Newsgroups: talk.politics.guns
From: [ACUS 10] at [WACCVM.SPS.MOT.COM] (Mark Fuller)
Subject: [Magazine Article] Firearms Facts
Date: Thu, 2 Dec 1993 20:34:12 GMT

                             Firearms Facts
                     Legal Precedents That Support
                     the Right to Own and Bear Arms

        After reading for ourselves the cases that are being cited by
        many as authority that the Second Amendment is not applicable to
        the States, and that the plain lanugage in the Constitution
        doesn't mean what it says, we fail to see how anyone can say
        there is no "Right to Bear Arms."

by Hale R. Stancil, Judge, Marion County, Florida.
[as printed in U.S. Gun October/93]

        After reading several comments recently on the "Right to Bear
Arms," I decided to read for myself the cases being cited by many as
authority that the Second Amendment is not applicable to the States, and
that the plain language in the Constitution doesn't mean what it says.
The cases I read were: Miller vs. U.S., 307 U.S. 171, 59 S.Ct. 816
(1939), Quilici vs. Village of Morton Grove, 695 F.2d 261, (1982), U.S.
vs. Cruikshank, 92 U.S. 542, (1876), Presser vs. Illinois, 116 U.S. 252,
6 S.Ct. 580 (1886) and Miller vs. Texas, 153 U.S. 535 (1894), and after
reading these cases, I fail to see how anyone can say there is no "Right
to Bear Arms."

        In Miller, supra, the gun in question was a Stevens 12-gauge
double barrel shotgun with a barrel less than 18 inches in length. The
district court in holding the 1934 N.F.A. violated the Second Amendment
quashed the indictment and the government appealed. The defendants Jack
Miller and Frank Layton made no appearance before the Supreme Court. In
other words, no brief in support of the district court's decision was
filed. Thus the Supreme Court heard only the position of the government.
Even in spite of this fact, Justice McReynolds wrote, "In the absence of
any evidence tending to show that possession or use of a "shotgun having
a barrel of less than 18 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 the judicial notice that this weapon is any part of the ordinary
military equipment or that its use could contribute to the common
defense."

        Let us not forget that the weapon in question was a double
barrel shotgun with a barrel length less than 18 inches.

        Justice McReynolds went on to say, "The signification attributed
to the term 'Militia' appears from the debates in the convention, the
history and legislation of colonies and states, and the writings of
approved commentators. These show plainly enough that the militia
comprised all males physically capable of acting in concert for the
common defense. 'A body of citizens enrolled for military discipline.'
And further, that ordinarily when called for service these men were
expected to appear bearing arms supplied by themselves and of the kind
in common use at the time."

        I read Miller, supra, as in support of the "Right to Bear Arms."

        In Miller vs. Texas, supra, Justice Brown wrote that "... it is
well settled that the restrictions on these Amendments (both the Second
and Fourth Amendments) operate only upon the Federal power, and have no
reference whatever to proceedings in state courts," citing Cruikshank,
Supra. Certainly Miller vs. Texas, supra, has been overruled by numerous
subsequent decisions and should not be cited as denying the "Right to
Bear Arms."

        In Presser, supra, the defendant Herman Presser with a cavalry
sword marched at the head of a company of about 400 that "was not a part
of the regular or organized militia of the state, nor a part of troops
of the United States, and had no organization under the militia law of
the United States" without a license, and was convicted of violation of
the Illinois Military Code.

        "The question is, therefore," Justice Woods wrote, "Had he a
right, as a citizen of the United States, in disobedience of the state
law, to associate with others as a military company, and to drill and
parade with arms in the towns and cities of the state?"

        In the decision of the United States Supreme Court, Justice Wood
wrote, "We think it clear that the sections under consideration which
only forbid bodies of men to associate together as military
organization, or to drill or parade with arms in cities and towns unless
authorized by law, do not infringe the right of the people to keep and
bear arms."

        Justice Woods went on to say in Presser, supra, "It is
undoubtedly true that all citizens capable of bearing arms constitute
the reserve military force or reserve militia of the United States as
well as of the states, and, in view of this prerogative of the general
government, as well as of its general powers, that states cannot, even
laying the Constitutional provision in question out of view, prohibit
the people from keeping and bearing arms, so as to deprive the United
States of their rightful resource for maintaining the public security,
and disable the people from performing their duty to the general
government."

        It should be noted that in Cruikshank, supra, the Chief Justice
wrote that the right of the people to keep and bear arms "is not a right
granted by the Constitution. Neither is it in any manner dependent upon
that instrument for its existence. The Second Amendment declares that it
shall not be infringed, ... it shall not be infringed by Congress."

        What does the sentence, "NEITHER IS IT IN ANY MANNER DEPENDENT
UPON THAT INSTRUMENT FOR ITS EXISTENCE" mean? Doesn't this mean that the
"Right to Bear Arms" is a natural right, an inalienable right, a
fundamental right? The "Right to Bear Arms" was not conferred by the
Second Amendment, because this right in fact existed before the
Constitution, even before the founding of the colonies. It has existed
since man picked up the first stone in defense of his person or
property.

        The Quilici decision is a rather amusing decision if one stops
to take the necessary time not only to read, but to digest the opinion.
While upholding the city of Morton Grove's right to ban a particular
type of firearm, i.e. handguns, Justice Bauer, writing for the majority,
wrote: "Because we have concluded that the Illinois Constitution permits
a ban on certain categories of arms, home rule units such as Morton
Grove MAY PROPERLY ENACT DIFFERENT, EVEN INCONSISTENT, ARMS
RESTRICTIONS." Later in the decision Justice Bauer concluded "... but we
reiterate that section 22 (State of Illinois Constitution) simply
prohibits an absolute ban on all firearms. Since Ordnance No. 81-11 does
not prohibit all firearms, it does not prohibit a Constitutionally
protected right."

        There you have it. Under this reasoning one city might outlaw
handguns, another rifles of a certain caliber, another all rifles and
handguns, another all shotguns except single barrels, another all arms
except air rifles, the options are almost endless.

        In the well reasoned dissenting opinion Justice Coffey wrote,
"Surely nothing could be more fundamental to the concept of ordered
liberty than the basic right of an individual, within the confines of
the criminal law, to protect his home and family from unlawful and
dangerous intrusions."

        I agree with Justice Coffey, "The Morton Grove Ordinance, by
prohibiting the possession of handguns within the confines of the home,
violates both the fundamental right to privacy and the fundamental right
to defend the home against unlawful intrusion within the parameters of
the criminal law."

        For those citizens who are weak, ill or elderly, the only
defense against the stronger, swifter criminal is with a gun. Few
citizens have the physical means to protect themselves against the
criminals they face, especially when the criminal gets to choose or pick
the time, the place, the weapon and the victim.

        Today when many of our time honored traditions are being
attacked time and time again, we need to look again at our Constitution
and its Preamble.

        Those who contend that the Second Amendment to the Constitution
which 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, has no purpose today have not kept up with the times.
Those who contend the "Right to Bear Arms" should apply only to those
firearms in existence when the Constitution was adopted should likewise
take a closer look at what they are saying.

        If the Second Amendment applies only to flintlocks and other
similar muzzle loading firearms, then under the First Amendment, freedom
of the press should be held to apply only to hand operated printing
presses and persons standing on the street corner spewing forth their
thoughts. Certainly those that wish to so narrowly construe the Second
Amendment should likewise be willing to construe the First Amendment as
not applying to television, telegraph, telephone, microphone
amplification, FAX machines, electronic mail, radio, along with
magazines, newspapers and advertisements printed with the use of
automation and computers.  The Founding Fathers never contemplated the
mass media of the nation being owned and controlled by a few giant
multi-billion dollar corporations wherein the content of what was or was
not to be published and/or disseminated was under the control of so few
with so much power over so many.

        I would submit that the Second Amendment is more than a
Constitutional Right. The Second Amendment recognizes the right to bear
arms. It does not convey or give the right to bear arms to any citizen.
The magic wording one will note is, the right to bear arms shall not be
infringed. Thus the Founding Fathers must certainly have already
recognized the right to bear arms, for the Amendment to have been worded
as it is. One will note that the other Amendments grant rights. For
example: freedom of religion; freedom of the press; right to counsel;
right against unreasonable searches and seizures; right to trial by
jury; and others.

        With regards to one's particular state, their Constitution may
or may not recognize this natural right to bear arms.

        Patrick Henry said, "Guard with jealous attention the public
Liberty. Suspect everyone who approaches that jewel. Unfortunately,
nothing will preserve it but downright force. Whenever you give up that
force you are ruined."

        "I speak for the adoption of the Second Amendment," Patrick
Henry said. "The great object is, that every man be armed ...Everyone
who is able may have a gun."

        The "Right to Bear Arms" is not a Constitutional right in so far
as the United States Constitution is concerned. It is a fundamental
right, an inalienable right, and yes, I do have the "Right to Bear
Arms."

        The question that needs to be asked today is: "Are we a
government of law where the Constitution is supreme, or a government of
men with a Constitution made out of rubber?"