The militia part of the Second Amendment

March 15, 2013 By 54 Comments

The Washington Post has a front page story saying that the Second Amendment had always been construed to refer to a “collective” right to own firearms on the part of state militias until 2008 when the Supreme Court ruled that it refers to an “individual” right.  This change in interpretation, the article contends, was because the NRA nefariously funded legal research that supported its novel position.

I think that argument is absurd.  Read the gist of it after the jump. But then I’d like to discuss the “militia” part of the 2nd Amendment.  Since the Constitution says that “a well regulated Militia [is] necessary to the security of a free State,” shouldn’t we have a well regulated militia, as opposed to a standing army? [Read more...]

Filed Under: Government, Law, war Tagged With: , , , 54 Comments

150 firearms you might not be allowed to have

January 25, 2013 By 136 Comments

Democrats have introduced legislation to ban 150 specific firearms. Not just “assault rifles” but also certain brands of pistols and shotguns.   I’ve posted the complete list after the jump.  Those of you who own guns might want to see if any of yours are on the list.  [Read more...]

Filed Under: Law Tagged With: , , 136 Comments

The gun control package

January 17, 2013 By 97 Comments

The President has issued sweeping new gun control measures, a combination of Congressional proposals and 23 executive orders that go into effect immediately.  Details on exactly what the measures are, as well as a list of the executive orders are linked after the jump.  From The Washington Post:

“President Obama on Wednesday formally proposed the most expansive gun-control policies in generations and initiated 23 separate executive actions aimed at curbing what he called “the epidemic of gun violence in this country.” [Read more...]

Filed Under: Government, Law Tagged With: , , 97 Comments

Protect our rights with a police state?

January 8, 2013 By 10 Comments

My colleague Mark Mitchell feels some cognitive dissonance with the NRA’s response to gun violence in schools:

NRA president Wayne LaPierre called for a new initiative to place policemen in every school in America. It’s curious that in attempting to defend one right, the consequence is a dramatically increased police force. While I am doubtful that limiting the sale of certain guns will have any dramatic impact of gun violence, it is disappointing (though perhaps not surprising) that the best the NRA leadership can do is propose more policemen. And why stop at one policeman per school? With the size of many public schools, one police officer is simply inadequate. An officer in every hall might be a better plan. In short, we need a police state to protect our right to own all the guns we want? That’s the best idea the NRA has?

via NRA Proposes More Policemen | Front Porch Republic.

Filed Under: crime, Education, Law Tagged With: , , 10 Comments

Obamacare supports gun rights

January 2, 2013 By 76 Comments

So will the NRA rally support for Obamacare?

The words were tucked deep into the sprawling text of President Obama’s signature health-care overhaul. Under the headline “Protection of Second Amendment Gun Rights” was a brief provision restricting the ability of doctors to gather data about their patients’ gun use — a largely overlooked but significant challenge to a movement in American medicine to treat firearms as a matter of public health.

The language, pushed by the National Rifle Association in the final weeks of the 2010 debate over health care and discovered only in recent days by some lawmakers and medical groups, is drawing criticism in the wake of this month’s schoolhouse massacre of 20 children and six educators in Newtown, Conn. Some public health advocates, worried that the measure will hinder research and medical care, are calling on the White House to amend the language as it prepares to launch a gun-control initiative in January.

NRA officials say they requested the provision out of concern that insurance companies could use such data to raise premiums on gun owners. The measure’s supporters in the Senate say they did not intend to interfere with the work of doctors or researchers.

via NRA fingerprints in landmark health-care law – The Washington Post.

For me, the telling part of this story is “discovered only in recent days.”  Has NOBODY read the 124-page  bill all the way through?  What else might be in there?  (If you want to give it a go at reading the thing, here is the bill.)

Filed Under: Government, Law Tagged With: , 76 Comments

The founders’ individual mandates

April 16, 2012 By 30 Comments

It is unconstitutional to force individuals to buy health insurance, according to critics of Obamacare.  Not so, says Einer Elhauge of The New Republic, who points out that the founders who wrote the Constitution were not above passing individual mandates forcing citizens to buy things:

The founding fathers, it turns out, passed several mandates of their own. In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.

That’s not all. In 1792, a Congress with 17 framers passed another statute that required all able-bodied men to buy firearms. Yes, we used to have not only a right to bear arms, but a federal duty to buy them. Four framers voted against this bill, but the others did not, and it was also signed by Washington. Some tried to repeal this gun purchase mandate on the grounds it was too onerous, but only one framer voted to repeal it.

Six years later, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams.

Not only did most framers support these federal mandates to buy firearms and health insurance, but there is no evidence that any of the few framers who voted against these mandates ever objected on constitutional grounds. Presumably one would have done so if there was some unstated original understanding that such federal mandates were unconstitutional. Moreover, no one thought these past purchase mandates were problematic enough to challenge legally.

via Einer Elhauge: If Health Insurance Mandates Are Unconstitutional, Why Did The Founding Fathers Back Them? | The New Republic.

Wait a minute:  A mandate for everyone to possess firearms?  What does that  do to the liberal argument that the Second Amendment only allows for collective gun ownership in militias rather than personal possession?

I’m also curious about the status of these old laws.  Were they ever repealed?  Why, how, and when?  Would conservatives accept the insurance mandate in return for  Congress  re-instating the firearms mandate?

Anyway, back on topic, that the Washington and Adams administrations passed commerce mandates in no way proves they are Constitutional.

Filed Under: History, Law Tagged With: , , , , 30 Comments

Packing heat in the pulpit

February 20, 2012 By 50 Comments

Another unusual law from my home sweet Oklahoma:

The state house is considering a bill to allow pastors in their churches to protect themselves like citizens do in their homes, vehicles and businesses.

A state house committee approved the legislation Tuesday that would make it legal to use deadly defensive force if there’s a fear of imminent death or bodily harm.

The representative who wrote the bill sited several cases of violence inside Oklahoma Churches in the last decade.

The bill now goes to the house floor for a vote.

via OK House Considers Bill Allowing Pastors To Use Guns In Church – NewsOn6.com – Tulsa, OK – News, Weather, Video and Sports – KOTV.com |.

So does that mean that pastors aren’t currently allowed to use firearms from the pulpit?  Or is this one of Oklahoma’s “making a statement” laws?  (Update:  Apparently the latter.)

Back in the Middle Ages, the clergy were forbidden to shed blood, so they would not use swords or lances.  So instead some of them, including the Popes leading their armies, would use maces to bash their enemy’s heads in.

Military chaplains, I believe, do not carry weapons.

What do you think of the prospect of pistol-packing pastors?  A little too law-oriented?  A temptation to deal with annoying parishioners in a non-pastoral way?  Prudential protection?

HT:  Ned

Filed Under: Church, Law Tagged With: , , 50 Comments

Two cases of self-defense

January 16, 2012 By 98 Comments

I’ve been in my native Oklahoma last weekend to see my new granddaughter and to be there for her baptism.  Localists have a point:  There really are regional differences.  It’s nice to be back in my old stomping grounds.

It’s interesting to read the local newspapers.  You may have heard about the 18 year old single mother in Oklahoma who greeted the man who broke into her mobile home by killing him with a blast from her 12-gauge shotgun.  She’s receiving all kinds of acclaim.  That’s the Oklahoma spirit.

But that has brought up a case from a few years ago, with people here discussing whether it is similar or different.   A robber was holding up a pharmacy in Oklahoma City.  A worker shot him.  The thief was down but still alive.  So the worker re-loaded and finished him off.  Whereupon he was tried and convicted of first-degree murder.

I can’t believe an Oklahoma jury convicted him!  Do you see a line being crossed?  Or should criminals face a special jeopardy when their victims fight back?

For details see ScissorTales: No comparison between killings | NewsOK.com.

Filed Under: Law Tagged With: , 98 Comments

Keep and bear arms

June 30, 2010 By 184 Comments

The Supreme Court ruled that the Second Amendment gives individuals–not militias–the personal right to keep and bear arms, a right that state and local governments may not abridge:

The Second Amendment provides Americans a fundamental right to bear arms that cannot be violated by state and local governments, the Supreme Court ruled Monday in a long-sought victory for gun rights advocates.

The 5 to 4 decision does not strike down any gun-control laws, nor does it elaborate on what kind of laws would offend the Constitution. One justice predicted that an “avalanche” of lawsuits would be filed across the country asking federal judges to define the boundaries of gun ownership and government regulation.

But Justice Samuel A. Alito Jr., who wrote the opinion for the court’s dominant conservatives, said: “It is clear that the Framers . . . counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.”

The decision extended the court’s 2008 ruling in District of Columbia v. Heller that “the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” That decision applied only to federal laws and federal enclaves such as Washington; it was the first time the court had said there was an individual right to gun ownership rather than one related to military service.

via Supreme Court affirms fundamental right to bear arms.

I don’t see how the Second Amendment could be read in any other way.  For those who only think that it refers to militias, I would think they would have to support militias as constitutionally-mandated.  At the time of the founding and extending through the Civil War, America had no large standing army.  Just local and state militias consisting of ordinary citizens.  Who kept their weapons at home.

The National Guard is not equivalent to those militias (note the “national” in the name and its connection to the standing military forces).  Nor are the radical groups that call themselves militias but operate under no governmental chain-of-command.   But since the Constitution calls for them, shouldn’t we have them?  Could they, properly trained and equipped, offer an alternative military system to what we have today?

ANOTHER THOUGHT: Those who think the Second Amendment applies primarily to militias should, therefore, support the possession of military weapons, such as assault rifles. Clearly, the amendment is not talking about the right to hunt but the right to “security.” That certainly has to include the keeping of weapons for self defense.

Filed Under: America, Law Tagged With: , , 184 Comments