From: ICE
Subject: SNET: [piml] 2nd Amendment Gets An Unexpected Boost
Date: 10 Apr 1999 03:46:04 -0400
To: "ICE Bucket":@returns.egroups.com@world.std.com;
-> SNETNEWS Mailing List
>From: "Them"
>Subject: Fw: Judge Cummings' decision in general media
>http://www.washtimes.com/opinion/op1.html
>
"That every man be armed"
By Kenneth Smith
It wasn't long after the Boston Tea
Party that
the British decided they better
disarm those
uppity American colonists to keep
them from
spilling blood rather than tea
leaves. Parliament
banned exports of muskets and
ammunition to
the colonies and sent British
soldiers, led by
General Gage, to seize their weapons and
ammunition. The colonists rudely
resisted this
early brand of gun control and, at
Lexington and
Concord, used those weapons to
express their
displeasure.
. . . . This history lesson comes
courtesy of a
federal district judge in Lubbock,
Texas, who
this month cited these and other
events in this
country's past to arrive at the
remarkable
conclusion that the Second Amendment
appears
to mean what it says: that the
Constitution gives
individual Americans the right to
keep and bear
arms. Sorting through American
jurisprudence
and burgeoning Second Amendment
literature in
law journals, Judge Sam Cummings held
that
while the right is not absolute, it
nonetheless
exists and cannot be wished away, no
matter
how embarrassing it is to modern
sensibilities.
. . . . Historical examination of the
amendment,
supported by analysis of its text,
Mr. Cummings
wrote, ''bears proof that that right
to bear arms
has consistently been, and should
still be,
construed as an individual right.''
. . . . Mr. Cummings came to his
conclusion
after hearing the case of a Texas man
named
Timothy Joe Emerson involved in a divorce
with his wife Sacha. She had obtained a
temporary restraining order --which Mr.
Cummings describes as essentially a
form order
frequently used in Texas divorce
proceedings --
enjoining him from conducting certain
kinds of
financial transactions or from
threatening or
actually attacking her during the
proceedings.
. . . . In what President Clinton and his
supporters have forever dismissed as
a he-said,
she-said standoff, Mrs. Emerson
claimed that
during a phone conversation her husband
threatened to kill a man with whom
she was
alleged to be having an affair. There
was no
evidence presented to support the
claim, and the
court made no findings. But the court
issued the
restraining order, and Mr. Emerson
was later
indicted for possession of a firearm
while under
a restraining order, a federal offense.
. . . . Mr. Emerson filed suit
charging that the
law violated, among other things, his
Second
Amendment rights. Government lawyers
sought
to dismiss the case on grounds that
it is "well
settled," that the amendment protects
a state's
rights to bear arms in, for example,
National
Guard units and not the rights of
individual
citizens to bear arms.
. . . . Almost from the beginning of
his more than
30-page opinion, Mr. Cummings was
skeptical
of the government's case. If the Founding
Fathers had meant to protect a
state's rights, he
said, the amendment should have read
not: "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"; but
instead: "the right of the States
shall not be
infringed." The plain language of the
amendment, he wrote, shows the
subordinate
clause was meant not to qualify the
right, but to
show why the right must be protected.
Besides
the Supreme Court ruled a few years
ago that
the people cited in the Second
Amendment are
the same people --not states -- cited
in the other
amendment that make up the Bill of
Rights.
. . . . This reading of the amendment is
consistent with the historical
record, Mr.
Cummings said. As early as 690 A.D.
Englishmen were required to possess
arms and
to serve in the military, and the
English Bill of
Rights codified the individual right
to bear arms
in 1689. This tradition informed the
colonists
own views. Mr. Cummings took note of
a 1640
Virginia statute that required all
"masters of
families to furnish themselves and
all those of
their families which shall be capable
of arms . .
. with arms both offensive and
defensive."
. . . . Without that right, wrote Mr.
Cummings,
the colonists never could have won the
Revolutionary War. When they drew up
the U.S.
Constitution, they wanted that right
in there to
protect them from political
corruption and
governmental tyranny. James Monroe
proposed
the right to keep and bear arms be
treated as a
basic human right and included in the
Constitution. Writing in Federalist
No. 46,
James Madison mocked European despotisms
he described as "afraid to trust the
people with
arms." Said Patrick Henry, "The great
object is
that every man be armed . . .
[e]veryone who is
able may have a gun."
. . . . Samuel Adams argued that the
Constitution
"be never construed to authorize
Congress to
infringe the just liberty of the
press, or the rights
of conscience; or to prevent the
people of the
United States, who are peaceable
citizens, from
keeping their own arms." When it came
time to
take up the Bill of Rights, the
Senate turned
down a motion to add the phrase "for the
common defense" after the words "to
keep and
bear arms."
. . . . In his Commentaries on the
Constitution,
Joseph Story wrote, "The right of the
citizens to
keep and bear arms has justly been
considered
as the palladium of the liberties of
a republic;
since it offers a strong moral check
against the
usurpation and arbitrary power of
rulers; and
will generally, even if these are
successful in
the first instance, enable the people
to resist and
triumph over them."
. . . . Is it possible that, whatever
the views of
the Framers, enforcement of the Second
Amendment would be imprudent because the
social costs of doing so would be too
high?
There is, after all, plenty of murder
and mayhem
in this society without allowing
everyone to arm
himself. But there are social costs
to other
amendments protecting the likes of
free speech
(racial vitriol) and the rights of
criminal
defendants (allowing criminals to go
free).
. . . . The same people now posing a
cost-benefit of analysis of the Second
Amendment, said Mr. Cummings, wouldn't
dream of applying it to the rest of
the Bill of
Rights. He quotes approvingly the
remarks of
Justice Antonin Scalia that while
Americans
may now tolerate the elimination of
the right to
bear arms, no one should pretend that
it is not a
reduction of rights.
. . . . The right to bear arms is not
unequivocal.
Felons don't enjoy it because
criminal conduct
has put them outside the class of
law-abiding
citizens who enjoy full civil rights.
But the
statute under which Mr. Emerson was
indicted
means that someone can lose his Second
Amendment rights not because he has
committed
some wrong in the past, said Mr.
Cummings, but
merely because he is involved in a
divorce
proceeding. "It is absurd," he said,
"that a
boilerplate state court divorce can
collaterally
and automatically extinguish a
law-abiding
citizen's Second Amendment rights."
. . . . The Supreme Court has not had
much to
say about Second Amendment rights in
recent
years. So this case may be the test
for which
advocates on both sides of the issue
have been
looking. Gun-control supporters are
confident
higher courts will side with them. If
they do,
according to Mr. Cummings, they will
have to
overturn centuries of English and
American
jurisprudence, to say nothing of
Monroe, Henry
and Madison.
Kenneth Smith is deputy editor for The
Washington Times editorial page.
------------------------------------------------------------------------
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