Archive for the 'Second Amendment' Category

I don’t often cite, link or quote Charles C.W. Cooke because he’s an atheist and often at odds with my world and life view.  It isn’t so much that I won’t link to someone who doesn’t agree with me in every aspect of life, so much as it causes a fundamental difference in the framework in which we operate and I end up having to qualify, caveat, and explain the subtle or not-so-subtle differences.

This is an exception.

Given the way the Second Amendment is written, it is perhaps unsurprising that the confusion came to pass. Indeed, in 1880, the great scholar Thomas Cooley all but anticipated it in what was likely the most widely read legal textbook of the era. “It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia,” Cooley noted in his General Principles of Constitutional Law. “But this,” he explained, “would be an interpretation not warranted by the intent.”

The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose.

[ … ]

Indeed, to be cognizant of the history is to arrive at one clear and unmistakable conclusion: that the “collective right” theory is just nuts. As a 1982 Senate report on the meaning of the Second Amendment concluded bluntly, it is “inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.”

That word, “inescapable,” is a good one, for it is simply impossible to review the post-Revolution era and come away with the impression that the Second Amendment protects some convoluted state-led right. Even if we ignore that the word “people” is used in the self-evidently individual protections that surround the Second Amendment — and even if we ignore that James Madison proposed to insert the “right to bear arms” next to the other individual rights listed in Article I, Section 9, and not next to the militia clause in Article I, Section 8, clause 16 — a brief audit of contemporary interpretations tells us all we need to know.

It may seem remarkable to modern sensibilities, but it was not at all unusual in the 19th century to read politicians and scholars openly worrying that the people might be left unable to remove their government should the course of human events run sour. In Letters from the Federal Farmer 53, Richard Henry Lee proposes that “to preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike, especially when young, how to use them.” You will notice, I assume, that Lee’s purpose in hoping that “the whole body of people always possess arms” is “to preserve liberty” rather than, say, to “defend the country” or to “prevent domestic insurrection.” That matters a great deal, demonstrating as it does that we are talking here about something other than a proto–National Guard.

Lee’s view was neither outré nor limited to his particular anti-Federalist worldview. On the contrary: His assumptions were echoed across the political spectrum and throughout the century that followed. Explaining the unamended Constitution in the Pennsylvania Gazette in February 1788, the Federalist Tench Coxe celebrated that “the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.” A year later, in the course of endorsing the proposed Bill of Rights, Coxe confirmed that the Second Amendment was designed not to protect the nation, the states, or the federal government, but to protect the people: “Whereas civil-rulers,” he wrote, “not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.” It would, of course, be preposterous to suggest that such a rebellion would be carried out under the auspices of a federal government that enjoyed plenary power over the militias

He begins with the usual focus on militia (usual for most commentators on the second amendment) and the utility and uses of peaceful carry.  But eventually he reaches the apex of his argument, and I am in total agreement with it.

We need to see the use of the term militia in the context of the time in which this was written.  The notions that a man had a right to weapons, or that he also had the right to overthrow his government if it was guilty of tyranny, were so widely accepted as to be pre-theoretical.  Thus, the notion that the right had to be codified in order for it to be understood or accepted is preposterous.

On the other hand, all the founders needed in order to object to federal control over such God-given rights is to find a single example of such an infringement that would be found unacceptable.  The militia served as this example.  That doesn’t mean that it is, would have been, or must have been, the only example or reason for the amendment.  The amendment clearly states what the FedGov shall not do, not what it can or may do or the sole reasons for its existence.

So a man has a right to the ownership of weapons if he is a paraplegic and unable to serve in the militia.  A people have the right to overthrow their government whether there is such a thing as a militia or not.  I can tell the militia (whatever that is in this context or any future context) to go pound sand and that I refuse to join, and it has nothing whatsoever to do with either [a] my God-given rights to keep and bear arms for self defense or the amelioration of tyranny, or [b] the fact that that right is recognized in the constitution, which is a covenant under which we have agreed to live.

My rights (and duties) flow from the Almighty, the very fountain of liberty.  The constitution is a mere covenant.  The Bolsheviks should tread carefully.  Breakage of that covenant means more than they think it means.  To them I say, be careful what you ask for.

The Washington Post, by three sociologists.

We’re now at a point when Americans are killed or injured in a mass shooting almost every month; by some definitions, almost every day. Despite this, resistance to stricter gun control in the United States remains fierce.

As researchers of religion, we know the power of religious identities and beliefs. And so we wondered: How does Christian nationalism influence Americans’ attitudes toward gun control?

In our newly published and freely available study, the connection between Christian nationalism and gun control attitudes proves stronger than we expected. It turns out that how intensely someone adheres to Christian nationalism is one of the strongest predictors of whether someone supports gun control. One’s political party, religiosity, gender, education or age doesn’t matter.

[ … ]

But what is Christian nationalism?

Christian nationalism is an ideology that argues for an inseparable bond between Christianity and American civil society. It goes beyond merely acknowledging some sincere religious commitments of the Founding Fathers.

Rather, Americans who subscribe to Christian nationalism believe that America has always been ― and should always be ― distinctively Christian in its national identity, sacred symbols and public policies. What’s more, for adherents to this ideology, America’s historic statements about human liberties (e.g., the First and Second Amendments) are imbued with sacred, literal and absolute meaning.

I happen to be trained in theology at the graduate level.  This may be the most stolid analysis I’ve ever read, and the lack of theological training of the academicians undermines and renders useless the study they have published.

There are a number of category errors in this commentary, and at the risk of sounding too much like Gordon Clark, I recommend that these folks retake their course work in logic, and specifically that they study Aristotle’s Logic and Metaphysics before tackling some more difficult texts in systematic theology like Hodge, Warfield, Calvin, Shedd and Turretin.

Seriously, this is a supremely dense run of prose and it’s almost impossible to know where to begin.  But let’s try anyway.

God is no respecter of persons or countries or tribes.  That’s over.  He is the creator of the universe and calls all men to account and all governments to His holy law.  It is equally wicked for America, Russia, China, South Africa or any other country to enact gun control schemes.  Indeed, all gun control is wicked.

The Bible does contain a few direct references to weapons control. There were many times throughout Israel’s history that it rebelled against God (in fact, it happened all the time). To mock His people back into submission to His Law, the Lord would often use wicked neighbors to punish Israel’s rebellion. Most notable were the Philistines and the Babylonians. 1 Samuel 13:19-22 relates the story: “Not a blacksmith could be found in the whole land of Israel, because the Philistines had said, “Otherwise the Hebrews will make swords or spears!” So all Israel went down to the Philistines to have their plowshares, mattocks, axes, and sickles sharpened…So on the day of battle not a soldier with Saul and Jonathan had a sword or spear in this hand; only Saul and his son Jonathan had them.” Nebuchadnezzar king of Babylon also removed all of the craftsmen from Israel during the Babylonian captivity (2 Kings 24:14). Both of these administrations were considered exceedingly wicked including their acts of weapons control.

Defense of home and hearth is not just a duly recognized right in the Holy Scriptures, it is a solemn duty, something the Almighty expects of men because men are made in His image.  The second amendment is not given from God.  God didn’t write the constitution, the constitution is a covenant between men.  It has blessings and curses for obedience and breakage, respectively, just like any covenant.  It is the agreement under which we have concurred to live together, and that agreement includes the right and duty not only of self defense and defense of family, but the amelioration of tyranny.  It was understood that way by the founders.

Jesus, who wasn’t the Bohemian hippie flower child pacifist he’s made out to be in contemporary culture, demanded that His followers find weapons themselves.  It’s important to remember that this command involved disobedience to the state.  Jesus’ command involved civil (and if necessary, violent) disobedience, thus forcing his followers to become criminals if they followed His command.

… for some evidence, see Digest 48.6.1: collecting weapons ‘beyond those customary for hunting or for a journey by land or sea’ is forbidden; 48.6.3.1 forbids a man ‘of full age’ appearing in public with a weapon (telum) (references and translation are from Mommsen 1985). See also Mommsen 1899: 564 n. 2; 657-58 n. 1; and Linderski 2007: 102-103 (though he cites only Mommsen). Other laws from the same context of the Digest sometimes cited in this regard are not as worthwhile for my purposes because they seem to be forbidding the possession of weapons with criminal intent. But for the outright forbidding of being armed while in public in Rome, see Cicero’s letter to his brother relating an incident in Rome in which a man, who is apparently falsely accused of plotting an assassination, is nonetheless arrested merely for having confessed to having been armed with a dagger while in the city: To Atticus, Letter 44 (II.24). See also Cicero, Philippics 5.6 (§17). Finally we may cite a letter that Synesius of Cyrene wrote to his brother, probably sometime around the year 400 ce. The brother had apparently questioned the legality of Synesius having his household produce weapons to defend themselves against marauding bands. Synesius points out that there are no Roman legions anywhere near for protection, but he seems reluctantly to admit that he is engaged in an illegal act (Letter 107; for English trans., see Fitzgerald 1926).

“Christian Nationalism,” whatever that does or doesn’t mean, has no more to do with this than my dog.  Moreover, if I were a betting man, I wager that God is quite unhappy with America at the moment.

Any nation whose leaders usurp the power and throne of the Almighty by rendering the family and church powerless, which murders more than 70 million babies, which robs from men and women by the power of a badge and gun to redistribute wealth (wealth that God ordains will be redistributed by families and churches), that exists solely based on usury and debt, and which seeks omniscience through spying on its own people, cannot and will not be long blessed by God.

The researchers are counseled to learn theology so that we can keep the length of this essay to a minimum rather than attempt to repair the fault lines in their theoretical framework.

No one I know, and likely no one you know, believes that God handed down the second amendment or anything else contained in the constitution.  This dumbing down of thoroughgoing and full-orbed world and life views into jingoistic nonsense and word salads is insulting and worthless.

There are reasons that Christians believe in the ownership of weapons, and they have nothing whatsoever to do with belief in Christian nationalism.  God may decide to demolish this country on a bed of rocks with a mere breath, and if He does, we’ll have to start over.  Either way, His holy law stands forever as immutable truth because it is based on his immutable character, and the degree to which He blesses any such new country will be a direct linear function of obedience to His holy law.

To the “researchers.”  Go back to school and learn something.

Ammoland:

His views could be critical if and when SCOTUS hears a case challenging state bans on what they pejoratively term “assault weapons.” It still doesn’t get us to a birthright “to keep and bear … ordinary military equipment … that … could contribute to the common defense,” but it’s a better starting place than a court with many of the previous “Republican” picks on the bench (case in point: John Paul Stevens).

David is relatively pleased, or at least, satisfied under the circumstances.  We could do a lot worse than Kavanaugh.  I grok the sentiment, even though I am troubled at his views on the Fourth Amendment.  Very troubled.

As commenter Michael observed, “[As] Far as I’m concerned, a “loss” on a fourth-amendment case is a loss for the second amendment as well.”

He is a mixed bag.  But at least it’s not William Pryor, or at least inasmuch as we can judge at the moment.  I may have more to say about William Pryor later.  His views could be summarized as “If someone knocks on the door, leave your guns in the drawer, lay down on the floor and beg for mercy from intruders because it could be a cop and they’re special and you’re not.  Their safety is paramount.”

William Pryor is a swine.  Let’s pray that Kavanaugh doesn’t turn out to be that as well.

So tonight Trump made his selection known.  It’s Judge Brett Kavanaugh.  I’m sure there will be much more to come on this, but here are some initial thoughts.

Jacob Sullum at Reason did a very good expose on him, and finds that he is supportive of second amendment rights, but not so much for the fourth amendment.

Kavanaugh seems to take a narrower view of Fourth Amendment rights. In 2010 he dissented from the D.C. Circuit’s decision not to rehear a case in which a three-judge panel had ruled that police violated a suspected drug dealer’s Fourth Amendment rights when they tracked his movements for a month by attaching a GPS device to his car without a warrant. Kavanaugh rejected the idea that the tracking constituted a search because of the quality and quantity of information it collected, although he anticipated the argument that ultimately persuaded a majority of the Supreme Court: that the physical intrusion required to plant the tracking device amounted to a search.

That rationale would not support invoking the Fourth Amendment in cases where information is collected without trespassing on someone’s physical property, as when police use cellphone location records to figure out where a suspect was at particular times on particular dates. Last month the Supreme Court ruled that looking at such data is a search, meaning it generally requires a warrant.

Kavanaugh also dissented in a 2008 case involving a man named Paul Askew, who was stopped by D.C. police because his clothing was similar to an armed robber’s. The cops patted Askew down for weapons, as permitted under the 1968 Supreme Court ruling in Terry v. Ohio, but found nothing. Later they unzipped his coat, supposedly to facilitate an eyewitness identification, and found a gun.

The D.C. Circuit concluded that police went too far when they unzipped Askew’s coat and that the gun, which became the basis for a weapons charge, should not have been admitted as evidence against him because it was the product of an illegal search. Kavanaugh disagreed, saying unzipping the coat could be justified as “an objectively reasonable protective step to ensure officer safety” after Askew “actively resisted” the pat-down or because “police may reasonably maneuver a suspect’s outer clothing—such as unzipping a suspect’s outer jacket—when, as here, doing so could help facilitate a witness’s identification at a show-up during a Terry stop.”

So we shouldn’t expect him to side against a SWAT team, for instance, and in favor of a victim of home invasion by a SWAT team, as long as a judge signed a warrant and officer safety was paramount.

Frankly, it sounds as if he is in the same mold as Alito, who never saw a police action he didn’t approve.

Also, while this may sound odd, regardless of the second amendment cases currently percolating through the lower courts, I am hopeful that the SCOTUS doesn’t hear one until there is another reliable 2A Justice on the Supreme Court.  Raymond Kethledge is just such a judge (although it could certainly be the case that he never makes it on to the SCOTUS).

A bad decision by the SCOTUS on gun rights is worse than no decision, and I trust neither Roberts nor Alito.  As for the NFA (and class 3 weapons), the GCA and the Hughes Amendment, that will have to be handled legislatively.  Don’t look to the courts to undo that those abominations.

In the mean time, remember that the Supreme Court cannot confer or remove rights.  Only God can remove what God has granted, and in the case of RKBA, it is based on His immutable nature and will, inasmuch as it involves the protection of that which is made in His own image.  It will never change.

Always look to the fountain and spring of your rights, never to the vicissitudes of man’s feelings or the machinations of the state.

UPDATE: Dave Kopel has a very incisive and lengthy article on Kavanaugh up at Reason.  Here is his summary paragraph.

Judge Kavanaugh’s text, history, and tradition methodology for Second Amendment cases will not please people who believe that all gun control is impermissible, nor will it please advocates who want to make the Second Amendment a second-class right.

I believe that all gun control is constitutionally impermissible.  And this doesn’t make me happy.  On the other hand, he won’t make the gun controllers happy either.  If you ponder for a moment on the kind of judge Trump is likely to nominate, it would be someone just like this.  Trump believes that it is within the purview of the ATF to unilaterally ban bump stocks with no legislative action, as well as sundry other infringements.

Repeal of the NFA, GCA and Hughes Amendment will require legislative remedy.  The judiciary won’t do it.  Yet Kavanaugh won’t be a reliable gun control vote on the Supreme Court, so this is a partial victory in that he won’t be in the camp with Ginsburg and Breyer.

UPDATE #2: The thought occurs to me that if you believe in the so-called “war on drugs,” or a war on anything on American soil, you either [a] have never been to war and know nothing about what it’s like (my son has been to war) and are still willing to weigh in on something completely beyond your comprehension, or [b] you have been to war and are perfectly fine with this sort of thing being perpetrated on the American people.

In the first case, you’re an imbecile whose views are worthless.  In the second case, you are a sociopath.

TTAG, from a cop:

Not all police are bad, mind you. Some truly fight hard and are on our side. But you, the People of the Gun, need to understand why Miami Beach happened.

Just like the civil rights movement of the 1950s and 1960s and the gay rights movement of the 1990s and 2000s, gunowners need to continually fight for their rights. Sometimes the end result will be what we saw in Miami Beach.

The fight, however, is the same: opposing oppressive authoritarians restricting the civil liberties and rights of honest, law-abiding Americans. We can’t hide in the shadows. We need to be open, loud, and stand strong in the face of this kind of intimidation.

Read the whole thing.  There’s a lot there.  Rather than fisk this entire article, I think it would be better to turn it over to readers to do that.

However, I’ll make one observation.  Lumping us in with other alleged civil rights groups like gay rights is insulting.  The right to keep and bear arms is a right granted by God and merely recognized in the constitution.  Other such rights may or may not exist and you can make your case for or against them.

But we’re not just a group of malcontents bent on recognition.  God has decreed and ordained that we should be victorious because what we do is based not on marches and protests, but entirely on the immutable Holy Writ.

NAE:

Dear Mr. President:

As evangelical leaders representing tens of thousands of local churches, campus communities, and ministries we are concerned that the new “zero tolerance” policy at the U.S.-Mexico border, recently announced by Attorney General Sessions and being implemented by the Department of Justice and the Department of Homeland Security, has had the effect of separating vulnerable children from their parents. As head of the Executive Branch of the federal government, we are writing to ask you to resolve this situation of families being separated that you have rightly described as “horrible.”

As evangelical Christians guided by the Bible, one of our core convictions is that God has established the family as the fundamental building block of society. The state should separate families only in the rarest of instances. While illegal entry to the United States can be a misdemeanor criminal violation, past administrations have exercised discretion in determining when to charge individuals with this offense, taking into account the wellbeing of children who may also be involved.

A “zero tolerance” policy removes that discretion—with the effect of removing even small children from their parents. The traumatic effects of this separation on these young children, which could be devastating and long-lasting, are of utmost concern.

U.S. law currently allows individuals with a credible fear of persecution to request asylum whether the individual enters with a valid visa, requests asylum at a port of entry, or is apprehended seeking to enter without a visa. Not every individual arriving will merit asylum protection, but we would ask that families be kept together while ensuring each individual asylum seeker is afforded due process according to our laws.

We are also concerned that there are fewer legal possibilities for those with a well-founded fear of persecution to be considered for refugee status without needing to make it to the U.S. border. The U.S. Refugee Resettlement Program has allowed many fleeing persecution in Central America and elsewhere to register as refugees abroad and be thoroughly vetted before coming lawfully to the U.S. However, with significantly fewer refugees being admitted in recent years, there are fewer options for those fleeing persecution. Those facing legitimate threats to their lives often feel they have no choice but to leave their countries and seek asylum elsewhere.

We respectfully ask you to work with Attorney General Sessions and Secretary Nielsen to reverse this “zero tolerance” policy and instead urge law enforcement entities to exercise discretion to protect the unity of families.

This is what happens when spiritual “leaders” no longer believe in the applicability of God’s law to individuals.  The state becomes responsible for everything, including administering grace rather than justice.  No mention is made of the fact that illegals are law-breakers.

And this is what happens when the church “leaders” no longer believe in the power of the Holy Scriptures to effect world-wide change.  It becomes anemic and powerless.  Thus church “leaders” begin to meddle in the affairs of state and turn globalist rather than focus on the preaching and teaching of the Word of God.

Say, you don’t suppose all of this will have any effect on second amendment rights, do you?

Demand:

Show me the study that proves arming citizens makes them safer. I’ll wait. In the meantime, why don’t you vote for the red flag laws that are being debated today. When the fatalities decline you get to look like a hero. #GunReformNow

Dude.  We don’t have guns in order to make you or anyone else “safer.”  We have guns for the amelioration of tyranny.

Counterdemand:

Show me a study that demonstrates you or anyone else will be successful in disarming us?  I’ll wait.  In the mean time, mind your own damn business, jerk.

Jacob Sullum at Reason:

Ten years ago this week, the Supreme Court for the first time explicitly recognized that the Second Amendment protects an individual right to armed self-defense. Since then the Court has revisited the subject only twice, while it has heard about 45 cases involving the Fourth Amendment and about 60 involving the First.

That stark disparity reflects a failure noted by critics on and off the Court. After waiting more than two centuries to acknowledge that the Second Amendment imposes limits on legislation, the Court has passed up dozens of opportunities to clarify the extent of those limits, leaving the task to lower courts that are often hostile to gun rights.

District of Columbia v. Heller, decided on June 26, 2008, overturned a handgun ban in the nation’s capital, finding it inconsistent with the Second Amendment right to use firearms for self-defense. Two years later, the Court overturned a similar law in Chicago, confirming that the Second Amendment constrains states and cities as well as the federal government.

Aside from those two landmark decisions, the Court has enforced the Second Amendment in just one case. In 2016 it ruled that the Supreme Judicial Court of Massachusetts had flouted Heller when it upheld that state’s ban on stun guns based on the mistaken premise that the Second Amendment applies only to militarily useful weapons that were in common use when it was enacted.

That is far from the only time a court has reached a conclusion that seems inconsistent with what the Court has said about the Second Amendment. “Most federal judges have not accepted Heller,” Alan Gura, the lawyer who argued the case, recently told Tom Gresham on the radio show Gun Talk. “They have taken the posture of ‘go ahead and make me do it.'”

Well, there are two things at work here.  First, regular readers know that I consider the Heller decision to be weak.  Scalia did an awful job with it focusing on self defense, when we know full well that isn’t the framework in which the second amendment should be interpreted.

The conversation would clarify a great deal (and get off of the “well regulated” part) if it focuses on the overthrow of tyranny rather than self defense.  Then “well regulated” can be seen in the proper context, i.e., well regulated and calibrated firearms which the shooters knew how to use.

Scalia left an opening as wide as my truck for the controllers to drive through.  Furthermore, his statement that their ruling doesn’t amend the obviously necessary rules for prohibitions in certain sensitive locations (my wording) doesn’t help in the least.

Then there is the issue of recalcitrant judges who don’t care about the constitution or God-given rights.  McDonald was a “make-me-do-it” case, just as other such cases following have been.  And no one has made them do it yet.  It’s still impossible to get a concealed handgun permit in Hawaii, New York or New Jersey.

For these recalcitrant judges, the best solution is for them to be treated as the traitors they are.

Via WRSA.  Bad things.  That’s what.

Before the 1945 Soviet occupation of Romania, the people had the right to own guns. I remember my father telling me his dad owned a double barreled shotgun he used to hunt rabbits with as well as a Luger picked from the retreating German troops (German soldiers were getting rid of all their military equipment by simply throwing it out of the troop transport trains).

When the communists took power in 1949 following falsified elections, the first law they enacted was total gun  confiscation (for the greater good of course).Then after they made sure the population was disarmed they started the arrests, imprisonments, reeducation camps and killings.  So practically since 1949 it was illegal to own any firearms in communist Romania.

Then there is this very important observation.  Listen carefully dear men.

After so many years of restrictions and servitude for over two generations, the perception of the Romanian population about gun rights changed in worse; I must admit when I first came to the US I too was surprised to see how owning guns is something normal and affordable and I too believed guns in the hands of untrained people can be dangerous (and keep in mind I served 2 years in the military so I was familiar with firearms).

After so many years of war and occupation the overwhelming majority of the people were sick and tired of the war so they believed what the propaganda of the new regime was telling them. They were lied that the government will protect them, that guns must be surrendered for their own safety, that since the war is over there is no need for guns anymore.

I’ve made the same observation before, albeit thankfully without first hand knowledge.

Every single one of the genocides in the twentieth century – every … single … one – from Hitler to Stalin to Pol Pot to Idi Amin to the Turkish Ottoman Muslim extermination of the Armenian Christians, was preceded by gun confiscations.

Nothing good ever comes from surrendering your firearms.  The founders knew that and gave us the 2nd amendment – if we can keep it.  And again, make careful note that reeducation and propagandizing is all part of the larger strategy for subduing the American culture to the wishes of the controllers.