First, I offer a eulogy, followed by a section defining rights and giving examples of their denial. Then I attempt a deconstruction of the Second Amendment itself.
First, I offer a eulogy
QUOTE:
A eulogy, a praise of merits, is offered at the funeral of a good person who died. Today, I eulogize - not a person but an entity, namely, the faith untold millions of USA citizens once had in their government. That faith died (RIP), though diehards will insist their faith in our form of government is as strong as ever; what died was faith in our elected representatives. But the diehards are spitting in the wind on this one - for what good does it do to have system that looks great on paper but which can't manage to assure election of the good, decent, honorable lawmakers and judges needed to bring that system to life?
I understand the pain of members of the NRA and the Tea Party et al, who have been traumatized by the death of that which I eulogize. Their faith has been replaced by fear that a too-strong central government will enslave all of us. And for this reason, millions of them want guns or at least the chance to obtain them without difficulty. Their fear is so strong that it has given rise to illogical defenses of the Second Amendment which border on the fanatic.
In closing, I will remind the assembled mourners that we are not little, powerless people. Even though states' rights no longer exist, We-the-People do have practical, tactical options at our disposal [see Footnote 1].
:UNQUOTE.
Let the Deconstruction Begin
Exactly what is a right?
USA's citizens have certain rights, the first group of which are known as the Bill of Rights. The United Nations has a list called the Universal Declaration of Human Rights on its website. Then there are the kinds of "rights" assumed by large numbers of people - such as the expectation of benefits from certain entitlement programs.
Then of course there's the whole debate about rights vs. privileges. I believe that we only have rights to the extent that they are enforced. For instance, you have the right to remain silent once your Miranda rights are read to you. But that right vanishes as soon as some cop decides to beat a confession out of you. BTW, if you "confess" hoping to later explain to the judge that you were coerced, too often the judge will ignore you.
Then there's an example afforded by your so-called rights under the Seventh Amendment, which states:
"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of common law."
About that twenty dollars stipulation:
QUOTE:
No power was defined to index or adjust the twenty dollar threshold, defined in the amendment, for inflation. ... If inflation were considered, however, the value cited would have amounted to several hundred U.S. dollars, as of 2011. Congress has never extended federal diversity jurisdiction to amounts that small ... Under the current Federal Rules of Civil Procedure (28 U.S.C. §1332), the amount in dispute in diversity cases must exceed $75,000 USD in order for the case to be heard in federal court.
:UNQUOTE: http://en.wikipedia.org/wiki/Seventh_Amendment_to_the_United_States_Constitution
Translation? Even though the 7th Amendment specifies a $20.00 minimum (which, if adjusted for inflation becomes several hundred dollars), you can't access a federal court unless your case involves at least $75,000. So much for your right to a trial by jury.
What about our rights under the one man, one vote doctrine? I direct you to this link which contains this sentence:
http://ind4prez2012.blogspot.com/2010/12/obamas-legacy-filibustered.html :
"More importantly, the practice of filibuster is in direct violation of at least three different sections of the US Constitution [as follows]:"
What about your right to free speech? If you, like many of us, are "at will" employees, your boss can fire you if he overhears you expressing an opinion he doesn't like - even if you're not on the job and are (say) in a public park talking to friends. And it won't do you any good to cite the First (at the national level) and the Fourteenth (at the state level) amendment protections of free speech, since your boss doesn't operate at either level.
However, I object since the US Declaration of Independence includes this statement: "...all men...are endowed...with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." Since one of our "unalienable Rights" includes "Liberty," I have to ask: "How can a citizen claim to possess Liberty if he can't speak freely from fear of his boss?" And were I to lose my job because my boss didn't like what I had to say, then I will also be denied a reasonable "pursuit of Happiness."
I am not impressed by arguments to the effect: This "unalienable Rights" sentence is in the Declaration of Independence and not the Constitution. As far as I'm concerned, especially since many of the same crew that wrote the Declaration also wrote the Constitution, the Declaration's words have constitutional force. Especially in light of the Ninth Amendment's protection of non-enumerated rights.
For the record, here's a definition of an "At Will employee," who the Justice Department believes doesn't have a Constitutionally-protected right to free speech:
QUOTE:
[TITLE of article]: Employment At Will: What Does It Mean?
[Appearing in bold under the article's title]: If you are employed at will, your employer does not need good cause to fire you.
An at-will employee can be fired at any time, for any reason (except for a few illegal reasons, spelled out below). If the employer decides to let you go, that's the end of your job--and you have very limited legal rights to fight your termination.
On to the Second Amendment itself
The 2nd Amendment states:
"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."
I believe the Founding Fathers made a profound mistake by not simply having stated the Second as follows:
"The right of the people to keep and bear arms shall not be infringed."
There! That covers our militia needs as well as our right to self-defense - a right, strangely enough, not mentioned anywhere in the Constitution. In fact, as stated, it's not possible to see the Second as covering self-defense though, by yet another famous 5-4 decision [District of Columbia v. Heller (2008)], SCOTUS managed to conjure up that coverage.
The following link, containing the following quote, shows the folly of having stated the Second as the Founding Fathers did:
http://ind4prez2012.blogspot.com/2012/07/how-i-killed-second-amendment.html
"The Second is the only amendment that gives a reason for its being; if that reason ceases to be reasonable, then the Amendment dies. In effect, it commits suicide by means of a built-in kill mechanism."
"well regulated Militia" indeed
As you read the next quote, ask yourself, "How can well regulated Militia possibly refer to those available for conscription but have not yet even trained for their mission?
QUOTE:
Further, the Court found that the phrase “well regulated Militia” referred not to formally organized state or federal militias, but to the pool of “able-bodied men” who were available for conscription.
The Founding Fathers were counting on the people-at-large being sufficiently armed to act as a counterbalance to the possibility of central government tyranny. In order for that to work, however, we'd need something above and beyond the state militias which can be pressed into the service of the President. A militia focused only on weapons training and tactics - specifically barred as an organization from participating in any missions - would have to be created by the 50 states and exclude the federal government from participating.
I specified "barred as an organization," since that would make it easier for individuals in that organization to resist being pressed into unwilling service by a tyrannical central government.
The Court's decision on sawed-off-shotguns
QUOTE:
In [the 1939 case] United States v. Miller,4 the Court sustained a statute requiring registration under the National Firearms Act of sawed–off-shotguns.... “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than 18 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.”
SCOTUS was concerned about a "reasonable relationship" between sawed-off-shotguns and the "preservation or efficiency of a well-regulated militia." However, weapons like machine guns and RPGs are, in the words of the last sentence quoted above, "part of the ordinary military equipment [which] could contribute to the common defense" as well as provide a greater deterrence against the possibility of our central government ever seeking to tyrannize us. So why won't SCOTUS include these modern weapons as part of our arsenal protected by the Second?
Final Comments
As each day passes, We-the-People are becoming nothing more than cogs in a well-oiled machine. Worse? We have become divided against ourselves, becoming so afraid and polarized that we can't even think straight. We have become so thoroughly programmed that we buy into the arguments about why felons can't own guns. I say "felons," since there is no such thing as an ex-felon - at least, not in the eyes of the law. Once a felon pays his debt to society by serving his time and paying his fines, he will always remain a felon and continue being denied his Second Amendment rights for the rest of his life. We buy into that, since we assume all felons (note: among whom are non-violent offenders) will always pose a risk to the rest of us.
So much for the rights of these ex-offenders...but nobody seems to care.
So much for the rights of these ex-offenders...but nobody seems to care.
However, we might reach a point someday where the ex-felon, one who has had a greater than normal chance of suffering society's repressions up close, would be a welcome addition to our virtual militia. The government, on the other hand (realizing this), seeks to disenfranchise this sizable group which would be more than willing and able to offer the resistance necessary to settle old scores.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Steven Searle, Founder of the Independent Contractors' Party
Candidate for US President in 2008 and 2012
"A strong central government isn't your friend; it's not even a necessary evil. In fact, it's downright inefficient."
Footnote 1: http://ind4prez2012.blogspot.com/2011/05/general-strike-declared-by-steven.html and http://ind4prez2012.blogspot.com/2011/05/alternatives-to-fourth-reich.html . The last link describes a system I invented which could serve as the basis of a new US Constitution - a system I call Cross-Sectional Representation.
Contact me at bpa_cinc@yahoo.com
Contact me at bpa_cinc@yahoo.com
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