This article was printed from KeepAndBearArms.com.
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The Current Situation The right of Americans to keep and bear arms is
year by year being whittled away into nothingness. The enemies of the right to
keep and bear arms behave as if the Constitution's Second Amendment did not
exist. At this time, in individual states and in the U.S. Congress, laws are
passed which ban, register, control the sale of, and limit ownership of
firearms, all in contradiction to the Second Amendment. Indeed, proponents of "gun control",
whose agenda would more accurately be described as total civilian disarmament,
insist that the Second Amendment is a "state's right". Or they say
"It refers only to the militia, which nowadays is the National Guard".
Or they even say that—despite hundreds of years of North Americans privately
owning guns and almost 200 years of U.S. citizens privately owning guns—the
individual right to own arms does not exist. This has happened because gun owners have
acquiesced to "reasonable" gun control laws, which in turn led to
irksome laws, then to onerous laws, and now to a furious onslaught against every
aspect of the gun culture. The motive behind those pushing the anti-gun crusade
seems to range from complete ignorance of historically proven societal benefits
of an armed citizenry to a desire for one world government, the establishment of
which demands the disarmament of U.S. citizens reluctant to join in such a
scheme. In any case, their agenda need not concern us at the moment. It is one
particular prerequisite of their agenda—the gutting and/or elimination
of the Second Amendment—that we must focus upon. The Losing Strategy We can, year after year, fight existing laws
piecemeal, only to have similar but re-worded laws passed to replace them. We
can, year after year, muster together in our cities and states and fight by
political means the hundreds of proposed new laws, winning some and losing some.
We can, year after year, donate millions of dollars to the NRA and to
politicians, though both have agendas that often do not coincide with the clear,
unfettered exercise of the Second Amendment. But it is obviously a losing
strategy, since over the last few decades we have steadily lost ground. The reasons for this are many. They include the
effect of anti-gun propaganda generated by the government and communications
media, and the failure of increasingly socialized, urbanized, history-illiterate
citizens to understand the importance of an armed citizenry in maintaining
freedom. Also included is the fact that the largest gun-rights organization, the
NRA, has no courts-related strategy for regaining our lost rights, or even
maintaining the status quo. Their plan, and the plan of the gun community in
general, is the tactical non-plan of simply reacting to the assaults of
the anti-gun forces. Another reason our current piecemeal strategy
doesn't work is that it costs a politician nothing to craft a new anti-gun law
and put it up for a vote—year after year. Gun owners, however, must spend time
and money and effort every time they do this, year after year, and
fatigue sets in. Eventually, the public backlash and political feedback against
proposed laws weakens and the anti-gun law is passed. An Overview of the Problem Gun control laws are what might be referred to
as a "top down" problem. That is, the laws attack and eat away at the
hundreds of details associated with keeping and bearing arms, e.g. restrictions
on carry mode, transportation, storage, magazine capacity restrictions, firearm
types, firearm design, etc. In the aggregate these restrictions have in many
parts of the U.S. effectively nullified the Second Amendment. Anti-gunners are able to impose these laws and
keep them in force because of a single fundamental reason: such laws have never
been subject to a clear, direct challenge on the basis of the Second Amendment.
The judicial limbo created by a lack of Second Amendment cases in the Supreme
Court has enabled anti-gun laws to thrive like scum in a stagnant pond. A New Strategy My proposal is this: Challenge in state and
federal court any and all gun control laws on the basis of the guarantee
contained in the Second Amendment. As opposed to the old top down tactics, this
new strategy attacks the problem from the bottom up; that is, it attacks from
the fundamental principle—the Second Amendment. The intent is to lay the foundation
for sweeping away all unconstitutional firearm restrictions. This strategy differs from past tactics in that
it is proactive rather than reactive, and that it places the battle in the
courts rather than in the arena of politics. This is essentially the strategy
successfully used by the liberal/socialist segment of this society to promote
their agenda. Furthermore, it is the best in terms of getting the most for each
dollar spent. What if the NRA, for example, instead of dumping millions of
dollars on politicians to buy their fickle and temporary allegiance, had years
ago begun spending these huge sums in pursuing court cases to protect our
rights? The ACLU knows how the system works and has had great success via the
courts. We can too. We wish the U.S. Supreme Court to rule on the individual
right (that it is not somehow a "state right") aspect of the
Second Amendment; on the "supreme law of the land" aspect of the
Second Amendment (that this right may not be abrogated by state law); and upon
the "militia weapon" aspect of the Second Amendment (that ownership of
firearms of military utility are protected by the Second Amendment). Primary Tactic The immediate goal is for individuals, private
groups, or organizations to file Second Amendment violation lawsuits in every
city and state. By sheer numbers, this will force examination of this issue by
the U.S. Supreme Court. Some cases will be lost in the lower courts where they
are filed, but others will be won, sometimes in areas of law that are completely
unexpected (consider the recent Emerson case in Texas, which may well lead to a
Supreme Court case). Win or lose, the cases will be appealed by one
side or the other and go on to appellate courts. Further appeals will
subsequently generate differing U.S. Circuit court decisions, and these will
lead to Supreme Court cases. Arguments For and Against The most common argument against Second
Amendment based lawsuits is, "What if we lose?" The simplest and
clearest answer is that we have already lost and have nothing else to lose. The
juggernaut coalition of fools, "pacifists", weapon-phobes, utopianists,
one-world statists, and political opportunists—all aided by the western
communications media—have created an anti-gun sentiment of overwhelming force.
Steadily, every year, our gun rights shrink as more and more laws are passed. By means of state and federal legislation,
every fundamental principle relevant to the Second Amendment has been
violated—freedom to bear arms in public, government permission to own or
carry, firearm transport, bullet design, firearm storage, firearm style/design,
magazine capacity, arbitrary designation as a "destructive device",
waiting periods, limits on purchases per month. Every one of these aspects of
gun law establishes a precedent which—unless challenged now--can and
will be expanded upon to virtually eliminate the Second Amendment. For example, if a five-day waiting period is
allowable and good as a "cool down" period, then six days, ten days,
or one month would be better. If a ten-round magazine is reasonable and good
because it supposedly provides an interval in which a lunatic shooter can be
overcome while he reloads, then a five-round magazine, or single shot firearms,
are better. If banning military looking semi-autos is reasonable and good, then
banning all semi-autos—since the difference is merely cosmetic—is
best. And now a new anti-gun campaign has just been
initiated, directed toward owners of scoped .50 BMG caliber rifles. The anti-gun
propagandists intend to whip up a fear frenzy against the rifles by stating that
they can accurately kill a target up to 2,000 yards away. Of course this depends
upon the marksman, but if they succeed in having such firearms banned, the
principle has been established. If being able to shoot someone 2,000 yards away
with a .50 caliber rifle is bad, isn't it really just as bad to be able to shoot
someone 1,500 yards away with a .338 Lapua rifle? And isn't that just as bad,
really, as being able to shoot someone 1,000 yards away with a 7mm magnum, or
800 yards away with a .308? And so on down the line. Again, the bottom line is that, legislatively
speaking, we have already lost the battle of fundamental principles relevant
to keeping and bearing arms. And though we still have limited access to our
firearms, a continuation of current legislative trends will eventually wipe out
the last vestiges of the Second Amendment. That is why we must bore through the upper
layers of legislative morass and reach the bedrock of the Constitution. An Overview of the Supreme Court Situation The good news is that we have the Constitution
on our side. The bad news is that the Supreme Court does not necessarily base
its decisions on Constitutional matters upon the Constitution. They may rule
against us in one or more areas. And yet it is my opinion that (1) they are more
likely to rule for us on the fundamentals, and that (2) it will probably
be just as positive if they rule against us. Therefore, the
important thing is that they make a decision. The basis of my opinion concerning the
probability of the Supreme Court ruling positively on all three aspects of the
Second Amendment mentioned is that we have a huge body of history, tradition,
founders' documents, and actual case law on our side. This is especially true regarding the issue of
the Second Amendment referring to an individual right. The history, tradition,
founders' documents are all well known to most gun rights activists and are well
documented in books such as That Every Man Be Armed, by Stephen P.
Halbrook. As for case law, past Supreme Court cases which
mention or include the Second Amendment as referring to an individual right
are Robertson v. Baldwin, 165 U.S. 275, 282, (1897); Twining v. New Jersey, 211
US 78 (1908); Powell v. Alabama, 287 US 45 (1932); Grosjean v. American Press
Co., 297 US 233, (1936); Gideon v. Wainwright, 372 US 335 (1963); Duncan v.
Louisiana, 391 US 166 (1968); Moore v East Cleveland, 431 US 494 (1976) United
States v. Verdugo-Urquidez, 494. U.S. 259, 265 (1990); Planned Parenthood vs.
Casey, (1992). There are several other cases relevant to this
issue. An excellent analysis of the Constitutional factors involved vis-à-vis a
Supreme Court decision on the Second Amendment may be found in Sanford
Levinson's treatise "The Embarrassing Second Amendment", Yale Law
Journal Vol. 99, pp. 637-659. (It is published as a small booklet and it can be
read at http://www.shadeslanding.com/firearms/embar.html) Another very important factor on our side is
millions of armed Americans who have no intention of giving up their personal
right. The likelihood of the Court sweeping aside all
of the above and ruling that the Second Amendment suddenly does not refer to
an individual right would seem to be remote. The issue of the Second Amendment not being the
supreme law of the land, i.e. not being an "incorporated right" such
as freedom of religion, press, speech, etc., all of which states may not
abrogate, is somewhat less certain, but only somewhat. The fact is, the Second
Amendment is worded like other amendments referring to an individual right, is
placed with other individual rights amendments in the Bill of Rights, is
supported as referring to an individual right by the vast majority of scholarly
writings on the subject, and has been treated as referring to an individual
right in past jurisprudence since before the inception of the nation. Further,
any diminishment of the Second Amendment as referring to an individual right
places other individual rights protected by the Bill of Rights in danger of
being similarly eroded or voided by whimsical future rulings. It is doubtful
that the Supreme Court will sweep all of this aside, either. Finally, the "militia" issue—that
is to say, the principle that citizens are the militia and have the right to
own military type weapons, would seem to be the most obviously supportable
of all. After all, the Second Amendment specifically mentions the militia as a
paramount reason for citizens to keep and bear arms. Further, founders'
writings, history, tradition, and an utterly clear definition in U.S. Code of
the militia as being comprised of ordinary citizens all support our side. It has been asked, "Well, what if the
Supreme Court upholds this militia issue strictly? Might we not end up with a
situation in which only male U.S. citizens between the ages of 17 and 45 and
female members of the National Guard may keep and bear arms, and the only arms
they may keep and bear are military rifles firing military ammunition?" This is absurd on its face. To begin with, the
Second Amendment states "…the right of the people to keep and bear
arms…". It does not state "…the right of the militia to
keep and bear arms…". The militia is merely the reason cited for
protecting the people's right to keep and bear arms, and the word
"people" used in the Bill of Rights is unambiguous. Second, in this day and age the Supreme Court
is not going to make any ruling that forbids women, but not men, to exercise a
basic right. And third, as for the Court deciding that
Americans can only own militarily useful firearms, the fact is that virtually
every sort of firearm—revolvers, pistols, shotguns, submachine guns, semi-auto
rifles and carbines, and scoped and un-scoped bolt-action rifles, and high
capacity magazines for those firearms that utilize magazines—are, or have
been, used by the military. What is left to be banned? Is the Worst Case Scenario Actually Bad? But let us assume that the Supreme Court--in
defiance of morality, history, tradition, Constitution, and case law—rules
that the Second Amendment does not mean what it says. In my opinion it will be
better for this to happen sooner rather than later. The more time
that passes, the more time there is for the government and the communications
media to propagandize against guns. As more time passes, more people will become
habituated to loss of rights; more younger people, ignorant of American and
world history due to spending time in government (public) schools, will reach
voting age; more older people, for whom country and Constitution are meaningful
and worth fighting for, become infirm or pass away. The tide seems to be turning
against government school indoctrination, but for the foreseeable future the
government has the upper hand in the sheer number of children it indoctrinates. Another point: there are an estimated 80 to 100
million gun owners in the United States. The number of gun owners actively
engaged in defending the right to keep and bear arms is only a fraction of this
number. A negative Supreme Court ruling on the Second Amendment would give a
sharp, wakening slap in the face to all the gun owners who have done nothing in
the fight for gun rights. The idea of 80 to 100 million people suddenly becoming
a motivated political bloc does not strike us as a negative development. That
many people agitating against a government which has just abrogated a
fundamental right can, in short order, effect a reversal of government policy. And finally, a negative Supreme Court ruling on
the Second Amendment will serve notice to all Americans that the fundamental
charter of the land is not worth the paper it is printed on, and that the
social, political, and legal compact which has held this country together for
over two centuries and has made it the greatest nation in history is broken. Any
illusions about the direction the political/financial elite wishes the United
States of America to take will be shattered. Many—and it will not take that
many-- will then be ready and willing to take up arms to restore a
Constitutional United States of America. Whether such an armed conflict, indeed even a
civil war, is preferable to America's accelerating slide into oppressive
socialism and eventual submission to a world government is up to each individual
to decide. What you can do to move this plan forward NOW Fortunately, actions which will push this plan
forward to completion are simple, relatively inexpensive, can be taken NOW, need
not be coordinated with any person or any organization, and need not be reported
back to any person or organization. Additionally, they may produce a side
benefit of eliminating local anti-gun ordinances and causing some legal
financial pain to any government entity that has abrogated your civil firearms
rights. Your action—done by yourself or in
conjunction with any group of supporters you wish to include—is to file a
lawsuit based on the Second Amendment's guaranteed right to keep and bear arms.
Such suits should be filed against any and all statutes or ordinances
that infringe upon your right to keep and bear arms. While it might seem best to file them in
"conservative" jurisdictions where there is a better chance of leaping
the lower court hurdle, the fact is that if the pro-Second Amendment case wins
at this level, the government will appeal. If the pro-Second Amendment case loses at this level—as may be expected in most cases—we then have the
opportunity to move up to the next level on appeal, which is just as productive
in terms of the ultimate goal of Supreme Court review. In any event, it is
our duty as citizens to make continued attacks in all jurisdictions upon these
unconstitutional laws. This is because the absence of any resistance
whatsoever normalizes and eliminates the cost—in time, money, and
resources—of governmental abrogation of our rights. The cost to initiate such legal actions is
small. The cost to pursue them varies per case, and as it progresses, one may
wish to request financial support from gun owners, pro-gun organizations,
foundations, etc. The Lawyers Second Amendment Society and Guntruths.com intend
to provide a forum for such requests. It is vital to remember that history shows
that it is impossible to predict which particular court case will end up
before the Supreme Court, no matter how small or how tangential in context. For anyone who is hesitant to take on this
legal battle, I urge you not to make the grave mistake of waiting for some
"authority" or some "official" person or organization to
file these suits This attitude leads to procrastination, loss of motivation, and
failure. The saying "If you want something done, do it yourself" is
perfectly applicable here. I further urge you not wait for some
"expert" to pass judgement on this strategy. In this situation, with
so many factors and variables involved, there are no experts. Read this
article again, if necessary, and decide for yourself. Rest assured that the
surest path to failure is if you do nothing. For those who wish to file suit, you should
consider utilizing the text of the Emerson case in Texas as a model for
your claim. To view this case, go to: http://www.txnd.uscourts.gov/
and click on "Notable Cases." It is easy to read and understand
even for a layman. Additionally, I suggest that you (1) utilize an attorney
experienced in state and/or federal level litigation, and (2) locate a court
with judges likely to rule in our favor. If the above items are not possible I
say file the case anyway. The alternative is to do nothing, which will get
you nothing. The worst that can happen is that you will end up before an
unfriendly judge who will rule against you no matter how good a case you place
before him, in which case you appeal. Your appeal may end up before a
favorable appellate judge. In any event, lower court decisions mean little
these days in terms of setting a legal precedent. It is in the appeals
courts that the stakes are raised and we are shooting for Supreme Court review,
which in our situation is the only one that really matters any more--win or
lose. For anyone who is fearful of the troubles that
engaging in this fight will bring on, I ask you, will you allow your birthright
as an American to be so easily erased, to be legislated into oblivion by the
collusion of a few weak-minded socialists? If so, we have become pathetic
shadows of the men who created this nation and the awesome document outlining
its government. For those who complain that it is too expensive
to fight this legal battle, I say that it is best to fight now, when the cost is
merely money and a little time, than to wait until the cost of overturning the
wretched police state planned for us must be paid in blood and lives. |
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