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Thursday, January 31, 2013

Firearm(s) no "right" but wedge distracting from underlying issues


America burning: righteous self-immolation
Editing, comment by 
Carolyn Bennett

U.S. Constitution provides no right of individuals to keep and bear arms guns 

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 thus reads the Second Amendment to the Constitution of the United States.

he National Rifle Association (not unlike religionists) cherry picks texts without regard for contexts, historical and otherwise ─ “right of the people to keep and bear arms.” Even more ridiculously, their mantra: lock and load, arm all of us, everybody else is a terrorist, shoot to kill, take no prisoners. “Keep me and mine safe.”     

But the Supreme Court of the United States and appeals courts have focused on ‘well-regulated militia’ and ‘security of a free State’ to rule that Second Amendment rights are reserved to states and their militias – what are today National Guards.

“Since the Supreme Court’s unanimous Miller decision in 1939,” Jeff Cohen wrote in a 2000 article, “all federal appeals courts, whether dominated by liberals or conservatives, have agreed that the Second Amendment does not confer gun rights on individuals.”

U.S. v. Miller legacy

Since the U.S. Supreme Court ruling in U.S. v. Miller [307 U.S. 174, 1939], the meaning of the Second Amendment, as a matter of law, has been settled.

n Miller, the Court ruled that the ‘obvious purpose’ of the Second Amendment was to ‘assure the continuation and render possible the effectiveness’ of the state militia. And since Miller, the Supreme Court has addressed the Second Amendment twice more, upholding New Jersey’s strict gun control law in 1969 and upholding the federal law banning felons from possessing guns in 1980. Furthermore, twice (1965 and 1990), the U.S. Supreme Court has held that the term ‘well-regulated militia’ refers to the National Guard.

 In the early 1980s, the Supreme Court addressed the Second Amendment issue again, after the town of Morton Grove, Illinois, passed an ordinance banning handguns (making certain reasonable exceptions for law enforcement, the military, and collectors).

After the town was sued on Second Amendment grounds, the Illinois Supreme Court and the U.S. Seventh Circuit Court of Appeals ruled that not only was the ordinance valid, but there was no individual right to keep and bear arms under the Second Amendment (Quillici v. Morton Grove). In October 1983, the U.S. Supreme Court declined to hear an appeal of this ruling, allowing the lower court rulings to stand.
In 1991, former U.S. Supreme Court Chief Justice Warren Burger, a Minnesotan who identified himself as “a gun man,” addressed the Second Amendment drama:

U.S. Supreme Court
interior view
The subject of one of the greatest pieces of fraud, I repeat the word ‘fraud’ on the American public by special interest groups that I have ever seen in my lifetime... [the NRA] ha(s) misled the American people and, I regret to say, they have had far too much influence on the Congress of the United States than, as a citizen, I would like to see.

The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon...

[S]urely the Second Amendment does not remotely guarantee every person the constitutional right to have a ‘Saturday Night Special’ or a machine gun without any regulation whatever.

There is no support in the Constitution for the argument that federal and state governments are powerless to regulate the purchase of such firearms...

U.S. Supreme Court
Chief Justice
Warren Earl Burger
Fifteenth Chief Justice of the United States Supreme Court - Warren Burger

Described as a justice with conservative leanings considered an “originalist,” who delivered a variety of “transformative” decisions during his tenure, Warren Earl Burger (b. September 17, 1907, d. June 25, 1995) was Chief Justice of the United States Supreme Court from 1969 to 1986.

He was born in Saint Paul, Minnesota, the son of Swiss German descendants, his father a traveling salesman and railroad cargo inspector, his grandfather an immigrant from Switzerland who at 14 age had joined the Union Army, was later wounded in the Civil War, and received the Medal of Honor.

arren Burger grew up on the family farm near the edge of Saint Paul, graduated high school then attended University of Minnesota night school, while selling insurance life; and in 1931, graduated magna cum laude from William Mitchell College of Law (then St. Paul College of Law) and entered private law practice.

In 1952, at the Republican convention, Burger played a key role in Dwight D. Eisenhower’s nomination by delivering the Minnesota delegation. After he was elected, President Eisenhower appointed Burger as the Assistant Attorney General in charge of the Civil Division of the Justice Department. In 1956, Eisenhower appointed him to the U.S. Court of Appeals for the District of Columbia Circuit and Burger remained on the Court of Appeals for thirteen years. In 1969, President Richard M. Nixon nominated Burger to the Chief Justice position. On September 26, 1986, Burger retired and led the campaign to mark the 1987 bicentennial of the United States Constitution. He commissioned the construction of the Constitution Bicentennial Monument (The National Monument to the U.S. Constitution). 

Inheritors dispense with reason and foolishly wedge, divide, undermine

Despite a prevailing truth in law, special interest groups continue to generate tremendous support for individual right to keep and bear arms while claiming that no Article of the Bill of Rights is more important to the preservation of human liberties. They have succeeded in making the Second Amendment one of the most controversial legal issues in this country.
“As a result,” Media critic and author Jeff Cohen concludes, “the United States remains the only nation whose citizens can still, to a broad extent, exercise the right to keep and bear arms”; and this right “has cost the United States dearly in lives of persons killed by the disaffected, the unstable and the emotionally ill.”

ays-God-Guns wedging evades critical underlying issues.

Concerning the right-left black-white dance over guns, Jeff Cohen writes, while “a correlation between gun laws and gun deaths is too obvious to ignore; mainstream journalists often ignore another key factor” that contributes to the United States’ inordinately high violent crime rate: poverty.  

But there many other underlying issues: poverty, violence (not all shooters are insane, clinically impaired or “criminals” ─ why are they so angry or paranoid or in a state of hatred?); bribery and influence peddling in government; Americans’ self-important penchant for blaming, deepening the social divide   instead of coming together and confronting and solving critical human problems for the common good.

t is interesting to me that Chief Justice Warren Burger was considered conservative, was appointed to the high court by Republican presidents;  and also led the U.S. Supreme Court in some of most progressive rulings in U.S. history. Though Burger held for Georgia cases against sodomy (1986) and reinstatement of the death penalty (1976), he led the Supreme Court’s:

Swann v. Charlotte-Mecklenburg Board of Education (1971), a unanimous ruling supporting busing to reduce de facto racial segregation in schools

United States v. U.S. District Court (1972), another unanimous ruling against the Nixon Administration’s desire to invalidate the need for a search warrant and the requirements of the Fourth Amendment in cases of domestic surveillance

Furman v. Georgia (1972), a 5-4 decision invalidating all death penalty laws then in force, (although he dissented from the decision).

U.S. Supreme Court
Chief Justice
Warren Earl Burger
Roe v. Wade (1973) voting with the majority to recognize a broad right to privacy that prohibited states from banning abortions

Emphasized maintenance of Checks and Balances between the branches of government

United States v. Nixon (July 24, 1974), in a unanimous 8-0 decision in against President Nixon’s attempt to keep several memos and tapes relating to the Watergate Affair private.

Immigration and Naturalization Service v. Chadha (1983), Burger held for the majority, that Congress could not reserve a legislative veto over executive branch actions.

One of the reasons American society overall fails to make continuous progress is that Americans in all matters deal in blacks and whites, distortion and misrepresentation, right, righteous, and wrongs. There is no discussion, no give and take, no real debate, no deliberation or self-reflection in this country. Everybody and his or her group engage in grandstanding and selfish self-perpetuation, pushing sound bites and grabbing a penny’s worth of fame.

Sources and notes

“Gun Control, the NRA and the Second Amendment” (By Jeff Cohen, a version of this appeared in Brill's Content, February 2000), http://fair.org/article/gun-control-the-nra-and-the-second-amendment/

Jeff Cohen

Associate professor in journalism, author, media critic and lecturer Jeff Cohen is founding director of the Park Center for Independent Media at Ithaca College (New York). Cohen is 1986 founder the media watch group Fairness and Accuracy in Reporting (FAIR) in 2011 the online activist group RootsAction.org.

Cohen was senior producer of MSNBC’s Phil Donahue primetime show until it was terminated three weeks before the Iraq invasion. His latest book is Cable News Confidential: My Misadventures in Corporate Media.

“RIGHT TO KEEP AND BEAR ARMS” http://www.lincoln.edu/criminaljustice/hr/Arms.htm

Continued: Since the Miller decision, lower federal and state courts have addressed the meaning of the Second Amendment in more than thirty cases. In every case, up until March of 1999 (see below), the courts decided that the Second Amendment refers to the right to keep and bear arms only in connection with a state militia.

Even more telling, in its legal challenges to federal firearms laws like the Brady Law and the assault weapons ban, the National Rifle Association makes no mention of the Second Amendment.

Indeed, the National Rifle Association has not challenged a gun law on Second Amendment grounds in several years.

More about right to keep and bear arms Websites:
Legal Theory of the Right to Keep and Bear Arms
The Right to Keep and Bear Arms
The Second Amendment and the Historiography of the Bill of Rights
The Second Amendment and the Ideology of Self-Protection
Second Thoughts on the Second Amendment
The Second Amendment Foundation
Historic Supreme Court Decisions


Lincoln University Criminal Justice Program, Lincoln University, PA 19352, http://www.lincoln.edu/criminaljustice/

 Warren Burger biographical brief, http://en.wikipedia.org/wiki/Warren_E._Burger

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