Mad Prophet's Sanctuary

Yes, There is Court Precedence for American "Right to Bear Arms"

by Dr. Paul Gallant

From The Journal News, Rockland County, NY


April 9, 2000

"Writer Claims 2nd Amendment Limitation"

Your recent editorial, "Pataki's gun proposal deserves support, but misses criminality", which included the phrase "recognizing the Second Amendment right to possess a weapon", betrays what I contend is an irresponsible ignorance of the U.S. Supreme Court's clear and long-standing rulings on the meaning of that most understood amendment.

In the 1939 case, United States vs. Miller, the U.S. Supreme Court held that "in the absence of any evidence tending to show that possession or use of a (shotgun) 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."

Numerous Supreme Court and federal Appeals Court decisions have upheld the Miller ruling that the Second Amendment right "to keep and bear arms" is a collective right, not an individual one.

If the editors, or anyone else, can show me one U.S. Supreme Court decision since Miller affirming an individual right to bear arms, I will donate $100 in the name of the NRA to that person's favorite charity".

RICHARD KAVESH
Nyack


April 26, 2000; COMMUNITY VIEW

"Yes, There is Court Precedence for American 'Right to Bear Arms' "

Paul Gallant

When our Founding Fathers drew up the Bill of Rights, one of those enumerated and guaranteed to "the people" as a check against government tyranny was the Second Amendment - the "right to keep and bear arms".

So where's the logic in the ongoing contention by recent letter-writer Richard Kavesh that one right, among all the rest, would apply only to the "state", and not to individual Americans?

To bolster his specious claim that the Second Amendment exists solely to arm "the militia", Kavesh has repeatedly offered up in letters to the Journal News the 1939 Supreme Court case of U.S. v. Miller. In fact, nowhere does the Court's opinion in Miller explicitly state that the Second Amendment does - or does not - guarantee an individual right.

But since Kavesh demands a post-Miller Supreme Court opinion on the Second Amendment's protections, we can simply skip the question of whose interpretation of Miller is the correct one, and look at what Constitutional scholar David B. Kopel has to say on the subject.

In a paper entitled "The Supreme Court's Thirty-Five OTHER Gun Cases: What the Supreme Court Has Said about the Second Amendment", Kopel points out that, besides Miller, the Supreme Court has mentioned the Second Amendment in a host of other cases.

Those cases have yielded twenty-six Supreme Court opinions - including 19 majority opinions - which treat the Second Amendment as a right of individual American citizens. Five of these come from the present Rehnquist Court where there has been no disagreement that the Second Amendment guarantees an individual right.

Just a few examples: In Duncan v. Louisiana (1968), Justices Black and Douglas stated that the Fourteenth Amendment's "privileges and immunities" clause should be read to include everything in the first eight Amendments: "To these privileges and immunities...should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press...the right of the people peaceably to assemble and petition the Government for a redress of grievances; the right to keep and bear arms;..."

In U.S. v. Verdugo-Urquidez (1990), the Supreme Court stated that "the people" as protected in the Second Amendment is the same "people" cited in the First, Fourth, Ninth, and Tenth Amendments.

In Spencer v. Kemna (1998), Justice Stevens noted: "An official determination that a person has committed a crime may cause two different kinds of injury. It may result in tangible harms such as imprisonment, loss of the right to vote or to bear arms....". As Kopel points out, a person can only lose a right upon conviction if that person had the right before the conviction.

In Printz v. U.S (1997), the portion of the Brady Act ordering state and local officials to perform a federal background check was ruled unconstitutional. Since the Act was challenged on the basis of the Tenth Amendment, Justice Thomas needn't have said a single word about the Second. But he did.

In addition to joining in the 5-person majority opinion, Thomas authored a separate, concurring opinion directly addressing the Second Amendment, and equating it with the First Amendment.

Said Thomas: "The Constitution...places whole areas outside the reach of Congress' regulatory authority. The First Amendment, for example, is fittingly celebrated for preventing Congress from 'prohibiting the free exercise' of religion or 'abridging the freedom of speech'. The Second Amendment similarly appears to contain an express limitation on the government's authority."

I leave it to Kavesh to read the details. The pre-publication version of Kopel's paper is publicly available at the Internet web site http://i2i.org/SuptDocs/Crime/35.htm, and scheduled to appear in Volume 18 of the St. Louis University Public Law Review.

The author concludes: "...the opinions from the Rehnquist Court (including from the Court's 'liberals' Ginsburg and Stevens) are just as clear as were the opinions from the Supreme Court Justices of the nineteenth century: 'the right of the people to keep and bear arms' is a right that belongs to individual American citizens."

Kavesh ends his letter in a challenge: "If the editors, or anyone else, can show me one U.S. Supreme Court decision since Miller affirming an individual right to bear arms, I will donate $100 in the name of the NRA to that person's favorite charity".

'll call him on that. He can send his $100 check to the Juvenile Diabetes Foundation International. I'll even supply the mailing address.

The writer is a Wesley Hills optometrist and is chairman, Committee for Law-Abiding Gun-Owners, Rockland



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