10/25/2009 10:00:00 AM
Happiness is a warm gun
Legal-Ease
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| By Todd D. Wolfrum
Attorney-at-law |
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"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." - Second Amendment.
The Second Amendment stands odd among the other more abstract guarantees in the Bill of Rights. Where the First Amendment protects the right to speak and the Eighth protects against cruel and unusual punishment, the Second assures a right to possess a bored-out piece of metal. (There's also the matter of that superfluous first comma.)
A non-abstract right is rigid in nature, and therefore applies less well over changes wrought by time. Two hundred and twenty odd years after the founding, there is a threat of terrorism to our nation but no longer a threat of invasion (Mexican immigrants notwithstanding). The average citizen is more leery of groups who call themselves militias than of foreign armies - today's militias usually tend and intend to not be well-regulated.
Last year, the Supreme Court found in the case of District of Columbia v. Heller, that the Second Amendment indeed guarantees the right of an individual to own a gun. This marked the first time ever that the Court had recognized that right. This finding was a triumph for conservatives, a failure for liberals, and troubling for the future, as discussed later.
The Heller decision doesn't necessarily apply to you as an Ohio citizen. The ruling only applies to the Federal government's ability to restrict handguns. It is as yet undetermined whether the right to own a firearm extends to the citizens of states. The Supreme Court recently decided to hear an Illinois case with purpose to settle that issue.
The Fourteenth Amendment assures that the individual states cannot preempt rights guaranteed by the federal government. Illinois, for example, cannot restrict speech in a way that violates the federal right to speak freely. As of now, Illinois can, and does, ban handguns.
It is not certain that a right discovered by the Supreme Court will be incorporated through the Fourteenth Amendment and applied to the states. It is also not certain that the Cubs will fail to win the World Series next year, but history tends to teach us things.
Ohio has allowed its citizens to carry concealed weapons since 2004. To become licensed, you have to be over twenty-one years of age and complete twelve hours of handgun training: ten in the classroom, two on the range. You also have to pass a background check and cannot have a felony or drug conviction. A domestic violence conviction may also disable you.
Ohio has reciprocity with twenty-one other states with similar laws. Of our border states, an Ohio concealed carry license should be respected in Indiana, Michigan, and Kentucky, but not Pennsylvania or West Virginia. Call ahead.
Ohio allows its licensees three ways to carry a concealed handgun in a motor vehicle: In a closed case in plain sight, concealed in a locked glove box or case, or in a holster secured on the person.
How did Ohio and other states become so wise as to allow all this? Mainly because the Tenth Amendment, ensuring states their individuality, allowed different laws to be tested in different jurisdictions. Now, every state outside Illinois and Wisconsin is aware, through statistics, that private gun ownership prevents crime.
Back to constitutionality: There are people that think firstly, private citizens should be allowed to own a gun for protection and secondly, the Constitution does not guarantee that right. By its plain language, the Second Amendment was intended to maintain a militia.
Remember conservatives, you are an Antonin Scalia heart attack away from a liberal appointee and what could be some serious judicial activism. Beware discovered "rights": You win a gun you already had today, you lose what's left of a Constitution tomorrow.
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Posted: Monday, October 26, 2009
Article comment by:
John Bates Thayer
To better understand the Second Amendment to the United States Constitution it is helpful to consider how almost every reasonable person would interpret this amendment if it did not involve something which is considered controversial or politically incorrect by some and idolized by others. Arms in the possession of ordinary citizens meet both criteria. Let's, for the sake of argument, suppose that the Second Amendment dealt with books, not arms or weapons, and read like this: "A well educated electorate, being necessary to the maintenance of a free State, the right of the people to own and read books, shall not be infringed." Does anyone really believe that liberals would claim that only people who were eligible to vote should be allowed to buy and read books? Or that a person should have to have voted in the last election before the government would permit him or her to buy a book? Would the importation of books be banned if they did not meet an "educational purpose" test? Would some States limit citizens to buying "one book a month"? Would inflammatory "assault books" be banned in California?
Posted: Monday, October 26, 2009
Article comment by:
Jim Macklin
Actually the Second Amendment has only one comma.
It applies to firearms, ammunition, swords, knives and even spears.
The right to self-defense and the effective means is a fundamental right and state and local laws that disarm victims will be found to be unconstitutional.
Illinois crime rates are terrible and the disarmed average Illinois resident lives in fear.
Happiness is a cold gun on the belt and a perp afraid of the potential victim.
Posted: Monday, October 26, 2009
Article comment by:
Jim Kilpatrick
I's strongly suggest the autho do his homework before espousing BS. Specifically, I suggest he read the Parker v. DC and Heller v. DC court decisions and the references contained therein. The "collectivist right" BS has been debunked by both the Appeal court and the SCOTUS. Furthermore, regarding the so-called "Incorporation Doctrine", it's BS as well. The "Incorporation doctrine" is nothing more than legal quackery perpetrated by corrupt courts so they could rationalize the violation of both the US Constitution and their Oaths to uphold it as the "supreme law of the land."
The original text of the US Constitution contained language "incorporating" it entirely against the states. Simply read Article IV, Sections 1 and 2 and Section VI. You know phrases like, "The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." And, "This Constitution,..., shall be the supreme law of the Land and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding." And, "... all executive and judicial Officers, both of the United States and of the several States shall be bound by Oath or Affirmation, to support this Constitution ...."
Plus, all the States were required to "ratify" the US Constitution. Why be required to ratify something if you're NOT being required to comply with it?
If SCOTUS rules against incorporation of the 2nd Amendment, it will have to go against all the other incorporation cases it has decided the last century or so. And, it will be prima facie evidence of Judicial Activism on the nation's highest court.
And the Justice system has the power to punish citizens for "contempt of court"? My question is, "Just how the hell can any patriotic American have anything but contempt for our courts these days."
It's all a legal crock of crap! We need to cleanup the so-called Justice system while we're at it.
Posted: Monday, October 26, 2009
Article comment by:
Frank Amato
Who regulates the militia? Government? If so, what prevents the government from not allowing a militia. Makes the Militia thing moot doesn't it. Read George Washington's Farewell Address about Parties. Then you'll get the idea about Militias.
Posted: Sunday, October 25, 2009
Article comment by:
Ben Miner
Even if you are correct that the purpose of the second amendment is to maintain a militia, the effect is to guarantee the right of the PEOPLE to keep and bear arms. In the Heller decision the Supreme unanimously held that it's an individual right.
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