My Opinion

A National Referendum on Gun Control – pass this along

“A well regulated Militia, being necessary to the security of a free State”

We can’t agree. The 2nd Amendment has been distorted and misused. Our views range from outright paranoia of our government to outright banning all guns. Our politicians have proved more interested in their re-election than in acting in the best interest of and according to the will of the people.

It’s time to send a clear message reflecting the majority opinion of the citizens of the United States. If we believe in our republic, no point of view should fear the will of the people.

It’s time … now‼️


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6 replies »

  1. Need more “original intent”, see:

    “No freeman shall be debarred the use of arms (within his own lands or tenements).”
    –Thomas Jefferson: Draft Virginia Constitution with (his note added), 1776. Papers, 1:353

    “Laws that forbid the carrying of arms . . . disarm only those who are neither inclined nor determined to commit crimes . . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”
    –Thomas Jefferson, quoting Cesare Beccaria in On Crimes and Punishment (1764).
    _________________________________

    “To preserve liberty, it is essential that the whole body of people always possess arms…” – Richard Henry Lee, 1788, Member of the First U.S. Senate.

    “That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms…” – Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, at 86-87 (Peirce & Hale, eds., Boston, 1850. 2, col. 2

    Or, if you want Supreme Court rulings prior to 2008, prior to Heller, consider the following:

    In cases in the 19th Century, the Supreme Court ruled that the Second Amendment does not bar state regulation of firearms. For example, in United States v. Cruikshank, 92 U.S. 542, 553 (1875), the Court stated that the Second Amendment “has no other effect than to restrict the powers of the national government,” and in Presser v. Illinois, 116 U.S. 252, 265 (1886), the Court reiterated that the Second Amendment “is a limitation only upon the power of Congress and the National government, and not upon that of the States.”

    Although most of the rights in the Bill of Rights have been selectively incorporated (PDF) into the rights guaranteed by the Fourteenth Amendment and thus cannot be impaired by state governments, it was only in 2010 that the Supreme Court finally ruled that the 2nd Amendment was incorporated as a limitation on states. In McDonald v. City of Chicago, 561 U.S. 742 (2010), the Supreme Court ruled that the Second Amendment right recognized in Heller applies not only to the Federal Government, but also to states and municipalities.

    So, since the 19th Century, almost all of the litigation has been focused on the National Firearms Act, the Gun Control Act and state/local limitations – which do not bar ownership of guns, but almost always are designed to limit ownership. Limits that are intended to serve as a bar to ownership have never been declared constitutional by the Supreme Court; and, they obviously were never part of the constitution as written and envisioned by the framers.

    Again, if you don’t like my suggestion of how to deal with this, make a better one of your own that retains the individual right to keep and bear arms.

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  2. Dick, again, you are wrong. The 2nd Amendment needs to be read in light of the language of the day. Remember, when this was written, we were a confederation of states, not a national government. You had to write the constitution so that the states would agree to adopt it – in the 1790’s! So, you need to also look to the various state constitutions that were contemporaneously written and subsequently amended. State constitutions are especially helpful to provide insight about the right to keep and bear arms because right to arms provisions are included in 44 different state constitutions. Amendments to that language in state constitutions have been made from time to time since the Declaration of Independence through current date … so, we can see what people were thinking, why they included specific provisions and words. Finally, importantly, arms rights have been created by state conventions, state legislatures, initiatives and referendums – that is, by lawmakers and everyday citizens. Seems to be quite a consensus opinion – other than the law school, weenie elitists.

    Many of the same words and phrases contained in the 2nd Amendment were used in state constitutions – so they have a stable, consistent meaning. Since revolution to today, the words have clearly guaranteed a right of individuals to own and carry guns; and that right is NOT derived from the potential to be called into service as a member of militia.

    The Second Amendment was written in 1789 by James Madison and sent by Congress to the States for ratification – achieved in 1791. Four states had contemporaneous constitutional protections. PA, adopted in 1790, provides: “The right of the citizens to bear arms in defence of themselves and the State shall not be questioned.” PA’s 1st Constitution stated: “That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up.” Vermont’s Constitution, adopted in 1777, states: “That the people have a right to bear arms for the defence of themselves and the State — and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up…”

    Obviously, the framers believed there was a danger to maintaining a standing army – which might be maintained both for the defense of the states and defense of themselves (individuals). They CONSIDERED AND REJECTED substituting a standing army, a police force, whatever, for the individual’s right to keep and bear arms.

    North Carolina adopted the right in 1776: “[t]hat the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up…” Later, in 1843, the North Carolina Supreme Court explained that “[f]or any lawful purpose — either of business or amusement — the citizen is at perfect liberty to carry his gun.” A post civil war constitution was amended in 1875: “Nothing herein contained shall justify the practice of carrying concealed weapons”. Obviously, this was intended to limit individual rights.

    Finally, the 1792 Kentucky constitution was nearly contemporaneous with the Second Amendment, which was ratified in 1791. Kentucky declared: “That the right of the citizens to bear arms in defence of themselves and the State, shall not be questioned.”

    The year after the Second Amendment became the law of the land, Kentucky’s constitutional drafters used the phrase “bear arms” to include bearing arms for personal and collective defense: “in defence of themselves and the state.” This language suggests that “bear arms” was not commonly understood as encompassing only militia service.

    No one has argued that the lack of language “for defence of themselves” in the 2nd Amendment should be interpreted to confer rights in individual states that would not be guaranteed by the federal constitution as well. Otherwise, the feds could confiscate arms that the state would protect? I don’t think supremacy goes that far – and I know of no lawyer who would assert that the federal government has that right. Remember the constitution tells us what the federal government is not permitted to do, it describes individual rights!

    Finally, if this right were specific to state militias, if this were about the concept of citizen militias and a need to maintain arms at home in case of a conflict and call up, why would the last two states adopt the 2nd Amendment into their state constitutions – Hawaii and Alaska? Obviously, the right was added to those state constitutions to preclude each state legislature from infringing individual rights to keep and bear arms.

    Remember that we have not seen any change to the 2nd Amendment since ratification … NOTHING WRONG IF CONGRESS AND THE STATES WANT TO AMEND IT NOW. Article V only requires Congress to pass by a 2/3rds majority and a 2/3rds majority (38) states to ratify. We’ve had plenty of Constitutional amendments using that process since 1791. Nothing wrong with changing the language to make it clear in 2016!!!

    You want a national conversation? What will we discuss? HAVE SOMEONE PROPOSE AN AMENDMENT TO THE CONSTITUTION (not some piece of crap federal law that 5 – 10 years from now the Supreme Court will declare as (un) constitutional). Take it head on. And, remember to pass a law that will take away weapons from criminals; AND TAKE CRIMINALS WHO USE GUNS OUT OF THE POPULATION AT LARGE.

    THAT NO ONE HAS THE WILL TO RISK THEIR OWN REELECTION BY PROPOSING A CONSTITUTIONAL AMENDMENT TELLS YOU EVERYTHING – that all agree there is an individual right that an amendment would have to remove and that there are a majority of Americans who don’t want to give up that right … meaning, it ain’t gonna happen.

    Those who favor such legislative (not constitutional) action tend to read the bill of rights as guaranteeing against federal government infringement only 9 of the 10 rights incorporated into the Bill of Rights.

    Here’s my offer:

    Amend the constitution’s 2nd Amendment to leave all of the current language in place, add two phrases:
    First, confirm that there is an individual federal right to keep and bear arms, and
    Second, make it a federal crime to possess or use a federally unlicensed firearm, whether for lawful or criminal purposes, with a mandatory minimum federal sentence of 10 years, and
    Third, codify in the Constitution the prohibition for a felon to own or possess a firearm.
    No exceptions, no exemptions. Again, no exceptions, no exemptions, no explanations.

    The constitutional amendment removes all of the exceptions that were part of the Gun Control Act and the National Firearms Act.

    So, if you are 10 years of age and you have an unlicensed firearm, you go to prison for 10 years. You go to jail each and every time. You go to prison for possessing great grandpa’s unlicensed shotgun that hasn’t been fired in 50 years if you fail to register it with the federal government. Sell it to a 3rd party, and both buyer and seller go to prison.

    Give people two years to register all firearms. Licensing registration includes a representation that the firearm is properly secured (just like a car registration includes a representation that insurance is in place). Initial registration has a nominal charge, maybe $10 and must be repeated every year, but it can be accomplished through the mail, in person or online (a la car registration). Weapons that do not have registration numbers must be assigned registration numbers and appropriate tags that must be present on the weapon. The owner/registrant must be 18 or older. The nominal fee can be waived for individuals whose income in the year prior to registration was used to qualify them for benefits provided for those with incomes below the federal poverty level.

    The conviction for possession of an unlicensed firearm would be in addition to any criminal violation of state law (no double jeopardy applies).

    Start here – with guaranteeing the individual right to keep and bear arms, and with mandatory minimum sentences for possessing an unregistered weapon. So, for the criminal class of individuals with a felony conviction, we are talking about 10 year minimum sentences – in addition to any state law punishment.

    Try this first. If it doesn’t cut down the homicide and suicide rates, feel free to take other steps. You need the confirmation of the individual right to get it through Congress and a majority of states.

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    • I think you a dead wrong. If the intent was not in the context of a militia, there would be no reason for the words “A well regulated Militia, being necessary to the security of a free State” They would simply have said “the right of the people to keep and bear Arms, shall not be infringed.” (Which are the only words you typically hear quoted)

      The are several amendments in the Bill of Rights that make sense primarily in the context of the 18th century like quartering troops and a $20 limit on trials.

      Well regulated means organized, coordinated, ready for action. As you know they feared the power of the central government, but there were also those who recognized the need for a federal force (almost too late as 1812 demonstrated) State could mean an individual stare or the federal gov’t , but given these words are used in the Constitution I think it’s fair to assume thy are talking about federal state.

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      • So, obviously, the Supreme Court agrees with my interpretation (not that they couldn’t have just as easily ruled the other way if they wanted to find “penumbras” and “emanations” of the text – as you do here).

        Just what is ambiguous or unclear about “the right of the people to keep and bear Arms, shall not be infringed.”? What else in the text of the second Amendment suggests that there is some other right being protected – or that the federal government retained some right or ability to regulate an individual’s ability to own a gun? In other words, why do they call it the Bill of Rights? It was ALWAYS designed to RESTRICT the authority of the federal government. So, again, tell me, since militias were always state functions, intended in part to avoid the creation of a standing federal army, how does the FEDERAL government get any authority to limit gun ownership per the second Amendment?

        Remember, we are NOT talking about an unfettered right. The STATES are free to impose limits. However, those who favor federal gun legislation have always ignored the 10th Amendment (the last of the bill of rights) – seeking to apply federal rules to the states. But, this is the converse of nullification and interposition – where the states are free to exercise a limitation that is prohibited to the federal government.

        Regardless, if you seek a solution that has a chance of passage into law, the only option is to propose an amendment to the Constitution that will limit that individual right. So, as I suggested, start there – guarantee the individual right to keep and bear arms, and with mandatory minimum sentences for felons who possess a gun, for individuals who possess an unregistered weapon and for those convicted of a crime while using a gun. Apply an automatic, 10 year, minimum sentence – in addition to any state law punishment. Not even the NRA would oppose such an Amendment; and certainly, a majority in Congress and the states would sign on.

        Change 2nd Amendment to: The right of individuals to keep and bear arms shall not be infringed. However, it shall be a felony under federal law for a felon to possess a firearm, or for an individual to possess a firearm without a federal license, or for an individual convicted of using a firearm in the commission of a crime, punishable by a minimum of 10 years imprisonment.

        What do you think of that proposal?

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      • Why do you ignore the first 13 words of the Amendment? The SCOTUS long held the 2nd referred to military only relatively recently did that change and then only 5-4

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  3. How about a national referendum for restriction of Free Speech instead?

    As soon as I heard the details of the terrorist act, I knew that Clinton would call to take away our rights (guns), and Trump would want to take away our rights by enforcing discrimination (banning Muslims).

    Although it is still way too early to tell, it appears that this murder’s free thoughts were still legal and the FBI was never able to charge him before he commit this act. If we outlaw Free Speech, the FBI could have had this guy. Lets change the 1st Amendment. In the middle east or Boston, when these radicals do not have guns, they just make bombs so the result would have been the same. The only difference is that cell phone videos and the Internet makes them instant heroes halfway around the world, which makes another case to ban Free Speech like they do in China or North Korea.

    Think of of a country where the politician’s speech could be banned because the thought police didn’t like their ideas. Maybe they will have to tell the truth. Maybe no new ideas will occur because they would be afraid to speak up for fear of being thrown in jail. Maybe your own thoughts or ideology would put you in jail and subject your whole family to guilt by association unless you gave up names to a committee.

    Of course I am taking it to the extreme but be very, very careful when you mess with the Bill of Rights. Give up one right and which one will be next? I am not talking about Hitler’s Germany here, this happen in America in the 1950’s by a US Senator.

    We already have Sanders pushing socialism, how long before someone wants a dictatorship? Improving the economy will improve opportunities and giving less power to these radicals. Either way, Freedom is not free. Thousands have died in US wars to protect your rights and I am afraid 50 more died in Florida protecting your rights this week to be gay and to have guns.

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