Monday, March 20, 2006

Just to whack the beehive...

Here is a letter I sent to the paper:

In the wake of the tragic shooting deaths of Chicago children resulting from gang crossfire, letters from gun control advocates and opponents flowed into the paper. The debate seemed to miss one basic and unalterable legal fact, however. Left unsaid or misstated was the fact that this is a political and a policy debate, it is not a federal constitutional one. Within the jurisdictional bounds of the 7th U.S. Circuit Court of Appeals, it is settled law that no individual right to gun ownership is protected by the 2nd Amendment and that there is no such "fundamental" right protected by the 14th Amendment. While that may change as precedents are revisited, the law on this question is clear.

The historical origins of the 2nd Amendment are far from conclusive on this question. Firearms in a pre-Industrial Revolution America were made by hand and were quite expensive. For example, individual rights advocates fondly quote Patrick Henry with well-placed ellipses, as he states "the great object is that every man be armed...every one who is able may have a gun." Unfortunately, the excised portion reveals that Henry is referring to the STATE purchasing weapons for militia use: "The great object is that every man be armed.--but can the people to afford to pay for double sets of arms? Every one who is able may have a gun. But have we not learned by experience, that necessary as it is to have arms, and though our assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed?"

The description of the "Magazine" at colonial Williamsburg states that "The night of April 20, 1775, Lieutenant Henry Collins stole toward the capital with a squad of royal marines from the H.M.S. Magdalen anchored in Burwell's Bay on the James River. Their orders, straight from Governor Dunmore, were to empty the arsenal and disable THE MUSKETS stored there. In 1715, the magazine "safeguarded shot, powder, flints, tents, tools, swords, pikes, canteens, cooking utensils, and as many as 3,000 Brown Bess flintlocks--equipment needed for defense against Indians, slave revolts, local riots, and pirate raids."

But the historical discussion is little more than an amusing diversion, because we have the reality of the law. The 7th Circuit, in a 1999 case left undisturbed by a subsequent decision in 2003, stated that "Whatever questions remain unanswered, [the 1939 Supreme Court decision in U.S. v.] Miller and its progeny do confirm that the Second Amendment establishes no right to possess a firearm apart from the role possession of the gun might play in maintaining a state militia." The Morton Grove case, which allowed a local ban to stand, remains good law on the 14th Amendment status of firearm ownership not being a fundamental right.

So the question remains where it should--in the legislative bodies of America, both state and federal. Make your case one way or another, but please, leave the 2nd Amendment out of it.

13 comments:

Anonymous said...

What part of the right of the people to keep and bear arms don't you understand??????????

Rousing Rabble said...

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.

Looks a little different now doesn't it doofus. More to the point, the post is CORRECT as to the CURRENT state of FEDRERAL LAW. So, what part of the 7th Circuit rulings do YOU not understand?

Peter said...

It is remarkable that this (2nd amendment) is still an issue. NEVER has a piece of federal gun legislation been voided as a result of this so-called "right."

It is a policy choice, as I stated. Frankly, I would be much more supportive of rigorous background checks and registration, and importation interdiction rather than bans of a specific weapon.

Anonymous said...

What you have missed is that these children were killed in Chicago. It is against the law for a civilian to possess a firearm in the City of Chicago.

It matters not what any text says. These children died because of criminals, not words. No words could save them regardless of how they are read.

Peter said...

"What you have missed is that these children were killed in Chicago. It is against the law for a civilian to possess a firearm in the City of Chicago."

So? What does that have to do with anything here?

schmidlap said...

It always amazes me that no hot-button issue--not abortion, not the war--generates the immediate and copious responses in the blogosphere that Gun Control does.

It's like they have some kind of massive web scanning program that looks for any new article on the subject, and when it finds it, there is a real time task force who responds.

Anyone have a theory on why this is? It fascinates me.

Anonymous said...

"So? What does that have to do with anything here?" -Peter

In your letter you commented, "In the wake of the tragic shooting deaths of Chicago children resulting from gang crossfire..." and went on to discuss how "this is a political and a policy debate, it is not a federal constitutional one." before going on to provide the history of the 2nd amendment.

In your conclusion you stated, "So the question remains where it should--in the legislative bodies of America, both state and federal." To which I repeat my statement, "It matters not what any text says. These children died because of criminals, not words. No words could save them regardless of how they are read."

It seams that no legislative body has the ability to prevent a criminal from committing a crime. That's not their role. No law, constitution or court ruling helped to protect those children. I thought that's where you started so that is where I ended. That's what it has to do with anything here.

Just out of curiousity, which side of gun control do you believe I fall on?

Peter said...

Just out of curiousity, which side of gun control do you believe I fall on?

I neither know nor care.

Anonymous said...

I guess I don't understand the purpose for this blog. You "whack the bee hive" and run away?

"I neither know nor care." sounds like the republican response to most questions. You haven't been misleading us, have you?

drmagoo said...

I wish I knew, Schmidlap. Actually, I think taxes also get quite a rise out of the browsers.

There's a great Family Guy clip where they show the framers talking about the 2nd Amendment and arguing over whether anyone could ever see it as vague, but then decide that nope, it's clear as day.

Peter said...

Run away? Please.

You posited the tautology of "laws don't prevent crime because criminals break laws." My response was, and is--fine, you are entitled to your opinion, but it is not rationally connected to the point of the post, that legislatures may deal with, or not deal with, this issue as they see fit without federal constitutional strictures. Nowhere did I argue for the efficacy of any such regulation.

If I am missing something from your comment, please explain.

Anonymous said...

Peter, I guess I was confused by your lead in statement and where you went, as if policy could have an effect on random gang violence.

Most all of your blog posts are very linear and to the point. I do enjoy them.

I also could have picked a better name than "anonymous" as the first poster used it as well.

Peter said...

Fair enough, and I have been unduly snarky lately--see Doc Magoo's post above on what to say!

I just think that the 2nd Amemdment is an artificial issue that emotionalizes and obscures the policy questions. And no, banning certain weapons will not halt gang violence, an incredibly complex sociological issue yied up with race, class, economic opportunity and of course the "war on drugs."