2ndChildhood
08-02-2006, 06:19
Our crummy newspaper charges for archived articles after 10 days so here's the entire letter:
Interesting part about the two cases he cites.
http://www.coloradoan.com/apps/pbcs.dll/article?AID=/20060802/OPINION04/608020343/1014/OPINION
There have been recent inquiries to the Coloradoan regarding private gun ownership under the Second Amendment. The simple answer to this question about the so-called rights under the Second Amendment to the U.S. Constitution is that you don't have any.
The only rights that individuals have regarding the private ownership of weapons is what are granted by the Constitution of the State of Colorado.
Of course, to understand the above you must put aside the propaganda put out by the National Rifle Association and study the Constitution and its amendments.
An excellent source of the history of the Constitution and its Amendments is www.justicelearning.org.
The text of the amendment is "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."
The amendment consists of one sentence of 27 words. It cannot be interpreted in pieces, but only as a whole, the NRA to the contrary.
The principle debate concerns whether the right to bear arms applies to individuals or only to a militia.
The Supreme Court has never decided the issue; however, there is currently a conflict between two Circuit Courts of Appeals that make the issue ripe for review by the Supreme Court, but unfortunately the individuals involved in the two cases have not seen fit to appeal either case to the Supreme Court. See U.S. v Emerson 270 F. 3d 203 (5th Cir. 2001) is in favor of individual ownership and Silveira v Lockyer 312 F. 3d 1052 (9th Cir. 2002) is against individual ownership.
Both opinions are rich in history and case law in support of their conclusions and can be read at www.findlaw.com/casecode/; click on the appropriate circuit under the heading "Case Law" and then type in either "Emerson" or "Silveira" in the "Party Name Search" and then click on "Search."
The legal cases aside, there is a fundamental question whether the Second Amendment is applicable to the states at all. To answer this question, it is necessary to look at the history of Amendments.
The first 10 amendments to the Constitution were adopted in 1791.
From 1791 until the adoption of the 14th Amendment in 1868, the courts interpreted the Bill of Rights as applying only to the federal government, not to the states.
Even after the adoption of the 14th Amendment, with its "due process and privileges and immunities" clauses, the courts continued to interpret the 14th Amendment narrowly. Not until the 1920s did the courts begin to apply the provisions of the Bill of Rights, one by one, to the states, incorporating them via the "due process" clause of the 14th Amendment.
But even today, the courts have not extended the Second Amendment or the Seventh Amendment to the states.
So the Second Amendment only applies to the federal government, leaving the states to regulate the ownership of weapons as it sees fit provided that the state legislation does not conflict with any federal law on the same subject.
Of course, the gun lobby will continue to believe what it wishes in spite of the law or history to the contrary; however, believing it does not make it a fact.
William C. Roemer is a retired attorney. He lives in Fort Collins.
Interesting part about the two cases he cites.
http://www.coloradoan.com/apps/pbcs.dll/article?AID=/20060802/OPINION04/608020343/1014/OPINION
There have been recent inquiries to the Coloradoan regarding private gun ownership under the Second Amendment. The simple answer to this question about the so-called rights under the Second Amendment to the U.S. Constitution is that you don't have any.
The only rights that individuals have regarding the private ownership of weapons is what are granted by the Constitution of the State of Colorado.
Of course, to understand the above you must put aside the propaganda put out by the National Rifle Association and study the Constitution and its amendments.
An excellent source of the history of the Constitution and its Amendments is www.justicelearning.org.
The text of the amendment is "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."
The amendment consists of one sentence of 27 words. It cannot be interpreted in pieces, but only as a whole, the NRA to the contrary.
The principle debate concerns whether the right to bear arms applies to individuals or only to a militia.
The Supreme Court has never decided the issue; however, there is currently a conflict between two Circuit Courts of Appeals that make the issue ripe for review by the Supreme Court, but unfortunately the individuals involved in the two cases have not seen fit to appeal either case to the Supreme Court. See U.S. v Emerson 270 F. 3d 203 (5th Cir. 2001) is in favor of individual ownership and Silveira v Lockyer 312 F. 3d 1052 (9th Cir. 2002) is against individual ownership.
Both opinions are rich in history and case law in support of their conclusions and can be read at www.findlaw.com/casecode/; click on the appropriate circuit under the heading "Case Law" and then type in either "Emerson" or "Silveira" in the "Party Name Search" and then click on "Search."
The legal cases aside, there is a fundamental question whether the Second Amendment is applicable to the states at all. To answer this question, it is necessary to look at the history of Amendments.
The first 10 amendments to the Constitution were adopted in 1791.
From 1791 until the adoption of the 14th Amendment in 1868, the courts interpreted the Bill of Rights as applying only to the federal government, not to the states.
Even after the adoption of the 14th Amendment, with its "due process and privileges and immunities" clauses, the courts continued to interpret the 14th Amendment narrowly. Not until the 1920s did the courts begin to apply the provisions of the Bill of Rights, one by one, to the states, incorporating them via the "due process" clause of the 14th Amendment.
But even today, the courts have not extended the Second Amendment or the Seventh Amendment to the states.
So the Second Amendment only applies to the federal government, leaving the states to regulate the ownership of weapons as it sees fit provided that the state legislation does not conflict with any federal law on the same subject.
Of course, the gun lobby will continue to believe what it wishes in spite of the law or history to the contrary; however, believing it does not make it a fact.
William C. Roemer is a retired attorney. He lives in Fort Collins.