
to listen to the case and let the ruling stand as the law of the
land for the federal district in which the lawsuit was filed --
or the Supreme Court could agree to hear this case and tell us
whether Douglas Ray Hickman has as little standing to ask for his
rights as Dred Scott, which is what the Court of Appeals for the
Ninth Circuit has ruled.

     There are at least seventy million Americans now living to
whom this question is not theoretical but immediate and
meaningful: they are the seventy million Americans who are
estimated to own guns. That is about half the adults in the
United States, a much larger part of the population than the
ethnically black African population of the United States on March
6, 1857.  If a federal appeals court can get away with telling
seventy million Americans that they don't know how to read a
plain English sentence with a single unrestricted clause in it --
"the right of the people to keep and bear arms shall not be
infringed" -- and that the authors of the Bill of Rights were
illiterates who wrote "people" when they really meant "states"
 ... then what?

     Another Civil War three years and five weeks from now?  A
mass protest movement equivalent to the Civil Rights protests of
thirty years ago?  Mass civil disobedience, as gun-owners find
themselves subject to the legislative whims of the Charles
Schumers and Dianne Feinsteins in Congress, and the Bill and
Hillary Clintons in the White House?

     Make no mistake: this court ruling was decided on political
grounds, not judicial grounds.  It will take a political mass
movement to overturn it.  This election year is as good a time as
any to start.

     The candidates for president, and for Congress,  must be
shown this decision and they must take a position on it.  They
must have questions shouted at them about it at press conferences
and signs asking them about it at their public rallies.  The
presidential candidates must be asked whether they will appoint
federal judges who will rule that there is an individual right to
keep and bear arms under the Second Amendment. Candidates for the
United States Senate must be asked whether they will vote to
confirm an appointment of a candidate who does not pledge to
support the Second-Amendment.

     You see, we patriots have to start deciding what we are
going to do if we find ourselves with no Second Amendment.  There
are already legislative and court attacks on the rest of the Bill
of Rights: anti-terrorism legislation which attacks the Fourth,
Fifth, and Sixth amendments; a Communications Decency Act which
threatens the First Amendment.  Ultimately, protections written
on parchment are only as good as the will, and power, of the
people to enforce them.

     Are you willing to live in a United States of America where
you have no legal standing to sue for violation of your
Constitutional rights?  If you are, you and I have nothing further
to discuss.

     But if you are not willing to live in a country where a
federal court can say you have as few rights as a slave -- then
what are you willing to do about it?


                             *****

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