The court must take very careful aim at Second Amendment
Clearly with an eye toward his superiors on the high court, Silberman did not in his decision claim the Second Amendment serves to ban any government restriction of the individual right to keep and bear arms. Drawing analogy to the First Amendment's language (the amendment most often cited by more liberal jurists as the embodiment of individual rights against the restrictive power of the government), Silberman noted that both amendments may be held subject to "reasonable restrictions.” The First Amendment guarantees freedom of speech, but it does not shield the irresponsible shouting of "Fire!" in a crowded theater. Similarly, the Second Amendment's language guaranteeing the fundamental, pre-existing right to "keep and bear arms" for self-defense is subject to reasonable limitations by government.
As noted by Silberman, drawing also on the historical notion of the "militia" as a citizen-based — not a government-based — self-defense entity, the Second Amendment must be held to guarantee to the individual citizen the right to possess those sorts of "arms" commonly and reasonably employed by a "citizen army"; namely, rifles and pistols. Importantly, however, the judge recognized in his opinion that the same reasoning underlying the conclusion that the amendment in fact guarantees an individual right to possess firearms, may — indeed should — be read to allow government to prohibit possession or restrict use of weapons not commonly or reasonably employed for self-defense. Thus, weapons employed collectively, as by a government armed service, such as cannon or other weapons of mass destruction, might properly be restricted.
Likewise, and also cognizant of the desire by many Supreme Court justices to find solid middle ground, Silberman's opinion recognized that government may also limit the manner in which an individual might exercise his or her inherent right to possess a firearm. Thus, for example, the "state" (that is, the "government") might restrict concealed carry of a firearm, as many states and the District of Columbia have done. However, if the government entity places such onerous restrictions on the exercise of the right as to render it meaningless — as the District of Columbia did with its draconian 1976 gun-control ordinance — then it has impermissibly deprived the citizenry of a right guaranteed in the Bill of Rights.
Whether one owns firearms or not — or ever intends to — the Silberman opinion in the D.C. gun-ban case should be a must-read for anyone wishing to understand what the Bill of Rights was, is and was intended to be. All who support the fast-disappearing freedoms guaranteed within its four corners should hope fervently that the Supreme Court of the United States will, before it adjourns next summer, render a similarly sound and supportive opinion in the case Silberman has so masterfully served up”.
*******
THE BOTTOM LINE: I recognize that I am considered an extremist especially in this area, however that being said, I would like to ask you to think outside the box and challenge this common line of thought concerning a “Living Constitution” by asking the question: don’t you think that the framers thought about yelling fire in a crowded theater? I mean there certainly was fire in those days as well as theaters. Moreover, if that were an issue of law, wouldn’t they have made an exception in the first Amendment to cover such a case?
My challenge is that they did think of it as a non-Issue, because of common responsibility. In other words because we have the right of unfettered speech documented by the First Amendment, I can only assume that the framers recognized that if one would yell fire in a crowded theater and as a result someone was injured or killed that there would be a responsibility for the action of the false alarm. Put another way, one is already responsible for a deliberate act that would bring about harm or death to an individual or individuals. We should not make a law against the act itself of yelling fire, even if there is no fire. One would simply be responsible for the consequences if any, for exercising, or in this case, abusing ones right of free speech. This should be true in the act of exercising any inalienable right.
We must recognize that any encroachment or infringement on a right nullifies or impugns the right completely and transforms what is left of it into a privilege. Moreover, it then becomes a slippery slope for the destruction of even the privilege. I.e. do you believe that the Framers meant to have an exception for hate speech, which is also now illegal? Again if there were meant to be any exceptions to the right of free speech it would have been duly noted. Surely, they knew about hate 200 years ago. What kind of speech next, will be illegal, until even the privilege is gone? Remember a second, third and subsequent steps are just a repeat of the first. Some politicians already believe that your rights are instead privileges, watch a video by John Edwards where he says that the second amendment is a privilege. This is the result of this first step of illegal infringement upon any of our rights. .
As for the Second Amendment, again the same should apply. The act of making it illegal for anyone to carry a gun is a violation of ones inalienable right as documented by the Amendment to Constitutional Law. For the same reason the framers specifically made it clear that under no circumstances can the right to keep and bear arms be infringed. They knew that if a crime would result from the irresponsible abuse of exercising the right, the individual could, and should be prosecuted for the resulting crime. However, to make it a crime for the simple act of exercising ones right is a crime committed by the legislature, not the citizen.
The liberal left says that the Second Amendment refers only to the collective right and not the individual right. I ask you, how does one have a collective without individuals? You see the liberal socialist mind destroys independence for the sake of the collective. In socialism, there are but a few elites and the central dictator everyone else is a subject to the dictator. The collective protects the dictator and the dictator rules the dependent subjects, there are no independent individuals, therefore no individual rights.
The confusion really lies in the purpose of law. The legislation of law is not and should not be used for the prevention of crime, but instead for punishment of the commission of crime. Passing laws against exercising ones rights is quite simply a de-facto abolishment of liberty. Even one, who has in the past committed a crime, has the basic natural inalienable right to defend his or her own life. And should the occasion arise; the ex-convict should not be prosecuted of a crime unless he or she has in fact abused the right to keep and bear arms by using, or rather abusing the right in the commission of yet another crime. After all, if the individual is still a criminal he or she will obtain a weapon anyway regardless of the law. It is just the nature of the criminal.
By making laws to prevent crime, we are assuming that the purpose of law is the prevention of crime, when a law has never prevented a crime. There are those that believe that we have crime because we do not have enough laws, so we just keep passing more and more laws. However, instead of extinguishing crime, we are extinguishing our freedom and our God given rights.
By passing laws against the exercising of ones rights, we just make criminals out of those that have-not committed a crime.
Remember, criminals do not obey laws; this is incidentally, why we call them criminals…
The following article, is in response to the recent District of Columbia ruling on the D.C. gun ban of 1976, and subsequent resent appeal to the U.S. Supreme court. It is written by former congressman and U.S. Attorney Bob Barr, who practices law in Atlanta and is a board member of the National Rifle Association; www.bobbarr.org. See if you agree with “Mr. Barr” or “de Andréa of The Bottom Line”…
The seventh in a series
The seventh in a series
By BOB BARRPublished on: 11/28/07
— Second Amendment to the Constitution of the United States…
“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.“
“In announcing last week that the U.S. Supreme Court would decide whether a lower-court decision last spring invalidating the District of Columbia's 31-year-old handgun ban should stand, the high court teed up a modern-day "shot heard 'round the world" that may very well define whether freedom retains any life breath in this country.
Since its adoption as part of the Bill of Rights in 1791, the Second Amendment has generated controversy far beyond its short, 27-word length. Yet, surprisingly, in all those 216 years, the Supreme Court has never ruled definitely on the amendment's reach. Does it, as the District of Columbia and a number of federal courts have decided, simply codify a collective right of an organized "militia" to arm itself? Or, as other courts and judges have concluded — including Senior Circuit Judge Laurence Silberman of the federal Court of Appeals for the D.C. Circuit, who wrote the decision in the case the Supreme Court will hear in its current term — does the Second Amendment guarantee the right of an individual to possess firearms for self-defense?
While many modern-era opinions issued by federal courts, including the Supreme Court, are distressingly complex and convoluted, Silberman's published decision is not. His 58-page majority decision is remarkably lucid; legally sound and historically based. It is written for the layperson as well as the law school honors graduate; and, most important, it is written to appeal to the moderate among the Supreme Court's nine.
— Second Amendment to the Constitution of the United States…
“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.“
“In announcing last week that the U.S. Supreme Court would decide whether a lower-court decision last spring invalidating the District of Columbia's 31-year-old handgun ban should stand, the high court teed up a modern-day "shot heard 'round the world" that may very well define whether freedom retains any life breath in this country.
Since its adoption as part of the Bill of Rights in 1791, the Second Amendment has generated controversy far beyond its short, 27-word length. Yet, surprisingly, in all those 216 years, the Supreme Court has never ruled definitely on the amendment's reach. Does it, as the District of Columbia and a number of federal courts have decided, simply codify a collective right of an organized "militia" to arm itself? Or, as other courts and judges have concluded — including Senior Circuit Judge Laurence Silberman of the federal Court of Appeals for the D.C. Circuit, who wrote the decision in the case the Supreme Court will hear in its current term — does the Second Amendment guarantee the right of an individual to possess firearms for self-defense?
While many modern-era opinions issued by federal courts, including the Supreme Court, are distressingly complex and convoluted, Silberman's published decision is not. His 58-page majority decision is remarkably lucid; legally sound and historically based. It is written for the layperson as well as the law school honors graduate; and, most important, it is written to appeal to the moderate among the Supreme Court's nine.
Clearly with an eye toward his superiors on the high court, Silberman did not in his decision claim the Second Amendment serves to ban any government restriction of the individual right to keep and bear arms. Drawing analogy to the First Amendment's language (the amendment most often cited by more liberal jurists as the embodiment of individual rights against the restrictive power of the government), Silberman noted that both amendments may be held subject to "reasonable restrictions.” The First Amendment guarantees freedom of speech, but it does not shield the irresponsible shouting of "Fire!" in a crowded theater. Similarly, the Second Amendment's language guaranteeing the fundamental, pre-existing right to "keep and bear arms" for self-defense is subject to reasonable limitations by government.
As noted by Silberman, drawing also on the historical notion of the "militia" as a citizen-based — not a government-based — self-defense entity, the Second Amendment must be held to guarantee to the individual citizen the right to possess those sorts of "arms" commonly and reasonably employed by a "citizen army"; namely, rifles and pistols. Importantly, however, the judge recognized in his opinion that the same reasoning underlying the conclusion that the amendment in fact guarantees an individual right to possess firearms, may — indeed should — be read to allow government to prohibit possession or restrict use of weapons not commonly or reasonably employed for self-defense. Thus, weapons employed collectively, as by a government armed service, such as cannon or other weapons of mass destruction, might properly be restricted.
Likewise, and also cognizant of the desire by many Supreme Court justices to find solid middle ground, Silberman's opinion recognized that government may also limit the manner in which an individual might exercise his or her inherent right to possess a firearm. Thus, for example, the "state" (that is, the "government") might restrict concealed carry of a firearm, as many states and the District of Columbia have done. However, if the government entity places such onerous restrictions on the exercise of the right as to render it meaningless — as the District of Columbia did with its draconian 1976 gun-control ordinance — then it has impermissibly deprived the citizenry of a right guaranteed in the Bill of Rights.
Whether one owns firearms or not — or ever intends to — the Silberman opinion in the D.C. gun-ban case should be a must-read for anyone wishing to understand what the Bill of Rights was, is and was intended to be. All who support the fast-disappearing freedoms guaranteed within its four corners should hope fervently that the Supreme Court of the United States will, before it adjourns next summer, render a similarly sound and supportive opinion in the case Silberman has so masterfully served up”.
*******
THE BOTTOM LINE: I recognize that I am considered an extremist especially in this area, however that being said, I would like to ask you to think outside the box and challenge this common line of thought concerning a “Living Constitution” by asking the question: don’t you think that the framers thought about yelling fire in a crowded theater? I mean there certainly was fire in those days as well as theaters. Moreover, if that were an issue of law, wouldn’t they have made an exception in the first Amendment to cover such a case?
My challenge is that they did think of it as a non-Issue, because of common responsibility. In other words because we have the right of unfettered speech documented by the First Amendment, I can only assume that the framers recognized that if one would yell fire in a crowded theater and as a result someone was injured or killed that there would be a responsibility for the action of the false alarm. Put another way, one is already responsible for a deliberate act that would bring about harm or death to an individual or individuals. We should not make a law against the act itself of yelling fire, even if there is no fire. One would simply be responsible for the consequences if any, for exercising, or in this case, abusing ones right of free speech. This should be true in the act of exercising any inalienable right.
We must recognize that any encroachment or infringement on a right nullifies or impugns the right completely and transforms what is left of it into a privilege. Moreover, it then becomes a slippery slope for the destruction of even the privilege. I.e. do you believe that the Framers meant to have an exception for hate speech, which is also now illegal? Again if there were meant to be any exceptions to the right of free speech it would have been duly noted. Surely, they knew about hate 200 years ago. What kind of speech next, will be illegal, until even the privilege is gone? Remember a second, third and subsequent steps are just a repeat of the first. Some politicians already believe that your rights are instead privileges, watch a video by John Edwards where he says that the second amendment is a privilege. This is the result of this first step of illegal infringement upon any of our rights. .
As for the Second Amendment, again the same should apply. The act of making it illegal for anyone to carry a gun is a violation of ones inalienable right as documented by the Amendment to Constitutional Law. For the same reason the framers specifically made it clear that under no circumstances can the right to keep and bear arms be infringed. They knew that if a crime would result from the irresponsible abuse of exercising the right, the individual could, and should be prosecuted for the resulting crime. However, to make it a crime for the simple act of exercising ones right is a crime committed by the legislature, not the citizen.
The liberal left says that the Second Amendment refers only to the collective right and not the individual right. I ask you, how does one have a collective without individuals? You see the liberal socialist mind destroys independence for the sake of the collective. In socialism, there are but a few elites and the central dictator everyone else is a subject to the dictator. The collective protects the dictator and the dictator rules the dependent subjects, there are no independent individuals, therefore no individual rights.
The confusion really lies in the purpose of law. The legislation of law is not and should not be used for the prevention of crime, but instead for punishment of the commission of crime. Passing laws against exercising ones rights is quite simply a de-facto abolishment of liberty. Even one, who has in the past committed a crime, has the basic natural inalienable right to defend his or her own life. And should the occasion arise; the ex-convict should not be prosecuted of a crime unless he or she has in fact abused the right to keep and bear arms by using, or rather abusing the right in the commission of yet another crime. After all, if the individual is still a criminal he or she will obtain a weapon anyway regardless of the law. It is just the nature of the criminal.
By making laws to prevent crime, we are assuming that the purpose of law is the prevention of crime, when a law has never prevented a crime. There are those that believe that we have crime because we do not have enough laws, so we just keep passing more and more laws. However, instead of extinguishing crime, we are extinguishing our freedom and our God given rights.
By passing laws against the exercising of ones rights, we just make criminals out of those that have-not committed a crime.
Remember, criminals do not obey laws; this is incidentally, why we call them criminals…
de Andréa
"The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first.” -- Thomas Jefferson
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