Friday, March 21, 2008

College Students on the Second Amendment

I love college students!

As some of you may know, I work on a college campus and, under the circumstances, I find many situation in Campus Life which I deplore.

Among these are the distressing tendencies of college students to:
  • clutter parking lots in the near vicinity of dormitories with discarded beer cartons and broken beer bottles;
  • complain vociferously that "there are not enough parking spaces!";
  • ride bicycles too fast and with no apprehension of the general Rules of the Road - bicyclists typically consider that whatever rules (pedestrian vs vehicular traffic) provides them the best advantage, that's the rule they rely upon.
I've been guilty of all these ego-centric attitudes when I was a student, so please understand that this merely represents the maundering of a cranky old man, but not a sincere criticism.

But this week, in response to DC vs HELLER, I was delighted to find that College Times recently presented an article which reminded me why college students are so enjoyable.

The original article merely presented a summary of the DC v HELLER controversy. I thought it was well-presented, concise and (if you will excuse the expression) 'balanced'.

(This was not the first time that College Times discussed the Second Amendment & 'Right to Carry' issues... c/f "The Facts behind Gun Control need to be cleared"; August 7, 2007, re: Virginia Tech and CCW.)

This current (March 20, 2008) article ("Constitution fully maintains the right to own a handgun") article only reports on the current DC v HELLER issues, in reference to the Supreme Court case.

Go there and read the commentary, as well as the comments.)

The proposition of this article seems to be that the 2nd Amendment is an "Individual Right", rather than a "Collective Right" applicable to formal Militias, such as the National guard. (There's a Leap of Faith involved here.)

While there seems to be a consensus in the comments, there is not unanimity of opinion. We should pay special attention to the(few) dissenting voices here.

I would like to pay special attention to one single dissenting voice, which (since there are no permalinks guaranteed on this website) I will cite in full:

"Joe Edwards: Freshman, Forestry" comments:
"Concealed Carry is unnecessary for Safety"
I have a response in regard to the column, "Constitution fully maintains the right to own a handgun," (CT, March 20).

Today's world presents times of tragedy and turmoil, regardless of the right to own or carry a handgun. While the second amendment does in fact permit the right to keep and bear arms, it is wonderfully inappropriate to assume the founding fathers meant for us to buy and keep firearms to keep criminals off the street.

It is true that only law-abiding citizens can buy firearms legally, but it has been proven that these so-called law-abiding citizens can quickly turn into psychopathic killers. It is crazy to think how gun supporters use mass shootings to promote the sale and use of guns when the killers bought the guns legally in the first place. This does not make me feel safe at all.

I have never felt threatened at all in my home or anywhere for that fact. I do not need a gun for safety. I can lock my doors and shut my windows. If there is such a need for guns, then why don't we sell the guns and make it impossible to get the ammunition? Then everyone could be happy. The gun enthusiasts could have their guns and the people who are out to shoot people can't get the ammunition they need to do it.

Joe Edwards
freshman, forestry

I draw your attention to certain phrases in this comment:

While the second amendment does in fact permit the right to keep and bear arms, it is wonderfully inappropriate to assume the founding fathers meant for us to buy and keep firearms to keep criminals off the street.

Well, yes. However, the Second Amendment postulates, by inference, that American Citizen may not be charged with purpose of the Second Amendment is to " ... keep criminals off the street."

That's the normative view of the purpose of Police, who are too few and too often too far away. If you want to defend yourself against criminal predators, the Second Amendment only serves to acknowledge that, in the absence of Police, you have the right to provide for your own personal defense.

Mr, Edwards also states:
"It is true that only law-abiding citizens can buy firearms legally, but it has been proven that these so-called law-abiding citizens can quickly turn into psychopathic killers."
Mr. Edwards not only fails to cite justification for this extremist Point of View, he has established an iconic statement which has been the subject of ridicule by websites which require more substantial authority than personal bigotry. In short, he has established his own personal '15 minutes of fame' by leveling unsubstantiated charges.

(I will not bother to address the statement that "... It is true that only law-abiding citizens can buy firearms legally...", except to note that "law-abiding citizens" must submit to background checks, while "other" "non-law-abiding citizens", do not typically concern themselves with any requirement to conform to current firearms-control laws.)


Skipping lightly over several more egregious opinions, Mr. Edwards concludes:
If there is such a need for guns, then why don't we sell the guns and make it impossible to get the ammunition? Then everyone could be happy. The gun enthusiasts could have their guns and the people who are out to shoot people can't get the ammunition they need to do it....
Ahhh .. there you reveal yourself to be a True Progressive Liberal, Joe.

You are entirely unconcerned with the intent of current Firearms Laws. Instead, you have your own personal agenda to pursue, and all other considerations pale in comparison.

If the Second Amendment guarantees the "Right to Keep and Bear Arms", and you cannot discern a legal means to undermine it, then you are perfectly comfortable with starving that Constitutional Right by denying legal firearms owners the ammunition necessary to make the Civil Right work.

This is tantamount to saying: if the First Amendment is uncomfortable, we may deny newspapers the right to possess printing presses, paper or ink; we may deny protesters the right to speak in public places (only private residences will be secure in this right), and Religious Organizations the zoning variances necessary to build churches.

For these accouterments are no less necessary to the First Amendment than ammunition is to the Second Amendment.

And you, Joseph Edwards, are no better than Joseph Stalin in your zeal to deny your fellow countrymen their Civil Rights.

I'll bet you never thought of yourself as a Tyrant before, did you?

Thursday, March 20, 2008

"I'm Back!"

They wanted Harrison Ford to star in another Star Wars! film.
He said: 'Uhhhhh no. I don't think so."

So they said it was either that, or a fourth Indiana Jones movie.

On October 31, 2007, Steven Spielberg at IndianaJones.Com announced the completion of principle photography on "Indiana Jones and the Kingdom of the Crystal Skull."

Starting May 22, 2008.
In movie theaters everywhere.

Just thought you would want to know.

Ray Winstone, who plays one of Indie's "sidekicks", starred in Beowulf (2007).
Shia LaBeouf, who plays another "sidekick", starred in Transformers.
Karen Allen reprises her role as 'Marion Ravenwood' from the first Indiana Jones movie, Raiders of the Lost Arc.
John Hurt is the real veteran (and one of my personal favorite actors). Among his many credits are Mr. Ollivander in the first "Harry Potter" movie, and Dr. Bruttenholm in Hellboy. He is perhaps best known for being the first victim in Alien.
Cate Blanchet played Galadriel in the Lord of the Rings Trilogy.
Ian McDiarmid played 'Supreme Chancellor Palpatine' in four Star Wars movies (I, II, III and VI).

Wednesday, March 19, 2008

DC v Heller - Transcript

The Supreme Court heard DC v Heller yesterday, and last week and Tuesday I gave you some places to look at the commentary. (Also see Michael Bane's DownRange TV summary here.)

The transcript is now publicly available, on the NRA website and a lot of other places. For your convenience I've also made the PDF version available to you here.

(Adobe Reader needed to read it, you can download the latest version here.)

The transcript is in legal format, and although it is 110 pages long the file is only 409KB so it should download fairly quickly.

No, I haven't read the whole thing. I've read the first dozen pages where Walter Dellinger (the attorney for DC) presented his arguments for the District of Columbia. My first impression is that the Justices interrupted his presentation 'frequently' (read: 'a lot'), usually keeping Dellinger off-balance with the need to respond to their questions and often side-tracking him until he lost the thread of his theme.

Even Justice Kennedy seemed almost confrontational.

According to Jim Shepherd of The Shooting Wire (who attended, and who wrote a summary today), Justice Clarence Thomas had not a word to say. This is his usual practice.
"As is his custom, Justice Clarence Thomas did not speak during the arguments, but has gone on record in favor of the individual right interpretation."

Shepherd also described an incident which occurred as he was interviewing Dick Heller, "the defendant of the case"*:
Speaking with him [Dick Heller] on the Supreme Court steps after the arguments - and his long question-and-answer period with the media, I asked him how he felt about “his” lawsuit.

"It's a simple case to me," Heller said, "It is wrong for the government to tell me that it is OK for me to have a gun during my work hours, but illegal for me to have a gun when the only thing I want to protect is me."

At that point, a reporter interjected: "the Mayor (DC Mayor Adrian M. Fenty) says the handgun ban and his initiatives have significantly lowered violent crime in the District. How do you answer that, Mr. Heller?"

The initial answer certainly wasn't expected - Dick Heller laughed. Ruefully.

Pointing at the Mayor who was making his way across the plaza, surrounded by at least six DC police officers, Heller said, "the Mayor doesn't know what he's talking about."

"He doesn't walk on the street like an average citizen. Look at him; he travels with an army of police officers as bodyguards - to keep him safe. But he says that I don't have the right to be a force of one to protect myself. Does he look like he thinks the streets are safe?"

There was no follow-up question.

[* NOTE: in the transcript, the "District of Columbia, Et Al" is identified as "The Petitioners"; Dick Anthony Heller would be "the Respondent". Heller's attorney of record, Alan Gura, is identified as speaking "on behalf of the Respondent". Because I intuitively understood that Heller was challenging DC, I would have thought him to be the "Petitioner", which would make the District of Columbia the "Respondent". As I have mentioned before, I am clearly no Constitutional Scholar, nor am I trained in legal matters. ]

How do we interpret this?

I don't know how you choose to prognosticate on the case, but anything I could say would only be an expression of hopeful yearnings. I yearn to be positive about the future of the Second Amendment; I hope that the Supreme Court determines that it defines an 'individual right' (as do all other items in the Bill of Rights).

What I expect is a little more middle-of-the-road-ish":
  • In the best possible case, the Supremes (whose final decision isn't expected before June) cannot rule in a manner which will throw every existing Gun Control Law -- rumored to be on the order of 20,000 laws -- out the window and expect the States to fit their 'local preferences' into a new framework. Some of those laws will have to be accommodated in order to avoid total anarchy.
  • I expect that restrictions will not be added to the private purchases of firearms which do not involve a 'dealer' (possessor of a FFL - Federal Firearms License).
  • I expect that the purchases of firearms from 'dealers' will still have to pass a background check.
  • I expect that these processes will continue to disallow sale to felons, certifiable madmen, etc.
  • I expect that the decision will NOT address the current trend toward State limitations on the availability of ammunition (Encoded Ammunition) nor on State requirements that firearms be fitted with a means of marking ammunition during firing (Microstamping). The sly Gun Control crowd have cleverly anticipated a Federal ruling on outright attacks on the Second Amendment; they started their Second Front years ago, to restrict access to ammunition.
Beyond that, your guess is at least as good as mine. If you're a congenital pessimist, your guess is probably better.

I hope not.

We've had our best shot (sorry) at judicial relief from the constant barrage of arbitrary and agenda-driven attacks on the Constitution. We don't have the luxury of writing our Congress-critters to petition for redress; it's up to one clench-jaw woman and 8 old men, all robed in black dresses, to decide whether we are a free people or subjects.

The Brits blew it. I sincerely believe that our system of government is superior.

Check back here in July, where there will either be a Happy Dance Party, or a pronounced gnashing of teeth.

Tuesday, March 18, 2008

DC v Heller ... Early Vote Counts

The Countertop Chronicles : Freedom

There are plenty of smart people talking about whether the Supremes seem more or less inclined to decided that the Second Amendment acknowledges an Individual Right to own firearms ... including handguns.

Wayne LaPierre (who is not my favorite person) wrote today that he was "... confident the Second Amendment will soon return to the District. "

Well, he has to be confident, doesn't he?

But the NRA's live video forum "Cam & Company" video available today (sorry, no link ... it's live) included several people (including Jim Shepherd of 'The Shooting Wire' (not a permalink), who is one of my favorite people) who spoke eloquently for 2nd Amendment rights, and proposed that Justice Kennedy seemed to be amenable to the "individual right" interpretation.

Michael Bane has some podcasts ... software download NOT required ... discussing the issues. John Lott, Jim Shepherd, Dave Kopel, et al.

All in all, the prognosis is that the Second Amendment may be in effect everywhere in America, even in the District of Columbia.

Whether this decision may be applied in Chicago and New Jersey is yet to be determined.

Maybe tomorrow.

Monday, March 17, 2008

The Brits:police 'experts' blast themselves

Gun injuries soar as police 'experts' blast themselves and colleagues by mistake | the Mail on Sunday

Hat tip to Kim:

I've refrained from criticizing "The Brits" for ever so long. I've tried to be a Good Boy and ignored the egregious socialistic measures they've imposed on their subjects.

But this ... THIS! THIS exposition of the way the once-proud British Bobby has sunk into despair because they cannot get the hang of "Keep your Booger-Hook off the Bang-Switch" concept drives me beyond the brink of restraint.

The number of armed police officers accidentally shooting themselves – and other colleagues – has soared in the past five years.

Now, nearly half of all injuries caused by police shootings are the result of officers blasting themselves or a colleague, often during bungled training and demonstrations. [emphasis added]

Since 2003, there have been seven incidents in which armed police injured themselves or a fellow officer due to the careless handling of a gun, compared to just four in the previous 12 years.

The disturbing statistics call into question the competence and training of the 6,700 officers authorised to carry firearms in the 43 police forces in England and Wales.
I attribute these lapses in gun-handling expertise to training ... or the lack of.

British Bobbies have historically NOT been armed. In an attempt to establish a cadre of Bobbies who are authorized to carry firearms, the Brits have ignored a single, important, salient priority: your trainers in Gun-Handling need to be competent.

This small, but significant criteria seems to have been overlooked, to the detriment (in physical health terms) of the training subjects.

You and I know that hormone-addled adolescents can be safely rote-trained in gun-handling skills. We've seen it; we've done it. For that matter, pre-adolescents as young as ten years old can be taught to "shot safely".

The difference between the American (clearly superior) and the British (clearly inferior) model is, "you don't let anyone handle a gun until they have demonstrated that they can do so without close and overbearing supervision".

Why am I so blatantly chauvinistic about Firearms Training in comparing the British vs the American experience? Because The Brits have officially 'determined' that "Guns Are Bad, And Must Be Discouraged"; while Americans have 'embraced' the Gun Culture and codified both usage and training in a realistic context.

That is to say, we accept firearms usage as a normal part of our culture. The Brits have demonized firearms usage, and resist any attempts to train themselves in the safe usage thereof.

Secretly, the average Brit glorifies The Way Of The Gun, and each Brit considers himself intuitively expert in Gun Handling. In the actual fact, they haven't a clue ... and they demonstrate that mistaken incomprehension at every opportunity.

Here in America, we generally tend to admit that we don't really know how to handle weapons, but we're willing to learn.

In illustration of that comparison, from the Original Article:

How officers have been wounded

Recent accidents involving police firearms include:

• A civilian control room operator was shot in the abdomen during a firearms awareness course in Kidlington, Oxfordshire, last year. A Thames Valley Police firearms officer had been showing staff his Glock pistol, unaware it was loaded.

• A Sussex police officer accidentally shot a 48-year-old PC in the body at the range at Gatwick police station in August 2007. Body armour saved him from serious injury.

• A trainee firearms officer shot a Met instructor in the thigh as he was setting up a target in a mock-up of a night-time alley in 2003.

• A diplomatic protection officer in Central London shot himself in the leg getting into a car in September 2007.

• A firearms officer from West Mercia Police shot himself in the leg and foot in January 2006 after his gun became caught in his clothing.

• An airport security officer from the Met shot the top of his thumb off when he put it in front of his MP5 sub-machine gun during training in 2005.

Here (courtesy of the American "National Rifle Association" are the three Basic Rules of Gun Safety:

  1. ALWAYS keep the gun pointed in a safe direction.
  2. ALWAYS keep your finger off the trigger until ready to shoot.
  3. ALWAYS keep the gun unloaded until ready to use.
This may seem simplistic to some of you, but at least one ... or more ... of these rules were violated in EVERY "Accidental Shooting" cited above was violated.

Did these guys even know these three basic rules? Well, perhaps intellectually. But one thing is clear: if they had ever been told these rules, they dismissed them as being not applicable to their personal selves.

Until they shot them self, or their friend or colleague.

The worst part of these painful scenarios is not that people were shot.
The worst part is that these experiences serve to reinforce the concept that guns are so dangerous, they will shoot you if you allow yourself to be in the same room with a gun.

What a bunch of horse-radish!

The guns didn't shoot these cops; the cops shot these cops. (Am I being too subtle here?)


The training protocol in England sucks; it encourages cops to shoot cops.

The anti-gun (Socialist) environment in England sucks; it is based on the assumption that the individual is not only responsible for his own actions, but he is not able to control his own base impulses.


With no great effort, I could point The Brits to a hundred Adolescent American Girls who could establish a "Gun-Handling" program superior to anything The Brits have so far used.

All that is required is that the instructor insist on a commitment by the students, and that the instructor insist on close supervision of every step of training. These USPSA Juniors know what is Right, and what is Wrong. That establishes them as instructors superior to whatever The Brits are using now.

But will The Brits accept instruction from "Our American Friends"?

Your loss.

Sunday, March 16, 2008

Constitution: 'A Living Document' or 'Rule By Law'?

The United States has historically served as a shining example of Rule by Law in the world.

America is the first nation state openly to be predicated on the concept that a nation should be established under the proposition that all men are created equal, all should enjoy equal opportunities and equal protection under the Law, and that it is the primary duty of the State to protect these God-give rights.

In the Declaration of Independence, that basic premise looks like this:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

In all other nation states existant at that time, rights were defined and controlled by a certain class of peoples. The presumption was that this class alone was competent to determine whether certain actions were acceptable by all people, and to decide what rights (pick and choose according to the prejudices of the ruling class) should be 'granted' to the people who were not members of the ruling class.

The United States of America has prospered during the last part of the 18th Century ... since the Constitution of the United States was proposed and accepted as Law.

Part of this prosperity was because of the vast natural resources available in this new land. As more of the North American Continent was added to the United States of America, more opportunity for prosperity was made available for use of the individual.

A Lesson in Civics:
Part of this prosperity was because the principle of Capitalism was protected: it encouraged economic growth, and it also encouraged abuse of the freedoms which were central to the basic philosophy of a Free People in a Free Nation. At the same time, as the residents of the country learned that some controls were necessary to prevent these abuses, the laws were changed (by an established legislature) to protect the rights of its citizens while continuing to encourage economic growth, and prosperity not only for capitalistic entrepreneurs but for the common working man.

Much of this growth was painful: national expansion resulted in abuse of Native Americans; the desire for 'cheap labor' encouraged the Slave Trade; as more immigrants reached our shores we discovered that Big Business was abusing the rights of new citizens to earn a wage commensurate with their labors.

Protection for Native Americans arrived late in America, as did the rights of those who were brought to these shores as indentured servants, and as outright slaves. We fought a Civil War (in part) to free our country of outright and economic slavery; the rights of Native Americans was never adequately addressed, to our everlasting shame and sorrow. Today, Native Americans are not specifically provided with federal protection despite a plethora of Treaties which vowed concessions to this class of citizens "as long as grass grows or water runs".

But most of the wrongs we did were addressed by changing the Laws of the Nation, which continued even to the Constitutional Level until, in 1863 (during the Civil War) President Lincoln signed the Emancipation Proclamation. (It was flawed, but it was significant as a step to repealing the right of one man to legally possess another.)

In the nineteenth and twentieth Centuries, we addressed the rights of Labor. Congress ("the legislature") was slow to recognize the societal wrongs implied and explicit in Capitalism vs Labor, and Labor Unions were formed ... not usually in a peaceful manner. Eventually, the Nation recognized that Capitalism was fraught with peril in an unregulated society, and federal laws were proposed and enacted to protect laborers in America.

The Constitution Today:
Today we are on the threshold of revaluing another Constitutional Right: The Second Amendment.

In DC v Heller, the Supreme Court of the United States is tasked with interpreting the United States Constitution to determine whether the Second Amendment is an Individual Right or a States Right.


The Second Amendment is one of the original Ten Amendments which constitute the Bill of Rights.

Let's talk about the Amendments to the Constitution.

During the Constitutional Process, Congress addressed societal issues which, in the opinion of the original Framers of the Constitution, had not been made clear. The goal was to enumerate specific Rights which were "Granted by God", not 'granted by the state'. (This was an expansion on the original acknowledgments in the Declaration of Independence: " ... that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness ... ".)

The Bill of Rights refers to those rights of "... all men..." not as new 'rights', but as an enumeration of rights already in place; granted by God, not by The State. Specifically, The State (The Nation, not individual states) did not grant these rights, but the Federal Government only acknowledged them on behalf of 'All States'.

Starting with Miller vs US in 1939, various agents of the Federal Government usurped the U.S. Constitution by legalistic subterfuge to establish the groundwork necessary to suppose that the right of the individual to possess a firearm was not constitutional.

This Federal decision is frequently referenced in support of the proposition that firearms possession is not an individual right. However, reading the original opinion one finds the passage:

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.

The Constitution as originally adopted granted to the Congress power -- "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 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." With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.

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.

Note that the citations begins with the following phrase: "In the absence of any evidence...".

This is the most telling portion of the entire Opinion, and if we ignore the background we are logically impelled to presume that "... 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..." and "... we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

In point of fact, the original indictment involves two people: one had died before the issue reached the court, and the other had deliberately absented himself from the trial. Consequently, only federal representatives (who may reasonably be assumed to have a 'hidden agenda' were available to present evidence. Any testimony which might have been offered in defense of Miller was not presented during the hearing, because of the absence of the defendant. Therefor, only one side of the argument was presented, and the court found itself unable to consider demurring arguments because ... they were not available, no matter how telling or significant they may have been.

A Point of Reference:
In a footnote, the court notes but dismisses that the 1934 National is 'not a revenue act', but 'an attempt to usurp police power reserved to the States', which might have been a legitimate defense:
United States.' 1 [307 U.S. 174, 176] A duly interposed demurrer alleged: The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution, U.S.C.A.-'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.' [307 U.S. 174, 177] The District Court held that section 11 of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment.
This demurrer has been constantly ignored in subsequent court actions and court decisions, because the (undefenced) challenge to the Act which might have been defensible ... if it had been defended in fact rather than being ignored 'de jure'.


All Second Amendment related court rulings have been unavoidably tainted by the undefended 1939 Miller decision. While the federal courts are hamstrung by this ruling, the Supreme Court today has the unique opportunity to ignore this egregious (and legally unavoidable) decision.

More importantly, the question is: "should this issue be decided by the courts?"

The United States is in the arguably enviable position of ignoring the question.

Instead, this Constitutional Amendment could more appropriately be addressed by the Legislature.

The United States Constitution, according to some scholars, is not subject to interpretation other than in the context which existed at the time it was originally enacted.

Witness the Eighteenth Amendment (establishing Prohibition of the 'manufacture, sale or importation of spirituous liquors') and the subsequent Twenty-First Amendment (repealing Prohibition), both of which addressed the issue of Liquor Control. These two amendments addressed a 'societal problem' in which the cure was empirically found to be worse than the problem.

How different is 'Liquor Control' from 'Gun control'?

Well, that is a subjective definition, but it does serve to demonstrate a few facts of the American Constitutional Process.

First, the Constitution is not a 'Living Document', and if you don't like the way the Constitution does NOT restrict Civil Rights, the historically acceptable solution is not by Judicial Fiat; the 'right' way to change it is by legislation.

Second, if 'Judicial Fiat' is accepted as a legitimate manner to change the meaning of the Constitution, there exist no legitimate for the 'Will of the People' to change this interpretation. The Judiciary has already been given unconstitutional powers due to the opinion of a few judges, and the Will of the People is undermined ... as is the power of the Legislature to enact a change in Federal Law (the Constitution) by non-Judicial means.

Third, (and as a sub-set of the 2nd point) by defining the Constitution as a "Living Document", the Balance of Power (specifically and by implication) in the Federal Government loses its ability to 'Check and Balance' one branch of Government against another. This is explicitly and obviously contrary to the intention of the Founding Fathers.

The attempt to use the Supreme Court to change the Constitution by 'interpretation' is intrinsically flawed.

If the Constitution is perceived to no longer meet the needs of Modern Society, an attempt to change the "Interpretation" of the Constitution is in and of itself unconstitutional.

The only legitimate and legal way to change the 'interpretation' of the Constitution at this point is Legislative, not Judicial.

That is, the Supreme Court of the United States does not have the Constitutional Power to legislate on this question; the Supreme Court should decline to rule in opposition to the Second Amendment, or at a minimum should find that this is an Individual Right as opposed to being a "Collective Right".

If the Legislature opposes this definition, it is empowered to propose, lobby for, and legislate an Amendment to the Constitution ... which must be ratified by the states.

The United States' Government has no powers which are not granted by the Constitution. Any attempt to end-run these powers should be viewed as an attempt to usurp the rights of the Citizen, and treated accordingly.

UPDATE: March 17, 2008

Kevin Baker (not Bacon) was kind enough to point out a typo ... I had dated the Civil War as '1963', when I should have typed '1863'. I corrected that.

Also, I changed the penultimate paragraph of the article to include constitutional amendments, and a link to the process for ratifying proposed amendments. (The Legislature cannot unilaterally enact a Constitutional Amendment; it must be ratified in one of two ways, both of which require agreement by a majority of the States.)

THINGS I LEFT OUT and shouldn't have:
The Miller Decision was erroneous because the shotgun in question actually met the test of 'suitable for a militia', because it was similar to Trench Guns used in WWI. Only government lawyers showed up for the trial, no defendant or legal representation for the defendant appeared, so only biased Governmental arguments were made. They weren't about to undermine their own case by mentioning that, so the judge couldn't reference it in his decision. (I discussed this also in the COMMENTS section.)

Also, in Lincoln's Gettysburg Address we see the President who held office during the Civil War deliberately reinforcing the importance of the unique genesis of this country:

Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure.

Lincoln's affirmation of the Declaration of Independence made a powerful connection with the war to insure that "all men" meant exactly that. Later Constitutional Amendments provided a further expansion to include "all women" (by enacting the XIX amendment in 1920). This served as an excellent illustration of the way that constitutional amendments ... not judicial activism ... has always before been understood to be the acceptable means to 'modernize' the Constitution to include a more liberal interpretation of rights, not to restrict rights.

Finally, a comparison of the progress of the XIX amendment with the proposed "Equal Rights Amendment" (ERA) is an example of a constitutional amendment which was widely lobbied for, but failed to gather sufficient votes from the states to be ratified. The ERA sounded reasonable on its face, and Congress was ready to ratify it. However, a grass-roots campaign forced state legislators (and the general public) to look beyond the emotional furor and understand the likely consequences of its ratification. Today we see some of the same issues which we dodged back in 1977 are again being proposed at the state level (most tellingly in California) -- to the general public distaste across the country.

All of these background issues should have been included in the original essay, and they were intended to. However, I wrote the article in a single draft without even having drawn up an outline. I was secure in my overconfidence that I couldn't possibly forget these points ... and produced a weaker argument than I intended.

I apologize to my readers for presenting a flawed document. I hope these abridgments will make the thesis more understandable, although the reading will reveal its disjointed organization.

As an update, I happened to find a blog-article at which benefited by an excellent discussion in its own comments section. This remarkably civil exchange of private opinions and interpretation should serve as an example of the public opinions about the DC v HELLER when the question "whether the second amendment is an individual or a collective right" is considered objectively by private persons.