It doesn’t come as
any surprise that the US Supreme Court has turned down yet another Second
Amendment case. The Court has a sixty-year history of refusing to address
the issue, presumably to avoid having to admit that the Amendment might actually
mean what it says.
Based on appeals court decisions, citizens of Texas have a “right to keep
and bear arms,” while only members of the National Guard have that right
in the state of California.
Since its decision in The People of Indiana v, James Earl Miller,
73 US 312, the Court has consistently refused to accept Second Amendment
cases. Liberals have used this lack of Court action to declare that the Second
Amendment right to bear arms belongs only to active members of the National
Guard. Some federal appeals courts have also said that Miller supports this view.
The US Fifth Circuit Court Of Appeals set that all to rest with their decision in USA v. Emerson. It is one of the best defenses of the individual right to bear arms and the Second Amendment ever written.
In the Miller decision the Court ruled that a sawed off shotgun was
not protected by the Second Amendment because it was not a military style
weapon. While the Court’s official order implies that only military style
firearms such as assault weapons would be protected by the Second Amendment,
it says nothing that would limit the right to the military. In fact the Fifth
Circuit explains in detail how the Supreme Court’s logic in reaching their
opinion supports the individual right position.
The Fifth Circuit uses history, the original understanding of the Constitution,
and subsequent Supreme Court rulings to prove beyond any doubt that the Second
Amendment guarantees an individual right to keep and bear arms.
Our favorite quote from the decision reads: "And, as used throughout the
Constitution, 'the people' have 'rights' and 'powers,' but federal and state
governments only have 'powers' or 'authority,' never 'rights.'"
The liberal response to Emerson came from the infamous US Ninth Circuit Court of Appeals in its Silveira v. Lockyer decision.
The Second Amendment 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.”
Judge Reinhardt's contrived decision begins by arguing that the well regulated
militia of the Amendment’s first clause refers only to the members of a well
trained and organized official state army and not the whole body of the people
as many individual rights supporters claim. He tells us that James Madison’s
first draft of the Amendment contained an exemption from military service
for conscientious objectors. “Accordingly, the exemption from bearing arms
for the religiously scrupulous can only be understood as an exemption from
carrying arms in the service of a state militia, and not from possessing
arms in a private capacity."
While he agrees that “the people” refers to an individual right, he claims
that the word "bear" is a term used only for the military use of a firearm
and therefore only protects military firearms when used by active members
of the militia. He claims that the term was never used for the private or
defensive use of firearms.
The judge was probably unaware that, by the time it was debated on August
17, 1789 in the House of Representatives, the first part of the proposed
amendment had been changed to read "A well regulated militia, composed of
the body of the people, being the best security of a free state." It would
seem that the judge might have been wrong when he said no one at the time
considered a well regulated militia to be composed of the body of the people.
Of course the majority of the members of the United States House of Representatives
who approved that wording could have been wrong.
In reference to his claim that the term "bear" was only used for military
service it is interesting to read the Pennsylvania Constitution written before
the Bill of Rights in 1776. "That the people have a right to bear arms for
the defense of themselves and the state." Perhaps the people of Pennsylvania
should have read the Ninth Circuit’s decision before they chose the language
for their constitution.
The arguments used to deny the citizens of California their Constitutional
rights are clearly in error, but our Supreme Court could not find four judges
who were willing to hear the appeal of Silveira.
Stephen Erwin is Executive Director of the Judicial Amendment Coalition, a non-profit corporation registered to lobby Congress for the Judicial Accountability Amendment.