HoltesThoughts: Why DC versus Heller was badly decided

Why DC Versus Heller was badly decided

I believe that DC versus Heller was badly decided. But since I'm not a lawyer and I agree that people should have a regulated right to own a gun under some circumstances. There are two fundamental reasons for this:

One: You can't sever the right to bear arms from the requirements for a "militia of the whole."
Two: The term "bear" is not synonymous with "carry" it means to use a weapon in a military/self defense capacity, not simply walk around with a weapon in ones hand.

What was Wrong with DC's law

The problem with the decision is that; yes the DC laws were wrong in that they tried to prohibit guns in any form and ignored the necessity for people being involved in their own self rule.

The Supreme Court starts their argument with this passage;

“The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited.” See D. C. Code §§7–2501.01(12), 7–2502.01(a), 7– 2502.02(a)(4) (2001).

The District law setup a catch 22 on possessing firearms.

“Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods.” See §§22–4504(a), 22–4506.

The regulations were garbled. Scalia explains:

“District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, “unloaded and disassembled or bound by a trigger lock or similar device” unless they are located in a place of business or are being used for lawful recreational activities.” See §7–2507.02.1 [Heller Decision Text]

You see the District law made it all but impossible for law abiding citizens to own a gun or defend themselves. In that sense it was a bad law, which made it a great test case for a court bound and determined to corrupt the law nationwide.

A False Choice

The court then laid out the two sides they were presented with as an either/or choice:

“The two sides in this case have set out very different interpretations of the Amendment. Petitioners and today’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. See Brief for Petitioners 11–12; post, at 1 (STEVENS, J., dissenting). Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. See Brief for Respondent 2–4.”

Garbling the Definition

To any honest reviewer with integrity, the Second Amendment cannot be understood outside the Context of Article I Section 8 of the Constitution. To quote the Constitution Second Amendment text:

“A well-regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” [http://www.largo.org/literary.html]

But the reality of the Heller decision is that it made mincemeat of the Second Amendment. As Patrick J Charles "Armed in America, A history of Gunrights" notes about Heller the Majority turned the meaning "bear arms" upside down:

“the majority agreed that the minority usage of the term 'bear arms' was the majority usage, and that the majority usage was somehow the minority usage.” [Armed page 13]

The “majority usage” of “bear arms” is to carry a weapon as part of a military unit, a ”well-regulated Militia”, the minority usage would be as a synonym to “carry”

“What also stood out was the manner in which the majority explained away the prefatory language as if the founding fathers had included it as merely a visual aesthetic.” [Armed page 13]

A Corrupting Definition

But this also gives short shrift to the term “bear arms” and what the purpose of the second amendment is.

Obviously the first part is referring to the context of the Second Amendment. The first part of the Second Amendment is a 'restrictive Clause'. Scalia plays with this notion and dismisses it. Scalia follows the following argument

"The debate over this amendment has been whether the first part of the sentence, 'A well-regulated Militia, being necessary to the security of a free State', is a restrictive clause or a subordinate clause, with respect to the independent clause containing the subject of the sentence, 'the right of the people to keep and bear Arms, shall not be infringed.' " [ibid Coperud]

A Fellow named "Copperud" explains Scalia's rationale:

"The words 'A well-regulated militia, being necessary to the security of a free state,' contrary to the interpretation cited in your letter of July 26, 1991, constitutes a present participle, rather than a clause. It is used as an adjective, modifying 'militia,' which is followed by the main clause of the sentence (subject 'the right', verb 'shall'). The to keep and bear arms is asserted as an essential for maintaining a militia." [ibid Coperud]

Which means that whether you call the first part a "present participle" or a clause, it moderates the second half of the Amendment. All admit that the "right to bear arms" is in the context of participation in the militia. Even Scalia admits:

“the right of the people to keep and bear arms” furthers the purpose of an effective militia” [Heller]

Patrick Charles in Armed in America, makes this even clearer. He refutes Scalia's bogus linguistic analysis by noting that even the term bear arms was only in relationship to armed service, not in reference to:

"crime, self defense, weapons, [or] hunting"

Patrick Charles credits (or blames) the NRA Historians Malcolm and Halbrook, for their errors. But I don't think that is much of an excuse. He notes that the NRA historians fully invented an incident where King James tried to disarm all of England using the 1671 Game act, and that they also invented the claim that the Second Amendment was drafted in response to British efforts to disarm people during the Revolutionary War. These lies are now part of the discourse on the Second Amendment and Gun rights. It's not surprise I suppose. But it's a real shame.

Stevens was right.

What is Meant by Militia

The Second amendment text is not the only guide for determining what the text means. Both the rest of the Constitutional Document as well as the Second Amendment have a bearing on the subject. And the question of "what is meant by militia" is important too. Scalia and company skip over this question in their exegesis on the Second Amendment. But it is important.

Hamilton explains that the militia are vitally important in the framework of our Union. Not just as an "auxiliary" to Federal Forces but as an organizing principle for self defense and a potential bulkhead against the effects of a Standing Army. In fact he talks extensively about the dangers of a standing Army, not just standing armies for the Federal Government but for the States. In Federalist 25 Hamilton notes:

“The framers of the existing Confederation, fully aware of the danger to the Union from the separate possession of military forces by the States, have, in express terms, prohibited them from having either ships or troops, unless with the consent of Congress. The truth is, that the existence of a federal government and military establishments under State authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions." [Federalist 25]”

So the provisions regarding the militia in the Constitution, including The Second Amendment are vital provisions and not separate provisions at all. Hamilton clearly saw and feared the causes and dangers of excessive militarism both to the health and liberties of the country and to it's ultimate survival. So much so that the constitution gives Congress:

“To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”[Constitution of the United States (COTUS)]

Right wing folks, in their fear of their own shadows half understand that the need for a well regulated militia is directly tied to the right to bear arms. Neither as a purely incidental right to defend the family, nor as a right that can be prohibited unless one is a member of the militia. But it is a right that has to be well regulated. Congress has the power to regulate the militia and the duty to organize, arm, discipline and provide for the militia. It only has the right to govern "such part of them as may be employed in the Service of the United States" because they also serve the States and the people of the locations where they are drawn from. And these people wanted the second Amendment because that service to local government was so important that they wanted the right to bear arms in reference to it. Hence the second amendment was added to ensure this:

“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.”[COTUS]

Without the ability of the whole citizenry to bear arms, the militia cannot form a check on either State Standing armies or Federal Ones. Hamilton never objects to the Second Amendment. Neither does Madison or the Anti-Federalists. All of them saw the value of militia, especially Hamilton who also saw it's weaknesses. But what did he mean?

The "Militia of the Whole" is the Body of Able Bodied Persons

Hamilton writes in Federalist 29:

“The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.” [Federalist 29]

SCOTUS even uses this fact in their decision to undermine the right to regulate the militia:

"the militia is assumed by Article I already to be in existence. Congress is given thepower to “provide for calling forth the militia,” [Heller Decision]

But then they claim:

"Congress is given the power to “provide for calling forth the militia,” §8, cl. 15; and the power not to create, but to “organiz[e]”" [Heller Decision]

"Organize" includes the power to create where not currently in existence. They leave out the rest of the sentence too;

"arming, and disciplining the Militia,"

....both of which imply the necessity, not merely the right to regulate arms -- because they have the duty to regulate and discipline the militia. Why would they leave out two key words in a sentence? And more importantly, SCOTUS is using the Heller decision to attack STATE Legislation! Stevens Dissent asserts quoting George Mason on the ratification of the original constitution:

“The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless—by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has the exclusive right to arm them.” Elliot 379"

Discipline is the right to say who may bear arms, how they may be born, and what arms may be born. The right to bear arms is clearly associated with the requirement for State Militias, and the right for states to regulate individual arms was clearly connected to an effort to placate anti-Federalists fears that the US Government would disarm their Militia. The second amendment was clearly added to meet the Objections of George Mason and others to the potential of the Federal Government to disarm the States ability to defend themselves. For that reason both the Majority and Justice Stevens quote Story's opinion;

"Agreeing in dissent that States could “organize, discipline, and arm” the militia in the absence of conflicting federal regulation" The Majority agreed that "In Houston v. Moore, 5 Wheat. 1, 24 (1820), this Court held that States have concurrent power over the militia, at least where not preempted by Congress.

Indeed the Majority in criticizing Stevens (who does provide support for is "contrary view" [which the Majority corruptly and conveniently ignored] notes:

It could not be clearer that Congress’s “organizing” power, unlike its “governing” power, can be invoked even for that part of the militia not “employed in the Service of the United States.” [Heller Decision]

Which might undermine Stevens case, but it illustrates all the more that if the "organizing" power then it is certainly true for the "arming and disciplining power" but also undermines the Corrupt Courts case that Congress or the States has no right to regulate the bearing of arms. The Power to regulate the militia is also the power to regulate arms.

The Militia as a Check on the Security State

Yes, It is clear here that Hamilton is referring to what is known as the "militia of the whole" or the "great body of the yeomanry, and of the other classes of citizens" under arms when he refers to the power and discipline of the militia. He's not referring to an individual right to bear arms but a collective right for individuals to bear arms so they can defend themselves, their country, their states and their neighborhoods. A collective right of the "great body of the people" to serve as a check on the dangers of corrupt officers, traitorous politicians or standing armies.

Militia are an Expression of Self Government!

This is something the Far Right perceives but generally narrows in their narrow minds to a right only enjoyed by the "right people" by which they exclude African Americans, immigrants, Hispanics or whoever the target of the moment is. The individual right to bear arms is contingent on this great collective right and duty. which paradoxically is to be regulated by the Federal Government, which has the duty to "organize", "arm", and "discipline" the militia and only has the right to "command" "such part as is in National Service." I discuss this more thoroughly in my blog entry "Militia Second Amendment and Democracy" but essentially the militia is the expression of the citizenry in their own self defense and self government. That is why the founders both feared it and extolled it. The right to bear arms is tied to the duty of self defense, self government. And should be organized and disciplined by the Federal Government with the exception that those citizens should have the right to bear arms, not a mere privilege. And since it is "ruinous" for the government to arm, train and discipline all of US, all the time. There is a need for a plan:

“yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need.” [Fed 29]

In short the militia should be organized on reserve principles, with many more trained than are needed, and people trained for exigencies that would only occur in emergencies, but used as needed during peace time. Hamilton was envisioning what we now call the reserves and National Guard. But this is also why Scalia and the Gang of 5 missed the boat on the Heller decision.

Prohibiting citizens from defending their neighborhoods and putting the defense of towns and villages in the hands of professional police only makes sense if those police are an extension of the neighborhood. If they are properly disciplined, trained and provisioned. But for States to treat the police as standing armies violates the letter of the Constitution that no State shall keep troops in peacetime. If they redefine police as "not troops" but train them and use them as troops then they are violating both letter and spirit of the provision. The only way they can have troops available to them is if the Federal Government directs them that way. It's kind of an amazing consideration but they are supposed to be under the direction of Congress and currently most police forces are barely under the control of their nominal executives such as mayors and Governors.

SCOTUS Erred in divorcing the parts of 2A

Scalia and company err in Heller, not in the final decision but it's elements.

"Held:: 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.; (a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22. "

...According to the Discipline of Congress

They erred in severing the right to bear arms from the right to a well disciplined militia. Essentially they got their rights and duties backwards. By decontextualize the amendment, and the references to Militia and ignoring the terms "according to the discipline prescribed by Congress" they render impossible any efforts by States or the Federal Government to regulate that militia. If anyone can bear arms, then anyone can form little private armies or go into shopping centers and blow people away. Add the context back int and it is not only appropriate for the City to require Trigger locks on pistols as a matter of safety, but it is even more important for the Federal Government to make sure that folks like Heller are trained properly and any weapons properly handled and secured. In fact it is remiss on the Federal Government not to organize, arm and discipline citizens in their use of fire-arms. And part of that discipline is determining when, where, how and under what circumstances arms are to be deployed and ensuring that States train to that discipline. It was wrong for the city to put unreasonable burdens on Heller getting his fire arms, because it is a Federal Duty that folks like Heller be trained and ready to perform their duty. As Stevens notes in his dissent:

"The term “bear arms” is a familiar idiom; when used unadorned by any additional words, its meaning is “to serve as a soldier, do military service, fight.” 1 Oxford English Dictionary 634 (2d ed. 1989)."

States have a right (and a duty!) to regulate firearms and determine where and how they are used, but in the context of the "discipline" prescribed by the Congress. So while it is right that they should prohibit firearms from individuals under certain circumstances -- but even when they do the people should have the right to have armories where they can deposit them, and places where they can train and be prepared under Federal Direction. If the militia want rocket launchers they should have the right to them. If individuals want fire arms there should be classes of fire-arms available to them. Because the Federal Government is constrained from taking away that right. Maybe if they really want a Rocket Launcher they should be required to keep it under the direction of a Sergeant at Arms at the local Armory. That is discipline. Trigger locks are discipline. No Uzzies on the streets is discipline.

A militia is composed of those citizens who are under the discipline of the militia. And the States have the power to select officers and train them. I suppose that is why police are all technically officers. But the militia is the body of the citizenry and and neither States nor Federal Government should be interfering with this right. On the contrary the Federal Government has the duty to provide for their arming and discipline. That this requirement is being neglected is no excuse.

The Federal Government has a duty to regulate but not prohibit fire arms and to ensure that they are only available for the purposes they were intended for; to defend the home, to order the streets, to defend the country, and yes to hunt or target practice. All that is in the cause and mission of defending the country and in removing the necessity for standing armies. Policing neighborhoods should be a function of citizens trained under federal discipline and then employed by their home towns. Technically a strict reading of the Constitution would suggest that the Federal Government should organize, arm and discipline the police. But it's really the Federal Government as a trustee for the People who have that role. Because the militia are supposed to be a check not only on Federal Power to create Standing Armies but state standing armies. We are supposed to have collaborative policing services, collaborative health services and collaborative security. And those who are the officers of those services should be serving us and preferably return like "Cincinattus" to the plow when their term of service is up.

SCOTUS severs the "Right to Bear Arms" from the Militia Requirement

...with tragic results

The Supreme Court Erred. Our current vast armaments and standing armies are the constitutional error, not regulations trying to limit untrained undisciplined people from hurting others instead of defending themselves. The court made an absurd decision with tragic consequences.

Post Script

I have written about the general and specific corruption of the Court. I firmly believe that at least 2 of our justices should have been impeached already and that the court is corrupt. But I get folks bothering me about the Heller decision and I've been researching and blogging about Militia and so I figured I should explain my own opinion. The concept of the "militia" needs to be revived in the context of voluntarism because it is integral to real democracy, which is after all people "stepping up to the plate" and making themselves part of the Government. You can't regulate arms, or any militia, is every untrained Tom Dick and Harry is armed to the teeth. SCOTUS was doing the business of the Arms Manufacturers, not the American people, when it made the lame brained Heller decision. I've evolved on the subject of militia since I first wrote this.

HoltesThoughts

Monday, August 31, 2015

Why DC versus Heller was badly decided