Chief Justice Warren Burger & RKBA

I remember driving through Oregon on secondary hiways, on my way to hunting grounds, and seeing wayside-billboards (often crudely painted) stating:

Impeach Justice Warren Burger!


(This is WAY after the "Impeach Earl Warren" billboards, which I understood had to do with his Civil Rights ... Brown vs Board of Education, and Row vs Wade ... leads. I understood that stuff, whether or not I agreed with them. Sometimes, I did!)

I never understood why anyone would want to impeach a Chief Justice of the Supreme Court of America, until I read this article which he wrote in regards to:

The Right To Bear Arms

A distinguished citizen takes a stand on one of the most controversial issues in the nation

By Warren E. Burger, Chief Justice of the United States (1969-86)
Parade Magazine, January 14, 1990, page 4

With the benefit of 35 years of experience, and absolutely NO legal training, I think I'm prepared to discuss his concept of what the 2nd Amendment really means. Not what I think it means ... but only what HE thought it means>

Commencing now:

Our metropolitan centers, and some suburban communities of America, are setting new records for homicides by handguns. Many of our large centers have up to 10 times the murder rate of all of Western Europe. In 1988, there were 9000 handgun murders in America. Last year, Washington, D.C., alone had more than 400 homicides -- setting a new record for our capital.

Interestngly, Burger ignores the fact that DC forbids its citizenry to defend itself with firearms, a situation which was almost unique (except for Chicago and New York City) during this period .... and which, somehow, continues even now.

<>Of course, Great Britain hadn't yet adopted such draconian measures, which may explain the cmparison between DC and "Western Europe".

The Constitution of the United States, in its Second Amendment, guarantees a "right of the people to keep and bear arms." However, the meaning of this clause cannot be understood except by looking to the purpose, the setting and the objectives of the draftsmen. The first 10 amendments -- the Bill of Rights -- were not drafted at Philadelphia in 1787; that document came two years later than the Constitution. Most of the states already had bills of rights, but the Constitution might not have been ratified in 1788 if the states had not had assurances that a national Bill of Rights would soon be added.

This is all non-sequitor comments. There is a large body of original and supplemental commentary establishing the intent of the constitutional framers. Almost unanimously, these comentators voiced the opinion that the purpose of the 2nd Amendment was to provide for defense against an oppressive Federal Government ... a concept which conveiently (for his unstated agenda) is never here addressed by Burger.

People of that day were apprehensive about the new "monster" national government presented to them, ...

This apprehension is again seen today. Burger glosses over this original apprehension, and thus implicitly suggests that it is somehow reprehensible. His very words support, probably without noticing, that the apphrehension is justifiable.

... and this helps explain the language and purpose of the Second Amendment. A few lines after the First Amendment's guarantees -- against "establishment of religion," "free exercise" of religion, free speech and free press -- came a guarantee that grew out of the deep-seated fear of a "national" or "standing" army. The same First Congress that approved the right to keep and bear arms also limited the national army to 840 men;

Here, Burger is vague (actually, not forthcoming) about "the purpose of the Second Amendment." At this time he makes no obvious effort to define or interpret it. However, he subtly expands his hypothesises of a relationship between the 2nd amendment and fear of a "monster" government, although he resists the not-so-obvious attempt to define it here. It's just 'verbiage' at this point.

However, he manages to slip into the monologue the idea that a 'standing army' should consist of no more than 840 men.

Consider that at the time of the First Congress, the population of the United States was probably about (or less than) one millioon people. Currently, the population is in excess of 250 million. Extrapoplating arithmetically, the appropriate size of an American standing army must be assumed to be about 220,000.

My understanding is that there are about 140,000 troops in Iraq now, which leaves. 80,000 military not accounted for. Distribute that number among the military in Afghanistan, residential 'home guard' troops such as Coast Guard, Ready Reaction Troops, uncommitted Air Force, Marines, troops in training etc. and we can probably derive a Standing Army committment which is very much in excess of the 840 troops deemed necessary in 1779.

What has this to do with the Second Amendment?
Not much, except that Burger falaciously provides a NUMBER of active troops which on the face of it seems absurdly low compared to current staffing, and only SUGGESTS that it has a bearing on the 2nd amendment because of reasons which he presumably will later present.

Read on ....

Congress in the Second Amendment then provided:

"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."

In the 1789 debate in Congress on James Madison's proposed Bill of Rights, Elbridge Gerry argued that a state militia was necessary:

"to prevent the establishment of a standing army, the bane of liberty ... Whenever governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia in order to raise and army upon their ruins."

We see that the need for a state militia was the predicate of the "right" guaranteed; in short, it was declared "necessary" in order to have a state military force to protect the security of the state. That Second Amendment clause must be read as though the word "because" was the opening word of the guarantee. Today, of course, the "state militia" serves a very different purpose. A huge national defense establishment has taken over the role of the militia of 200 years ago

Suddenly, Burger presents the "militia" as being a "state militia". He does not provide any justification for presuming that the terms are interchangeable, but he does encourage the reader to presume the equivalency. If one presumes that the "National Guard" is a "State Militia", and a "State Militia" is equivalant to a "Militia", many of his subsequent arguments may seem to be reasonable. However, he has failed to prove (or even to attempt to prove) the equivalency.

Some have exploited these ancient concerns, blurring sporting guns -- rifles, shotguns and even machine pistols -- with all firearms, including what are now called "Saturday night specials." There is, of course, a great difference between sporting guns and handguns. Some regulation of handguns has long been accepted as imperative; laws relating to "concealed weapons" are common. That we may be "over-regulated" in some areas of life has never held us back from more regulation of automobiles, airplanes, motorboats and "concealed weapons."

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We need to become accustomed to undocumented, unwarranted (excuse the expression) assumptions, because this document is based on them. Here are some more;

Without always actually saying so; using nothing more than cleverly applied inuendo, Burger:

• equates " ... rifles, shotguns and even machine pistols ..."
• equates them with "Saturday night specials."
• states unequivacably that handguns are not "sporting arms"
• asserts that " Some regulation of handguns has long been accepted as imperative";
• asserts the equivalencty between " ... automobiles, airplanes, motorboats and "concealed weapons.

Perhaps it should be mentioned here, for the first time (although surely not for the last time) that vehicles are both licensed and regulated, and their operators are licensed and regulated, because vehicle operation is commonly assumed to be "a privilege, not a right". In fact, this is specifically stated in the Motor Vehicle Handbooks of most states. On the other hand, posession of firearms as NEVER been identified as a 'privilege'; whenever referenced, it is considered to be a "right". This is probably the crux of the argument for both sides, because the sides of the Gun Control argument is most commonly defined as the diference between a 'privilege' ... which can be taken away capriciously by the stage ... and a 'right' ... which is constitutionally protected.

Let's look at the history.

First, many of the 3.5 million people living in the 13 original Colonies depended on wild game for food, and a good many of them required firearms for their defense from marauding Indians -- and later from the French and English.

Another non-sequitr, as the 2nd amendment has never been seriously defined as the right to hunt.

Underlying all these needs was an important concept that each able-bodied man in each of the 133 independent states had to help or defend his state.

No argument there.

Americans wanted no part of this. A state militia, like a rifle and powder horn, was as much a part of life as the automobile is today; pistols were largely for officers, aristocrats -- and dueling

This is an egrigious attempt to establish that there was no legitimate (or plebian) justification for possession of a 'pistol', which term doesn't mean the same thing today as it did then.

In the 18th century, a 'pistol' was a handgun. A firearm without an extended stock, and with a short barrel. The terms here are in themselves misleading because the 'pistol' of that era was typicallyl a single-shot 9per barrel) flintlock or percussion-cap firearm with an over-all length of from 18 inches to two feet.

The issue STILL isn't about possession of firearms, in Burger's worldview. He is attempting to fix the reader's mind in the understanding that "rifles are good; pistols are bad". If his argument was consistent, ALL firearms would be regulated by the State, not just 'pistols'.

Against this background, it was not surprising that the provision concerning firearms emerged in very simple terms with the significant predicate -- basing the right on the necessity for a "well regulated militia," a state army.

There is still no justification for equating a "well regulated militia" with " a state army."

<>

In the two centuries since then -- with two world wars and some lesser ones -- it has become clear, sadly, that we have no choice but to maintain a standing national army while still maintaining a "militia" by way of the National Guard, which can be swiftly integrated into the national defense forces.

Burger's pont here seems to be, again, reinforcement of the equivalency of the term "militia" with "a state army": that is, the National Guard.

<>

Americans also have a right to defend their homes, and we need not challenge that.

But this is precisely what Burger is doing all though this opinion.
<>

Nor does anyone seriously question that the Constitution protects the right of hunters to own and keep sporting guns for hunting game any more than anyone would challenge the right to own and keep fishing rods and other equipment for fishing -- or to own automobiles. To "keep and bear arms" for hunting today is essentially a recreational activity and not an imperative of survival, as it was 200 years ago; "Saturday night specials" and machine guns are not recreational weapons and surely are as much in need of regulation as motor vehicles.

Again, the 2nd amendment does not, nor was it ever intended to, justify possession of firearms for the purpose of hunting. The terminology is never mentioned in the 2nd amendment. He extends his argument to equate hunting (without establishing that he is doing anything more than defending hunting) with fishing. Also, he continues to compare the ownership and usage of motor vehicles with the ownership and usage of firearms. The 2nd amendment is not about the right to hunt game; it is about ".... the right of the people to keep and bear Arms ...".

Americans should ask themselves a few questions. The Constitution does not mention automobiles or motorboats, but the right to keep and own an automobile is beyond question; equally beyond question is the power of the state to regulate the purchase or the transfer of such a vehicle and the right to license the vehicle and the driver with reasonable standards. In some places, even a bicycle must be registered, as must some household dogs.

Now he is not only comparing the right to keep an bear arms (which can only be revoked for felonious cause by a court) with the privilege of owning and operating a vehicle (which can be revoked for cause by a magistrate); he even equates it with the right to own a bicycle, or a dog!
Had this man so little regard for the rights of the citizenry, that he compares it to dogs? Apparently so!

If we are to stop this mindless homicidal carnage, is it unreasonable:

1. to provide that, to acquire a firearm, an application be made reciting age, residence, employment and any prior criminal convictions?
2. to required that this application lie on the table for 10 days (absent a showing for urgent need) before the license would be issued?
3. that the transfer of a firearm be made essentially as with that of a motor vehicle?
4. to have a "ballistic fingerprint" of the firearm made by the manufacturer and filed with the license record so that, if a bullet is found in a victim's body, law enforcement might be helped in finding the culprit? These are the kind of questions the American people must answer if we are to preserve the "domestic tranquillity" promised in the Constitution.
   

1. Not necessarily, but the courts have consistently ruled in this vein since Burger's tenure.
2. A 10-day waiting period is just something that Burger cooked up in his own fevered mind.
3. Again, the right to own a firearm is not, and has never been, the same thing as the PRIVILEGE to own and operate a vehicl.
4. We are seeing now that the concept of a "ballistic fingerprint", although it is the rant-de-jour for liberal gun-grabbers, is neither scientifically feasible nor econimically advantageous.
   

I very much regret that Warren Burger is dead.

We should have impeached the son of a bitch while we had the chance.