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More Second Amendment Sophistry

By Michael P. Tremoglie
Former Philadelphia Police Officer
Submitted by the Second Amendment Police Department

I recently read an article that can only be characterized as revealing. Eric Lichtblau’s column in the LA Times, about the Bush administration’s policies regarding gun ownership, recites the usual DNC litany of complaints about the Bush administration.

However, Lichtblau then quotes a report from the Violence Policy Center. Lichtman writes,

“Gun control advocates said the declaration marked a drastic shift from about 60 years of legal precedent (italics mine), and the Violence Policy Center, in its report Wednesday, charged that Ashcroft's letter was based on "misleading and inaccurate" legal rationale--misquoting Founding Fathers and former attorneys general.”

“The most blatant problem, the pro-gun control group said, was Ashcroft's failure to mention the standing opinion on the issue from the U.S. Supreme Court: a 1939 decision in United States vs. Miller that the Constitution guarantees militias, not individuals, the right to bear arms (once again, italics mine).”

A Supreme Court ruling that guarantees militias not individuals, the right to bear arms? How could this be? If that were the case then nobody would currently own guns--that is only common sense.

I reviewed the citation US v. Miller US Sup CT 1939. Simply put, the case involved a sawed-off shotgun, which was illegal within the statute of the National Firearms Act. It did not mention all guns.

These are excerpts from the majority opinion (all italics are mine):

“The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time”

“Also 'Clauses intended to insure the possession of arms and ammunition by all who were subject to military service appear in all the important enactments concerning military affairs.”

“In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

Is this ruling to be construed as guaranteeing the right to bear arms only to militias not individuals? I would not think so.

Evidence that my interpretation is correct is to be found in the notes to the majority opinion of another Supreme Court case: Printz v. United States. Clarence Thomas, writing for the majority, mentions the Second Amendment, and in his notes refers to the US v. Miller.

Justice Thomas writes:

This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. [n.1] If, however, the Second Amendment is read to confer a personal right to "keep and bear arms," a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections. [n.2]

Justice Thomas’ notes state:

1 Our most recent treatment of the Second Amendment occurred in United States v. Miller, 307 U.S. 174 (1939), in which we reversed the District Court's invalidation of the National Firearms Act, enacted in 1934. In Miller, we determined that the Second Amendment did not guarantee a citizen's right to possess a sawed off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." Id., at 178. The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.

2 Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the "right to keep and bear arms" is, as the Amendment's text suggests, a personal right.

Now I am not a Constitutional scholar or for that matter a lawyer. However, one need not be to interpret these writings.

Apparently, Lichtblau wrote what the Violence Policy Center told him to write. He did not do any fact checking. He could have. After all, I reviewed the citation and I do not have the financial resources available to me that Lichtblau has. He should have asked himself the same question I did.

What about the Violence Policy Center? Are they just ignorant? Are they purposely attempting to deceive the American public and merely using Lichtblau and the LA Times as stooges?

I cannot say. However, one thing is certain--the Violence Policy Center, Eric Lichtblau, and the LA Times have misrepresented the facts of the Supreme Court’s interpretation of the Second Amendment.

Michael P. Tremoglie is a former Philadelphia police officer now a freelance writer working on his first novel. He writes for Front Page Magazine: http://frontpagemag.com/columnists/tremoglie/index.htm.

Also from Michael Tremoglie:

Second Amendment Sophistry
Ignorance of the Left

More on the Deceptive ways of "Violence Policy Center":


Visit the Second Amendment Police Department
Visit the Second Amendment Police Department

 

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