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.

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