"F*ck the South"

[Steve Schear]

At 12:40 PM 11/22/2004, Tyler Durden wrote:

>A hilarious rant. You can hear this guy's anger ain't just for show, 
>too--> www.fuckthesouth.com
>
>-TD
>
>Fuck the South. Fuck 'em. We should have let them go when they wanted to 
>leave. But no, we had to kill half a million people so they'd stay part of 
>our special Union. Fighting for the right to keep slaves - yeah, those are 
>states we want to keep.
>
>And now what do we get? We're the fucking Arrogant Northeast Liberal 
>Elite? How about this for arrogant: the South is the Real America? The 
>Authentic America. Really?
>
>Cause we fucking founded this country, assholes. Those Founding Fathers 
>you keep going on and on about? All that bullshit about what you think 
>they meant by the Second Amendment giving you the right to keep your 
>assault weapons in the glove compartment because you didn't bother to read 
>the first half of the fucking sentence?

The Mother Jones article link to by this article spouts the same 
gun-control BS that the liberal press repeats ad nauseam day in and day 
out.  "Regarding the second broad question of individual versus 
state-militia rights, the Court held in its 1939 United States v. Miller 
decision that individuals have in effect no right to keep and bear arms 
under the amendment, but only a collective right having "some reasonable 
relationship to the preservation or efficiency of a well-regulated 
militia." Lower courts have consistently applied the Miller decision in 
upholding various gun-control laws over the years. "

Not quite.

Recent History
The story begins with the National Firearms Act of 1934, which was the 
first federal law regulating firearms. Prior to that time, it was generally 
believed that the Constitution did not grant the federal government this 
power. The Firearms Act levied a prohibitive $200 dollar tax on machine 
guns and sawed off shotguns. Government officials claimed that these were 
the weapons of choice for the criminal gangs that evolved during prohibition.

This law was enacted during a period when a determined effort was being 
made to expand federal police power at the expense of the states. A crafty 
legislative tactic of that time was to construct new federal criminal laws 
as commerce measures, which could be justified as revenue producers in the 
event they were challenged by supporters of state's rights. Some have 
speculated that the 1934 Firearms Act was passed to provide job security 
for federal agents who were threatened with unemployment by the repeal of 
alcohol prohibition in 1933.

Like most criminal cases, U.S. v. Miller involved some unsavory characters. 
Jack Miller, a bank robber and moonshiner with many enemies, felt the need 
to carry a sawed off shotgun without paying the tax. He and his associate, 
Frank Layton, had the misfortune to be caught transporting it from Oklahoma 
to Arkansas and were arrested in June of 1938 by federal agents on charges 
of violating the Firearms Act.

They were brought before United States District Court Judge Heartsill Ragon 
in Fort Smith, Arkansas who encouraged them to plead not guilty and 
appointed an attorney to represent them. He then found in their favor, 
declaring that the relevant section of the Firearms Act was in violation of 
the Second Amendment and therefore unconstitutional.

Federal law enforcement authorities were not pleased. Judge Ragon's 
decision threatened the expansion of federal power, so the case was quickly 
appealed to the Supreme Court. Jack could not afford legal representation 
and died of gunshot wounds before the hearing date. His co-defendant Frank 
Layton apparently decided he wasn't interested in defending his or our 
rights under the 2nd and took four years probation.

That a Supreme Court case could be decided without the court hearing both 
sides of the argument seems bizarre. Yet this was the perfect opportunity 
for advocates of greater federal power to advance their agenda. With no 
opposition, they could not lose. Despite the lack of defendant 
representation the opinion, written by Justice James Clark McReynolds, was 
notable in that it did not completely cave in to the government demands. 
The resulting decision issued in May of 1939 stated that "in the absence of 
any evidence" the Supreme Court could not say that a sawed off shotgun had 
any relationship to the militia.

The critical point here is the absence of evidence. Of course that was 
literally correct, since Miller's side never showed up in court. If there 
had been a N. R. A. Miller might very well have gone differently. After 
stating the court's opinion, McReynolds included passages from various 
historical sources to show that the militia consists of all able-bodied men 
who have a right, perhaps even a duty, to own firearms suitable for 
military service. There was little reason to include these references 
unless McReynolds wished to protect the Amendment from further encroachment.

The case was returned to the lower court where Miller, if living, could 
have made further arguments on his own behalf. He could have easily and 
correctly argued that short-barreled shotguns had been popular military 
weapons in the trenches of the First World War. It was lucky for the 
federal government that he was dead.

Still, the decision set off alarm bells in D.C. Federal prosecutors 
couldn't wait to weaken Miller. In Cases v. U.S. in 1942 they found their 
opportunity. The robed ones didn't see a straightforward way to eviscerate 
Miller. Instead they accepted many of the ruling's conclusions, but tried 
to draw a fence around it application "However, we do not feel that the 
Supreme Court in Miller was attempting to formulate a general rule 
applicable to all cases."

"In view of this, if the rule of the Miller case is general and complete, 
the result would follow that, under present day conditions, the federal 
government would be empowered only to regulate the possession or use of 
weapons such as a flintlock musket ... But to hold that the Second 
Amendment limits the federal government to regulations concerning only 
weapons which can be classed as antiques or curiosities -- almost any other 
might bear some reasonable relationship to the preservation or efficiency 
of a well regulated militia unit of the present day -- is in effect to hold 
that the limitation of the Second Amendment is absolute."

"Another objection to the rule of the Miller case as a full and general 
statement is that according to it Congress would be prevented by the Second 
Amendment from regulating the possession or use by private persons not 
present or prospective members of any military unit, of distinctly military 
arms, such as machine guns, trench mortars, anti-tank or anti-aircraft 
guns, even though under the circumstances surrounding such possession or 
use it would be inconceivable that a private person could have any 
legitimate reason for having such a weapon."

Right, what legitimate reason does Steve Schear have for keeping a fully 
armed tank in their back yard? While this certainly seems reasonable to 
most citizens, was this type of limitation intended when the Framers 
drafted the 2nd?

Does Original Intent still matter?
According to Mr Lessig's analysis of Supreme Court judicial conduct, 
"Translating Federalism: United States v Lopez," one of the challenges 
faced by those attempting to interpret the Constitution is that there has 
been a qualitative change in the depth of understanding of common citizens 
regarding the "fictions" and "conventions" that underlie it. He cites de 
Tocqueville, following his early 1800s U.S. tour, to support the assumption 
that "The government of the Union rests almost entirely on legal fictions. 
The Union is an ideal nation which exists, so to say, only in men's minds 
and whose extent and limits can only be discerned by the understanding. 
Everything in such a government depends on artificially contrived 
conventions, and it is only suited to a people long accustomed to manage 
its affairs, and one in which even the lowest ranks of society have an 
appreciation of political science."

The system is not fundamentally different, in this sense, from baseball: 
For no one would say that baseball is just the rules of the game; more than 
the rules, it is the understandings of those rules, and the practices that 
they envision, that constitute the knowledge necessary to play the game. 
But what happens when this "diverse knowledge and discernment" disappear? 
When these "artificially contrived conventions" lapse, how does a 
constitutional regime respond? More particularly, how does written 
constitution survive when the "fictions" upon which it rested indeed become 
fiction? His answer is not very well.

This is the distinctive feature of constitutionalism in America. It is not 
that conventions and understandings behind the constitutional text 
disappear; it is that they change. They change both in their substance, and 
in their location: They not only direct different readings of the 
constitutional text, but they are possessed, or understood, no longer by 
"the common people," instead by a constitutional elite lawyers, law 
professors, and members of government. The distinctive problem of American 
constitutionalism is how to read this constitutional text, when these 
understandings are fundamentally different from what they were. The result 
of this erosion of common understanding is that the Supreme Court swings, 
sometimes wildly, between two poles Mr. Lessig calls "orginalism" and 
"texturalism".

Originalism attempts to maintain fidelity and articulate these previously 
understood conventions, and apply them today to assure that the 
constitutional structure original established is, so far as possible, 
preserved. The effort, we could say, is to translate that original 
structure into the context of today. Texturalism is less focused on 
fidelity. Its method is more direct. It simply reads a text according to 
relatively simple rules of interpretation, finding that understanding of 
the text that is most compelling in the current context. It doesn't worry 
whether that current reading is the original reading. It aims simply at 
finding a reading that coheres best with what is now understood to be the case.

Though many of today's citizens and judiciary are most comfortable with a 
texturalistic interpretation, in my view only an originalistic reading is 
acceptable. Texturalism is a slippery slope which encourages a "make it up 
as you go along" ethic. It is in just this situation we find ourselves in 
today regarding the 2nd Amendment.

Our Radical Beginnings
 From the Declaration of Independence the right of individuals to overthrow 
their governments when THEY feel that it has been enshrined. While some 
might insist that Constitutional Amendments or massive civil unrest is the 
only legitimate means of achieving fundamental change, I would remind you 
that only a relative minority of American Colonials took an active part in 
the Revolution. Even Lincoln, watching the storm clouds approach over 
secession, recognized this right for violent overthrow.

"Whenever they shall grow weary of the existing Government, they can 
exercise their constitutional right of
amending it or their revolutionary right to dismember or overthrow it."
-- First Inaugural Address (available at 
http://www.bartleby.com/124/pres31.html)

"Any people anywhere, being inclined and having the power, have the right 
to rise up, and shake off the existing
government, and form a new one that suits them better. This is a most 
valuable,---a most sacred right---a right,
which we hope and believe, is to liberate the world. Nor is this right 
confined to cases in which the whole people
of an existing government, may choose to exercise it."
(Speech in the United States House of Representatives, Jan. 12, 1848)

Back to the Future
You or I certainly couldn't consider overthrowing our government by force 
with a pistol, rifle or shotgun. The robed ones understood this clearly in 
Cases. If the rule of the Miller case were to stand as a full and general 
statement "... Congress would be prevented by the Second Amendment from 
regulating the possession or use by private persons not present or 
prospective members of any military unit, of distinctly military arms, such 
as machine guns, trench mortars, anti-tank or anti-aircraft guns, even 
though under the circumstances surrounding such possession or use it would 
be inconceivable that a private person could have any legitimate reason for 
having such a weapon. It seems to us unlikely that the framers of the 
Amendment intended any such result."

The Justices knew this assertion against individuals possessing the right 
and the means for violent overthrow to be historically false. I suspect 
they saw acceptance of a plain reading of the 2nd as tantamount to a 
suicide pact. Accordingly they adopted a textural interpretation.  As the 
comedian Lenny Bruce was fond of saying, "In the halls of justice, the only 
justice is in the halls."

So, where we sit now is that we have an implied right to overthrow our 
government by violence but the planning or possession of the effective 
means is a felony. From my perspective an acceptance of the original intent 
of the Framers and complete reversal of Miller/Cases is in order. But I'm 
not holding my breath. Both the liberal and conservative poles in our 
political spectrum routinely seek to obtain "plain readings" of those 
Amendments they support and textural interpretations of those they abhor. 
Only by a full and complete reading of all Amendments can we all truly hope 
to attain the rights and protections afforded under our great system of 
laws. If some of these laws have become outdated or culturally problematic, 
do not weaken our system by interpreting them away. Use the Amendment 
process. That's what its there for.

(I have submitted a piece similar to this to the NYT and other press but I 
doubt their editorial bias will incline them to ever publish it.)

Steve Schear

P.S. If still doubt the basis of my arguments I point you to "The 
Embarrassing Second Amendment," by professor Sanford Levinson 
http://www.shadeslanding.com/firearms/embar.html