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Supreme Court Binds Second Amendment to States

Posted by iusbvision on June 28, 2010

It is about time.  What is disturbing is that four justices voted no. This goes to show what is happening to the courts; that, especially among the left, there are fewer and fewer great legal minds and rather they are little more of nothing more than political votes.

http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf

The decision gives a long and brilliant explanation how gun laws and gun rulings that the left has held up as holy were in fact used to prevent black Americans from having the ability to defend their own life, property and freedom with effective means.  History has shown us repeatedly and philosophers and statesman have said for centuries that the definition of a free man is one who bears arms, one who cannot is a slave and/or a subject.  The historical case for this is so completely overwhelming that it is proper to say that gun control laws are inherently racist and it is impossible to advocate for a disarmed public and not be a racist. [By the way, if you look at the dissent you will notice that the half-baked attempt at a legal argument was the same argument against the Bill of Rights that were used to justify Jim Crow Laws and slavery in the South. States rights arguments are important, but are invalid against Amendments 1 through 8 which is what the 14th Amemdment was all about. Ron Miller has a nice post on this subject HERE.   – Editor]

The historical case from the slavery perspective starts on page 26 of the ruling. Another historical case is from page 42-46. To take away the right to bear arms is to effectively rule that one has no right to defend ones own life or freedom and that one’s life and freedom is only intact by the whim of the state. If I have offended you gun banner types by stating the overt racism such a view represents than TOO BAD. History is what history is, reality is what reality is, power is what power is and freedom is what freedom is. If you do not want such a view associated with the overt racism it represents than change your view because the case made by history is crystal clear. Some of that proof is stated below.

Let us face facts, look at people like Supreme Court nominee Elana Kagan who has written that government should decide what speech is good for society and her compatriots on the court have taken the position that there is no right of self-defense. Kagan and those like her, it is safe to infer, would repeal the Constitution by judicial fiat if allowed to. Disagree? Engage us in debate in the comments section below and make your case. I dare you to try. By the way, just to show you how subversive and completely upside down with reality such people are;  Kagan once compared the National Rifle Association to the KKK. The NRA has stood up for the constitutional rights of minorities for as long as recent memory extends.

Cherry Quotes:

“Self-defense is a basic right, recognized by many legal systems from ancient times to the present”

Explaining that “the need for defense of self, family, and property is most acute” in the home, ibid., the Court found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” id., It thus concluded that citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.”

Heller also clarifies that this right is “deeply rooted in this Nation’s history and traditions,” Glucksberg, supra, at 721. Heller explored the right’s origins in English law and noted the esteem with which the right was regarded during the colonial era and at the time of the ratification of the Bill of Rights. This is powerful evidence that the right was regarded as fundamental in the sense relevant here. That understand-ing persisted in the years immediately following the Bill of Rights’ratification and is confirmed by the state constitutions of that era,which protected the right to keep and bear arms. Pp. 19–22.

A survey of the contemporaneous history [in Heller] also demonstrates clearly that the Fourteenth Amendment’s Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation’s system of ordered liberty. Pp. 22–33.

After the Civil War, the Southern States engaged in systematic efforts to disarm and injure African Americans, see Heller, supra, at ___. These injustices prompted the 39th Congress to pass the Freedmen’s Bureau Act of 1866 and the Civil Rights Act of 1866 to protect the right to keep and bear arms. Congress, however, ultimately deemed these legislative remedies insufficient, and approved the Fourteenth Amendment. Today, it is generally accepted that  Amendment was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act. See General Building Contrac-tors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 389.

In Congressional debates on the proposed Amendment, its legislative proponents in the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Evidence from the period immediately following the Amendment’s ratification confirms that right was considered fundamental. Pp. 22–31.

Despite all this evidence, municipal respondents argue that Members of Congress overwhelmingly viewed §1 of the Fourteenth Amendment as purely an antidiscrimination rule. But while §1 does contain an antidiscrimination rule, i.e., the Equal Protection Clause,it can hardly be said that the section does no more than prohibit dis-crimination. If what municipal respondents mean is that the Second Amendment should be singled out for special—and specially unfavor-able—treatment, the Court rejects the suggestion. The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored

Citing Jewish, Greek, and Roman law, Blackstone wrote that if a person killed an attacker, “the slayer is in no kind of fault whatsoever, not even in the minutest degree; and is therefore to be totally acquitted and discharged, with commendation rather than blame.” 4 W. Black-stone, Commentaries on the Laws of England 182 (reprint 1992).

After the Civil War, many of the over 180,000 African Americans who served in the Union Army returned to the States of the old Confederacy, where systematic efforts were made to disarm them and other blacks. See Heller, 554 U. S., at ___ (slip op., at 42); E. Foner, Reconstruction: America’s Unfinished Revolution 1863–1877, p. 8 (1988) (hereinafter Foner). The laws of some States formally prohibited African Americans from possessing firearms. For example, a Mississippi law provided that “no freed-man, free negro or mulatto, not in the military service ofthe United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie knife.” Certain Offenses of Freedmen, 1865 Miss. Laws
p. 165, §1, in 1 Documentary History of Reconstruction 289 (W. Fleming ed. 1950); see also Regulations for Freedmen in Louisiana, in id., at 279–280; H. R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 233, 236 (1866) (de-scribing a Kentucky law); E. McPherson, The Political History of the United States of America During the Period of Reconstruction 40 (1871)

Throughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias,forcibly took firearms from newly freed slaves. In the first session of the 39th Congress, Senator Wilson told his colleagues: “In Mississippi rebel State forces, men who were in the rebel armies, are traversing the State, visiting the freedmen, disarming them, perpetrating murders and outrages upon them; and the same things are done in other sections of the country.” 39th Cong. Globe 40 (1865). The Report of the Joint Committee on Reconstruction—which was widely reprinted in the press and distributed  by Members of the 39th Congress to their constituents shortly after Congress approved the Fourteenth Amend-ment19—contained numerous examples of such abuses.See, e.g., Joint Committee on Reconstruction, H. R. Rep.No. 30, 39th Cong., 1st Sess., pt. 2, pp. 219, 229, 272, pt. 3, pp. 46, 140, pt. 4, pp. 49–50 (1866); see also S. Exec. Doc.No. 2, 39th Cong., 1st Sess., 23–24, 26, 36 (1865). In one town, the “marshal [took] all arms from returned colored soldiers, and [was] very prompt in shooting the blacks whenever an opportunity occur[red].”

Disarmament by bands of former Confederate soldiers eventually gave way to attacks by the Ku Klux Klan. In debates over the later enacted Enforcement Act of 1870, Senator John Pool observed that the Klan would “order the colored men to give up their arms; saying that everybody would be Kukluxed in whose house fire-arms were found.” Cong. Globe, 41st Cong., 2d Sess., 2719 (1870); see also H. R. Exec. Doc.No. 268, 42d Cong., 2d Sess., 2 (1872).

Abolitionists and Republicans were not alone in believing that the right to keep and bear arms was a fundamental right. The 1864 Democratic Party Platform complained that the confiscation of firearms by Union troops occupying parts of the South constituted “the interference with and denial of the right of the people to bear arms in their defense.” National Party Platforms 1840–1972, at 34.

The most explicit evidence of Congress’ aim appears in§14 of the Freedmen’s Bureau Act of 1866, which provided that “the right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens . . . without respect to race or color, or previous condition of slavery.” 14 Stat. 176–177 (emphasis added).22 Section 14 thus explicitly guaranteed that “all the citizens,” black and white, would have “the constitu-tional right to bear arms.”

On Page 33 the Court shows [with some of the information I just quoted above – Editor] that the post civil war civil rights laws that were directly intended to protect the rights of blacks and explicitly protected their right to keep and bear arms were insufficient and those who passed the 14th Amendment explicitly stated that the passage of Amendment 14 settled the issue that black Americans have the same right to keep and bear arms for defense of life, liberty and property.

In debating the Fourteenth Amendment, the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Senator Samuel Pomeroy described three “indispensable” “safeguards of liberty under our form of Government.” 39th Cong.Globe 1182. One of these, he said, was the right to keep and bear arms:

“Every man . . . should have the right to bear arms for the defense of himself and family and his home-stead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretched-ness will forever remain complete.” Ibid. Even those who thought the Fourteenth Amendment unnecessary believed that blacks, as citizens, “have equal right to protection, and to keep and bear arms for self-defense.” Id., at 1073 (Sen. James Nye); see also Foner 258–259.25

Evidence from the period immediately following the ratification of the Fourteenth Amendment only confirms that the right to keep and bear arms was considered fundamental. In an 1868 speech addressing the disarmament of freedmen, Representative Stevens emphasized the necessity of the right: “Disarm a community and you rob them of the means of defending life. Take away their weapons of defense and you take away the inalienable right of defending liberty.” “The fourteenth amendment, now so happily adopted, settles the whole question.”Cong. Globe, 40th Cong., 2d Sess., 1967. And in debating the Civil Rights Act of 1871, Congress routinely referred to the right to keep and bear arms and decried the continued disarmament of blacks in the South. See Halbrook, Freedmen 120–131. Finally, legal commentators from the period emphasized the fundamental nature of the right. See, e.g., T. Farrar, Manual of the Constitution of the United States of America §118, p. 145 (1867) (reprint1993); J. Pomeroy, An Introduction to the Constitutional Law of the United States §239, pp. 152–153 (3d ed. 1875).

The right to keep and bear arms was also widely protected by state constitutions at the time when the Fourteenth Amendment was ratified. In 1868, 22 of the 37 States in the Union had state constitutional provisions explicitly protecting the right to keep and bear arms. See Calabresi & Agudo, Individual Rights Under State Constitutions when the Fourteenth Amendment was Ratified in 1868: What Rights Are Deeply Rooted in American His-tory and Tradition? 87 Texas L. Rev. 7, 50 (2008).26 Quite a few of these state constitutional guarantees, moreover,explicitly protected the right to keep and bear arms as an individual right to self-defense.

One Response to “Supreme Court Binds Second Amendment to States”

  1. Paul Geer said

    Silly me, I thought the Second Amendment was already binding to the states. I’m glad to see that the Supreme Court still agrees.

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