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The Second Amendment, is it a right?

The Second Amendment, Is It A Right?

Will the United States Supreme Court eventually decide whether the Second Amendment really does guarantee an individual right to keep and bear arms? Many people believe such a decision is inevitable whether it comes in two years or 20 years.

Of course, the anti-gunners and many of their friends in the media and in politics tell us that the Supreme Court has already ruled that the Second Amendment guarantees only a collective right of the states to have militias. That's absolute nonsense with a foundation only in liberal political theology, not historical fact.

"The Supreme Court has never interpreted the Second Amendment to mean some collective right," noted Mike McCabe, general counsel for the National Rifle Association.

"The overwhelming weight of evidence indicates that the framers of the Constitution intended it to guarantee an individual right," McCabe added. "A more and more compelling case is being made all the time."

No doubt McCabe was referring to the numerous historical studies of the Second Amendment that have been conducted over the past few years and clearly show that an individual right was intended.

McCabe is also encouraged by some of the wording that he's seeing in decisions being handed down by federal courts. "In fact, I'm feeling pretty good about this issue?" he exclaimed.

These are not cases that directly address the Second Amendment, but they do give some insight into what the federal court justices are thinking.

In writing the opinion for the majority in U.S. v. Rene Martin Verdugo-Urquidez in late February, Chief Justice William Rehnquist made it clear that the term "the people" in the Fourth Amendment means the same as it does in the First, Second, Ninth and Tenth Amendments.

The issue in the case was whether Verdugo-Urquidez, a resident of Mexico who had been brought to the United States and convicted of charges related to the torture-murder of DEA agent Enrique Camarena Salazar, was protected from illegal searches and seizures of his papers in Mexico by U.S. and Mexican officials.

A District Court had granted his motion to suppress the evidence. The U.S. Court of Appeal for the Ninth Circuit had affirmed the lower court, but the Supreme Court reversed the decision by a 6-3 margin.

What does this have to do with the Second Amendment? In handing down the decision, the Supreme Court held that the term "the people" meant "a class of persons who are part of a national community or who have otherwise developed sufficient connection to be considered part of that community."

Chief Justice Rehnquist wrote, " ... `the people' seems to have been a term of art employed in select parts of the Constitution. The preamble declares that the Constitution is ordained and established by `the people of the United States.'

"The Second Amendment protects `the right of the people to keep and bear arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to `the people.'"

That statement will be difficult for the anti's to explain away. More likely, they simply will ignore it.

However, McCabe seems more excited about a case the Supreme Court is considering as this issue of Shooting Industry goes to press: Perpich v. Department of Defense.

The case concerns the constitutionality of the Montgomery Amendment which removes from states the power to withhold consent to foreign training of the National Guard because of objections to location, purpose, type and schedule of training. Minnesota Gov. Rudy Perpich claims the Montgomery Amendment is unconstitutional.

Oral arguments on the case back in March centered on what exactly is the National Guard, the militia and the unorganized militia.

An amicus curiae brief filed by the Firearms Legal Defense Fund examines the history of the Second Amendment and points out that, "The term `militia' was understood by the framers to mean the armed populace at large. In contradistinction, the framers considered a select militia, like the present National Guard, to be part of the standing Army."

It will be interesting to see if the Supreme Court further defines what it believes the Second Amendment actually means in its ruling on this case.

But really it's more than just "interesting." In my opinion, the growing number of oppressive gun laws being passed at state and local level around the country almost guarantees that eventually the U.S. Supreme Court will hand down a direct decision on the Second Am-endment.

In the meantime, these other decisions allow us to at least read the wind and get some idea of what the Supreme Court justices are thinking. Right now, there are some very preliminary indications that a favorable breeze may be blowing.

Speaking of breezes, the hot air of the anti-gunners continues on Capitol Hill. That was especially evident at the House Judiciary Subcommittee on Crime's April 26 hearing on HR-993, which would make it "unlawful for any person to manufacture, assemble, transfer, or possess" any handgun which the Secretary of the Treasury "determines to be unsuitable for lawful sporting purposes ..." In other words, it would ban the domestic production of handguns already banned from import.

The bill would not apply to fire arms already in the hands of gunowners at the time of its passage.

Among those testifying were: Edward S.G. Dennis Jr., assistant attorney general of the Criminal Division of the Department of Justice; and Richard Cook, chief of Firearms Division Law Enforcement of the Bureau of Alcohol, Tobacco and Firearms (ATF).

Dennis and Cook basically repeated the Bush Administration's position that HR-993 would infringe on the right of Americans to own handguns for self-defense.

James Brady, former White House press secretary for President Reagan, spoke for Handgun Control, Inc. (HCI). Michael Beard, executive director of the Coalition to Stop Gun Violence (formerly known as the National Coalition to Ban Handguns), also testified.

The subcommittee also heard from a pro-gun panel composed of:

- Jim Baker, director of Governmental Affairs for the NRA's Institute for Legislative Action;

- Neal Knox, executive director, The Firearms Coalition;

- Larry Pratt, executive director of Gun Owners of America (GOA); and

- John Snyder, public affairs director and Washington lobbyist for the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA).

Beard admitted under questioning that he really doesn't see a need to own any handguns, and Brady claimed he was shot by a gun that would have been banned under HR-993.

However, the highlight of the hearing had to be Rep. Larry Smith's (D-FL) hysterical reaction to Snyder's testimony.

Snyder cited specific incidents in which citizens had used handguns for self-defense and mentioned how inexpensive handguns were the main weapons used by the resistance in the Warsaw Ghetto uprising during World War II.

He then quoted Aaron Zelman, founder and executive director of Jews for the Preservation of Firearm Ownership, as stating, among other things, that, "In Nazi Germany, the government, the media and the police worked together to destroy Jews. Today in America, elements of the same forces are combining their best efforts to destroy gun ownership."

Smith, the sponsor of HR-993, went berserk. He told Snyder his testimony was "beneath contempt" and totally ridiculous. The anti-gun representatives present clearly were unhappy with a hearing in which the pro-gun spokesmen took the offensive. No date has been set for a mark-up on Smith's bill.

PHOTO : John Snyder, public affairs director of the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA), drove the anti-gunners up the wall at the House Judiciary Subcommittee of Crime's April 26 hearing on HR-993.

PHOTO : Mike McCabe, general counsel for the NRA, said he is pleased with the wording in some recent federal court decisions. "In fact, I'm feeling pretty good about this issue," he exclaimed.
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Author:Schneider, Jim
Publication:Shooting Industry
Date:Jun 1, 1990
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