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Fourth Response to ‘Del. Weldon Says, "I
can tell that Sarah Brady is a good woman"’ Phil
Lee1 Oct
20, 2003 (rev. 12/7/03) [ Op Eds ] The gun control debate is between two sets of people with opposed values - those who have no problems with owning firearms, and those who hate and fear guns (or gun owners). While firearms represent violence to the gun hater group, they represent self-reliance and freedom to the former group. The gun haters shows no moderation in their pursuit of civilian disarmament and this lack of moderation alarms the former group since they see restrictions as attacks on freedom. To law-abiding gun-owners, gun control
represents an unwarranted interference in private life that reduces our
ability to be self-reliant. The pace
of ever more invasive controls on our lives in addition to gun-control,
causes gun owners to developed a deep rooted suspicion that there is more to
gun control than meets the eye.
Especially since gun control measures are not effective in their
stated purposes of safety or reducing crime.
It does not matter whether this uneasy belief is valid or not, it is
dangerous enough that it exists. After all is said and done, the gun
control debate poses the basic question:
Who is more trustworthy, the government or the people? Thomas Paine wrote, that "the good
man," had both right and need for arms; moreover, no law would dissuade
"the invader and the plunderer," from having them. So, "since some will not, others dare
not lay them aside . . . . Horrid
mischief would ensue were" the law-abiding "deprived of the use of
them;... the weak will become a prey to the strong." (Writings of Thomas Paine 56 (M. Conway
ed. 1894)). Paine's understanding of
the "invader and plunderer" was not limited to common thugs, but
included despots who use the power of the government to steal freedom from
the people. The founders were driven by a deep
understanding of tyranny and how it was to be resisted. One fear was of the potential for misuse
of a standing army. So, they
conceived the militia as the people themselves. Even in the 1939 Miller decision, frequently quoted by the
Brady Organization and their allies, the Supreme Court recognized the central
function of the militia by saying: The signification attributed to the term
Militia appears from the debates in the Convention, the history and
legislation of Colonies and States, and the writings of approved
commentators. These show plainly
enough that the Militia comprised all males physically capable of acting in
concert for the common defense.
"A body of citizens enrolled for military discipline." And further, that ordinarily when called
for service these men were expected to appear bearing arms supplied by
themselves and of the kind in common use at the time. -- US Supreme Court, 307 U.S. 174, United
States v. Miller et al. (1939) "In common use at the time" is
a significant observation. The
"common use" firearm of this time is the semi-automatic rifle and
semi-automatic pistol as well as various kinds of shotguns. The militia, as used by the framers, are
the people themselves, but Congress has defined a subgroup of the militia
that is expected to report when called in the United States Code, Title 10,
Section 311(a): The
militia of the United States consists of all able-bodied males at least 17
years of age and, except [for felons], under 45 years of age who are, or who
have made a declaration of intention to become, citizens of the United States
. . . . We cite that definition not to say it is
controlling -- Congress is not free to re-define the militia to contain no
people and thus do away with the right to keep and bear arms. We cite this to show there is a large body
of people who have a responsibility to the state and they must be permitted
to discharge that responsibility. It
is a proper subgroup defined by expected physical ability and to be
responsive to a call from the national or state authorities. The Supreme Court has spoken on many occasions
about the militia and public ownership of arms. In a case dating from the last part of the 19th Century, we
have It
is undoubtedly true that all citizens capable of bearing arms constitute the
reserved militia force or reserve militia of the United States as well as the
States; and, in view of this prerogative of the General Government, as well
as of its general powers, the States cannot, even laying the constitutional
provision in question out of view, prohibit the people from keeping and bearing
arms, so as to deprive the United States of their rightful resource for
maintaining the public security, and disable the people from performing their
duty to the General Government. --
Supreme Court, Presser v. People of
Illinois 116 U.S. 252, 265 (1886) The Constitutional provision mentioned
here is the Second Amendment. This
Court is saying that the power of the state to interfere with the people's
right to keep and bear arms is limited by the fact that the people are the
reserve militia of the national and state governments. Any interference that prevents the people
from discharging that responsibility is contrary to the Constitution. And this conclusion does not depend in any
way on the Second Amendment ("laying the constitutional provision in
question out of view"). But many
of the founders felt the need to make the issue explicit with the Second
Amendment. You should not think the militia is an
outdated concept. As recently as 1942
Maryland Governor Herbert R. O'Conor called
on: [E]very able-bodied man to assist in protecting his home and his community against enemy activities. The militia will be organized under our State Law, and the men who enlist at this time of our grave emergency will be known as the 'Maryland Minute Men'.... [T]he United States Army cannot be expected to furnish sufficient arms . . . . Hence, the volunteers, for the most part, will be expected to furnish their own weapons. For this reason, gunners (of whom there are 60,000 licensed in Maryland), members of Rod and Gun Clubs, of Trap Shooting and similar organizations will be expected to constitute a part of this new military organization. This paragraph was taken from the article
"The Current Relevancy of Keeping and Bearing Arms" by Robert
Dowlut, University of Baltimore School of Law Forum, Vol. 15, No. 1, Fall
1984 and that article cites: State Papers & Addresses of Gov. Herbert R.
O'Conor, at 616-620 (1942) and U.S. Home Defense Forces Study 58, Office of
the Sec. of Defense, Mar. 1981. Dowlut writes: On file with the Law Forum is a discharge certificate from the Md. Minute Men and an affidavit stating that personally owned arms were rifles, shotguns, pistols and hunting knives. Here we have an example of a call to the
unorganized militia to address a military emergency happening as recently as
WWII. This case illustrates how our
nation is organized with the people, the militia, having duties defined in
our Constitution and why the people must be permitted arms. Even the anti-gun Attorney
General of Maryland (Joseph Curran) has stated in a legal opinion that all able-bodied
citizens belong to the militia -- in his words: 'Article 65, §5 provides for the
militia’s organization by dividing it into two classes, the organized militia
and the unorganized militia. The organized
militia consists of the Maryland National Guard (“MDNG”), the MDDF, and the
reserve militia (Minute Men). Subject
to certain exceptions, the
“unorganized” militia consists of “all able-bodied citizens of the
State,” whom the Governor may order into State service if troop strength in
the organized militia is insufficient to deal with a crisis. See Article 65, §§1, 2, and 8." -- Reference link State
authority to regulate the people's right to keep and bear arms is limited by
several sections of the Constitution in addition to the Second
Amendment. In essence, these Constitution sections
establish a role for the people as a reserve military and police force.
That force has a legal status within the Constitutions of the U.S. and
Maryland. Because of the people's responsibility as
the military reserve of the U.S. defined in the Constitution and the rights they have to arms to
discharge that responsibility, Courts and legislators should apply strict
scrutiny in evaluating regulations on the right to keep and bear arms. All Maryland legislators are bound by
oath to support the Constitutions of the U.S. and Maryland. They cannot discharge that oath by passing
laws they know to fail tests of constitutionality. They cannot shift that issue to the Courts without failing in
their duty. Some more details about
legal limits on Maryland may be obtained from the links. It may be that Del. Weldon would like to hear more about the problems of violence and the cures rather than these lectures about history of the right to keep and bear arms and legal limits on government’s ability to restrict the keeping or bearing of arms. In the past years we have made such arguments against gun control in practical terms. Samples of our reasoned arguments can be seen in past years' testimony at: 2001 (and selections from MCDL for 2000 and 2002) But we believe that principled arguments
will appeal to legislators also, or, if not, to their constituents. We base that belief on the positive reception
that pro-RKBA initiatives have experienced in other places. In 1998 a right to bear arms amendment won
a Wisconsin referendum with 74% of the votes, or 1,132,356, to 400,771
against. Those voters were interested
in principle. Maryland voters have shown
they are interested in principle by throwing out of office the Speaker of the
House, a politician with 28 years of experience in elective office, for a
freshman and by the victory of the first Republican Governor in more than 30
years who supported RKBA while his Democrat opposition actively promised more
gun control. The speaker attributed
his defeat to his support for gun control. The Brady bunch will claim voters want
more restrictions on guns, but this is just one more of many lies they tell. 1 Phil Lee has a PhD in Mathematics and is active
in Maryland politics to support the right of the people to keep and bear arms. |