Oregon's proposed new class of terrorists

[Tim May]

On Wednesday, May 21, 2003, at 10:57 PM, Lucky Green wrote:
> In United States v. Cruikshank, 92 U.S. 542 (1876), the Supreme Court
> held that:
>
> "The government of the United States, although it is, within the scope
> of its powers, supreme and beyond the States, can neither grant nor
> secure to its citizens rights or privileges which are not expressly or
> by implication placed under its jurisdiction. All that cannot be so
> granted or secured are left to the exclusive protection of the States."
>
> "The right to bear arms is not granted by the Constitution; neither is
> it in any manner dependent upon that instrument for its existence. The
> second amendment means no more than that it shall not be infringed by
> Congress, and has no other effect than to restrict the powers of the
> national government."
>
> As you can see by reading the entire case, the Court held not only that
> the 14th Amendment does not extend the 2nd Amendment to the States, but
> also held that the States are free to regulate firearms at their
> leisure, in effect, the Court held that the 2nd Amendment solely
> constrains Congress from infringing upon the right to keep and bear 
> arms
>
> while leaving the Executive free to infringe upon this right, or deny
> its exercise entirely, at will.

Well, the Supreme Court, like most of U.S. law, is full of 
contradictions.

Any reading of the Bill of Rights shows that it is the _First_ which 
explicitly mentions "Congress shall make no law," not the Second. So 
we're all on the same page, here are the first several articles of the 
Bill of Rights:

--
Amendment I

Congress shall make no law respecting an establishment of religion, or 
prohibiting the free exercise thereof; or abridging the freedom of 
speech, or of the press; or the right of the people peaceably to 
assemble, and to petition the government for a redress of grievances.

Amendment II

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.

Amendment III

No soldier shall, in time of peace be quartered in any house, without 
the consent of the owner, nor in time of war, but in a manner to be 
prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, 
and effects, against unreasonable searches and seizures, shall not be 
violated, and no warrants shall issue, but upon probable cause, 
supported by oath or affirmation, and particularly describing the place 
to be searched, and the persons or things to be seized.

--


So, any convoluted claim in Cruickshank or any of the other 
Reconstruction era decisions that somehow the Second only refers to 
what _Congress_ can do must explain why it is the First which mentions 
Congress while the Second, Third, Fourth, Fifth, etc., and most others 
don't.

(I'm not a Second Amendment scholar. I'd much rather practice shooting 
with night vision goggles than spend time trying to understand what 
some post-Civil War clowns decided. After all, look what Taney ruled on 
just before the War of Secession.)

By the way, I don't think even our current system would tolerate as 
Constitutional an Executive Order banning guns. The language of the 
Second doesn't give the Executive any special power to bypass it. Nor 
can any case be made the Second says "Congress shall make no law..." 
Again, the First has this sloppy language in it, but the second does 
not. (Though it has sloppy language including the useless but 
problematic bit about militias. It would be better if the Second simply 
said "The right of people to keep and bear arms shall not be 
infringed." (Not "the people," just "people." If "the people" is used, 
clarify that it means "individuals," not some weird collective right 
which translates to "the leaders of the people, especially their Jewish 
senators in California, shall have special rights the hoi polloi and 
negroes shall not have.")

(A better case, in terms of overly strict reading, would be that it is 
the _First_ which supposedly allows states and the Executive to ban 
churches, censor the press, etc., as they are not the Congress and the 
First explicitly mentions "Congress shall make no law." I'm not saying 
this would fly, and this was certainly not the intent, but the argument 
you give about the Second applies actually to the First. The Second is, 
in some ways, even more secure than the First, as it has no mention of 
Congress.)

By the way, a meta point, covered elsewhere in the Constitution, is 
that only the _Legislature_ (Congress) can make laws. The Executive 
Branch actually has no power to make laws, no power to ban guns, no 
power to define crimes.

To the extent this is still honored, the Executive branch seeks laws 
from Congress. The President then signs bills or not, and is sometimes 
overridden.

To the extent this is _NOT_ honored, as in the rogue President 
Lincoln's suspension of fundamental rights and as in various Executive 
Orders and Double Secret Confidential Laws since then, most of the 
Executive lawmaking is done at what the political people call "the 
ministerial level." For example, the SEC and FDA and FCC creating laws 
in their ministries.
>

> In their ruling, the Supreme Court of course utterly ignored the
> legislative history of the 14th Amendment which shows that the 14th
> Amendment was put in place precisely to ensure, amongst other civil
> rights, that the newly freed blacks would be able to arm themselves as 
> a
>
> protection from their militarily beaten, but no less racist, white
> neighbors.
>
> Under Cruikshank, Congress may not pass a bill infringing on the right
> of the citizens to keep and bear arms, but a Presidential Executive
> Order that all private citizens are to turn in their guns tomorrow
> passes Constitutional muster. As would any State laws banning any and
> all possession of firearms by civilians.

I don't believe either a Presidential ban or State bans are 
constitutional. Again, it is not the Second which mentions "Congress." 
That honor belongs to the First.

Could Nixon have ordered the NYT shut down when it was criticizing him 
so harshly? Could Clinton have announced that the Second Amendment was 
no longer valid? Could Bush have ordered citizens held in violation of 
the Fifth and Sixth Amendments?

No, in all such cases. Of these examples, only Bush actually did what 
is suggested. He will be judged as harshly as we now judge Lincoln.

I only hope I someday see him tried and punished harshly, along with a 
few hundred of his brownshirts. A special wing at Supermax in Colorado 
needs to be built for these criminals.



--Tim May