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Wednesday, June 19, 2013

Please be sure all your friends in every State see these names. The vote and the bill is a matter of public record

Over the weekend, we came four votes away from the United States Senate giving our Constitutional rights over to the United Nations. In a 53-46 vote, the senate narrowly passed a measure that will stop the United States from entering into the United Nations Arms Trade Treaty.
The Statement of Purpose from the bill read:
To uphold Second Amendment rights and prevent the United States from entering into the United Nations Arms Trade Treaty.
The U.N. Small Arms Treaty, which has been championed by the Obama Administration, would have effectively placed a global ban on the import and export of small firearms. The ban would have affected all private gun owners in the U.S. , and had language that would have implemented an international gun registry on all private guns and ammo.
Astonishingly, 46 of our United States Senators were willing to give away our Constitutional rights to a foreign power.
Here are the 46 senators who voted to give your rights to the U.N.
Baldwin (D-WI)
Baucus (D-MT)
Bennet (D-CO)
Blumenthal (D-CT)
Boxer (D-CA)
.* Brown (D-OH)
Cantwell (D-WA)
Cardin (D-MD)
Carper (D-DE)
Casey (D-PA)
Coons (D-DE)
Cowan (D-MA)
Durbin (D-IL)
Feinstein (D-CA)
* Franken (D-MN)
Gillibrand (D-NY)
Harkin (D-IA)
Hirono (D-HI)
Johnson (D-SD)
Kaine (D-VA)
King (I-ME)
Klobuchar (D-MN)
Landrieu (D-LA)
Leahy (D-VT)
Levin (D-MI)
McCaskill (D-MO)
Menendez (D-NJ)
Merkley (D-OR)
Mikulski (D-MD)
Murphy (D-CT)
Murray (D-WA)
Nelson (D-FL)
Reed (D-RI)
Reid (D-NV)
Rockefeller (D-WV)
Sanders (I-VT)
Schatz (D-HI)
Schumer (D-NY)
Shaheen (D-NH)
Stabenow (D-MI)
Udall (D-CO)
Udall (D-NM)
Warner (D-VA)
Warren (D-MA)
Whitehouse (D-RI)
Wyden (D-OR)
Hello All, here is the list, note that none were Republicans
Thank God there was none listed for OK, AR, TX, WY, KS
People, this needs to go viral. These Senators voted to let the UN take our guns. They need to lose the election. We have been betrayed.
46 Senators Voted to Give your 2nd Amendment Constitutional Rights to the U.N.


God Bless America And those that protect her

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Thank God !! I live and will die to protect the 2nd!

Proponents of federal gun control have seized upon the most recent shooting to advance their agenda, predictably trotting out the same worn narratives.

Chief among these we find the argument that the Second Amendment was only intended to protect a “corporate” right of the “people” to keep and bear arms, and that it was meant to apply only to militia service.

I’ve covered the relationship between the Second Amendment and the militia in my Constitution 101 series, explaining the militia was not an exclusive body of people, and it certainly wasn’t the National Guard, which was not established until 1903. As George Mason explained it, the people were essentially the militia.


I ask, Who are the militia? They consist now of the whole people, except a few public officers.”

But for the sake of argument, let’s accept a narrow interpretation of the Second Amendment. Let’s assume it only relates to service in the militia.

The federal government still has no authority to regulate firearms.

As I explained in my Constitution 101 article on the Second Amendment, the Constitution only delegates specific powers to the federal government. The enumeration of certain powers logically excludes all powers not listed. Designato unius est exclusio alterius is a legal maxim meaning, “the designation of one is the exclusion of the other.” You will find no authority to regulate firearms or ban certain types of weapons in the Constitution. The supporters of the Constitution consistently argued that the federal government would not possess the authority to exercise any power not explicitly given.

As a condition of ratification many states insisted on a Bill of Rights, including amendments to make this rule of construction explicit. The result was the Ninth and Tenth Amendments.

So, even if the Second Amendment was never ratified, or if we accept the very narrow application preferred by progressives, the federal government still cannot infringe on the individual right to self-defense.

The Ninth Amendment was ratified to ensure that listing certain rights in the Bill of Rights would not be construed as all-inclusive.


The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Madison’s proposal for what became the Ninth Amendment makes clear the intent was to amplify the limits of federal power – specifically to ensure the enumeration of certain rights was not taken to imply the federal government could violate rights that were not mentioned.


The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but rather as actual limitations of such powers, or as inserted merely for greater caution.”

In other words, even if we accept the erroneous notion that the Second Amendment only protects a “collective” right to keep and bear arms, that doesn’t mean that the federal government can infringe on an individual right to keep and bear arms. That right would then fall under the category of “other rights retained by the people.”

The individual right to self-defense was well-established when the Constitution was ratified. St. George Tucker wrote the first systematic commentary on the U.S. Constitution shortly after ratification. He called the right of self-defense the “palladium of liberty.”


The right of self defense is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible.”

In reality, the Second Amendment was intended to check this tendency of government to infringe on the right to self-defense.

The American founding generation drew much of its legal theory from Blackstone. In his paper, The History of the Second Amendment, legal scholar David Vandercoy traced the right to keep and bear arms back to Blackstone and English common law.


Blackstone described the right to keep arms as absolute or belonging to the individual, but ascribed both public and private purposes to the right. The public purpose was resistance to restrain the violence of oppression; the private was self-preservation.  Blackstone described this right as necessary to secure the actual enjoyment of other rights which would otherwise be in vain if protected only by the dead letter of the laws.”

In Blackstone 1:139, he described a “natural right of resistance and self preservation.”


The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” [Emphasis added]

Some will read Blackstone’s words and say, “See! ‘Such as are allowed by law,’ and ‘due restrictions.’ They never intended an unlimited right to have any kind of gun you want to.”

That brings us to the Tenth Amendment. It works together with the Ninth Amendment to explicitly define the limits of federal power.


The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Because the Constitution does not delegate gun control to the federal government, and because the Ninth Amendment makes it clear that the federal government cannot infringe on individual liberties – even those not listed in the Bill of Rights – any regulation or laws regarding guns remains the province of state governments, as dictated and limited by their constitutions.

Simply put, no matter how you care to interpret the Second Amendment, based on a constitutional reading guided by Amendment IX and X, the federal government possesses zero authority to enforce any type of gun laws, or infringe on the right to self-defense in any way whatsoever.

Two weeks ago, we looked at the Second Amendment and determined that it prohibited any federal infringement on the right to keep and bear arms, and that the prohibition even includes restrictions imposed while exercising legitimate federal power.

This week we will look at the connection between the militia and the Second Amendment. concordminutemen

“A well regulated Militia, being necessary to the security of a free State…”

Many modern legal scholars and political pundits claim that the opening clause of the Second Amendment limits the right to keep and bear arms to those serving in the militia – or the National Guard as we call it today. But rules of construction don’t support this reading. The opening clause serves as a sort of introduction, telling us the “why” behind the “what.” It provides context for the amendment, but it does not define its scope. The second clause of the amendment defines whom the protection from infringement applies to – “the right of the people…”

All of them, not just a select few.

The right to keep and bear arms flows from an even deeper philosophical spring – the natural right of self-defense. In his paper, The History of the Second Amendment, legal scholar David Vandercoy traced the right back to Blackstone and English common law.


Blackstone described the right to keep arms as absolute or belonging to the individual, but ascribed both public and private purposes to the right. The public purpose was resistance to restrain the violence of oppression; the private was self-preservation.  Blackstone described this right as necessary to secure the actual enjoyment of other rights which would otherwise be in vain if protected only by the dead letter of the laws.

That said, the existence, preservation and autonomy of the militia was intimately tied to the Second Amendment, and was the driving force behind its inclusion in the Bill of Rights. It was not only intended to preserve an individual right to keep and bear arms, but also to limit government power. It was understood that an armed populace would serve as a check against government encroachments on liberty.

Those who try to make this case today often get labeled as dangerous, paranoid extremists. But what we call an “extreme” position today was conventional wisdom in the founding era.

Consider the words of Noah Webster in An Examination into the Leading Principles of the Federal Constitution.



The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.

During the ratification era, many feared the federal government would gain control of the state militias, and eventually disband them and replace them with a standing army. The viewed this as a direct threat to liberty itself. During the Virginia ratifying convention, George Mason made an impassioned plea to ensure preservation of the militia, as recorded in the notes of the debates.


Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, (Sir William Keith) who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia. [Here Mr. Mason quoted sundry passages to this effect.] Why should we not provide against the danger of having our militia, our real and natural strength, destroyed? The general government ought, at the same time, to have some such power. But we need not give them power to abolish our militia.

This raises an interesting question: what exactly was the militia in the founding era? Was it a select group of people?

In fact, the militia was made up of all able-bodied men, generally between the ages of about 14 and 65. Mason referred to it as “the whole people” as he lobbied for what was to become the Second Amendment.


Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c., by our representation?  I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor…

Rob Natelson sums up the scope of the Second Amendment in The Original Constitution: What it Actually Said and Meant.


The Second Amendment served purposes besides buttressing the natural right of self-defense and the reserved power of armed resistance. By guaranteeing continuation of the state militias, it strengthened state power in the state-federal balance – even though state militias could be called into federal service. By protecting the militia, the amendment promoted citizen involvement in government military affairs, just as the jury system promoted citizen involvement in judicial affairs. Likewise, by protecting the militia, the Second Amendment reduced the need for federal standing armies.
St. George Tucker wrote the first systematic commentary on the U.S. Constitution and stood as one of the preeminent constitutional scholars through the 18th century. Tucker called the right of self-defense the “palladium of liberty.”guns


The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible.

The Second Amendment was drafted and ratified to prevent the federal government doing just that.

As we have discussed over the last couple of weeks, the Bill of Rights was amended to the Constitution “in order to prevent misconstruction or abuse of its [the government created by the constitution’s] powers.”

Even among the strongest supporters of “gun rights,” Americans today hold the view that the Second Amendment allows for “reasonable” federal regulation of firearms. But as originally understood, the amendment includes no such exceptions.

Constitutionally speaking, federal government should not regulate the manufacture or private ownership of firearms.

At all.

Keep in mind, even without the Second Amendment, the federal government would have very little authority to craft firearms regulations. It may only exercise delegated powers, with all others reserved to the states and the people. We find the only power delegated to Congress relating to weaponry in Art. I Sec. 8 – “arming…the Militia.” The Constitution nowhere authorizes any general federal firearms regulating power.


Even so, under the original Constitution the federal government could conceivably regulate firearms in the process of exercising another legitimate power – particularly regulating interstate commerce. The Second Amendment slams that door closed.


…the right of the people to keep and bear Arms, shall not be infringed.

Infringe – v: Act so as to limit or undermine (something); encroach on.

Simply put, federal government may not constitutionally act in any way that limits the right to keep and bear arms.

So, while under the original Constitution, you could argue that the commerce clause empowers the feds to restrict and regulate the sale of guns, ammunition and gun related accessories across state lines, the Second Amendment supersedes the commerce clause whenever a given regulation encroaches or limits the right to keep and bear arms.

Note who the Second Amendment applies to: the people. All of them. Not just the National Guard or some select few.
Federal Cases Regarding the 2nd Amendment  

TABLE OF CONTENTS  



U.S. Supreme Court Cases
1."In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibitions against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."


"Held:
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

Get the full 157 text as a PDF file here: Washington D.C. v. Heller

2.McDonald vs. City of Chicago - The individual right to keep and bear arms APPLIES TO ALL STATES in the union! 06/28/2010
3. United States v. Cruikshank  
4.Presser v. Illinois  
5.Miller v. Texas  
6.U.S. v. Miller  
7.Lewis v. United States  
8.United States v. Verdugo-Urquirdez

Federal Cases Regarding the Second Amendment


https://firearmsandliberty.com/fedcases.2nd.html 

Federal Cases Regarding the 2nd Amendment TABLE OF CONTENTS. U.S. Supreme Court Cases "In sum, we hold that the District's ban on handgun possession in ...
U.S. Supreme Court Cases

United States v. Cruikshank, 92 U.S. 542 (1876). This was the first case in which the Supreme Court had the opportunity to interpret the Second Amendment. The Court recognized that the right of the people to keep and bear arms was a right which existed prior to the Constitution when it stated that such a right "is not a right granted by the Constitution . . . [n]either is it in any manner dependent upon that instrument for its existence." The indictment in Cruikshank charged, inter alia, a conspiracy by Klansmen to prevent blacks from exercising their civil rights, including the bearing of arms for lawful purposes. The Court held, however, that because the right to keep and bear arms existed independent of the Constitution, and the Second Amendment guaranteed only that the right shall not be infringed by Congress, the federal government had no power to punish a violation of the right by a private individual; rather, citizens had "to look for their protection against any violation by their fellow-citizens" of their right to keep and bear arms to the police power of the state.  

Presser v. Illinois, 116 U.S. 252 (1886). Although the Supreme Court affirmed the holding in Cruikshank that the Second Amendment, standing alone, applied only to action by the federal government, it nonetheless found the states without power to infringe upon the right to keep and bear arms, holding that "the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, as so 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."  

Presser, moreover, plainly suggested that the Second Amendment applies to the states through the Fourteenth Amendment and thus that a state cannot forbid individuals to keep and bear arms. To understand why, it is necessary to understand the statutory scheme the Court had before it.  

The statute under which Presser was convicted did not forbid individuals to keep and bear arms but rather forbade "bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law . . . ." Thus, the Court concluded that the statute did not infringe the right to keep and bear arms.  

The Court, however, went on to discuss the Privileges and Immunities Clause of the Fourteenth Amendment, noting that "[i]t is only the privileges and immunities of citizens of the United States that the clause relied on was intended to protect." As the Court had already held that the substantive right to keep and bear arms was not infringed by the Illinois statute since that statue did not prohibit the keeping and bearing of arms but rather prohibited military-like exercises by armed men, the Court concluded that it did not need address the question of whether the state law violated the Second Amendment as applied to the states by the Fourteenth Amendment.  

Miller v. Texas, 153 U.S. 535 (1894). In this case, the Court confirmed that it had never addressed the issue of the Second Amendment applying to the states through the Fourteenth Amendment. This case remains the last word on this subject by the Court.  

Miller challenged a Texas statute on the bearing of pistols as violative of the Second, Fourth, and Fourteenth Amendments. But he asserted these arguments for the first time after his conviction had been affirmed by a state appellate court. Reiterating Cruikshank and Presser, the Supreme Court first found that the Second and Fourth Amendments, of themselves, did not limit state action. The Court then turned to the claim that the Texas statute violated the rights to bear arms and against warrantless searches as incorporated in the Fourteenth Amendment. But because the Court would not hear objections not made in a timely fashion, the Court refused to consider Miller's contentions. Thus, rather than reject incorporation of the Second and Fourth Amendments in the Fourteenth, the Supreme Court merely refused to decide the defendant's claim because its powers of adjudication were limited to the review of errors timely assigned in the trial court. The Court left open the possibility that the right to keep and bear arms and freedom from warrantless searches would apply to the states through the Fourteenth Amendment.  

U.S. v. Miller, 307 U.S. 174 (1939). This is the only case in which the Supreme Court has had the opportunity to apply the Second Amendment to a federal firearms statute. The Court, however, carefully avoided making an unconditional decision regarding the statute's constitutionality; it instead devised a test by which to measure the constitutionality of statutes relating to firearms and remanded the case to the trial court for an evidentiary hearing (the trial court had held that Section 11 of the National Firearms Act was unconstitutional). The Court remanded to the case because it had concluded that:  


In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen 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.  
Thus, for the keeping and bearing of a firearm to be constitutionally protected, the firearm should be a militia-type arm.  

The case also made clear that the militia consisted of "all males physically capable of acting in concert for the common defense" and that "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." In setting forth this definition of the militia, the Court implicitly rejected the view that the Second Amendment guarantees a right only to those individuals who are members of the militia. Had the Court viewed the Second Amendment as guaranteeing the right to keep and bear arms only to "all males physically capable of acting in concert for the common defense," it would certainly have discussed whether, on remand, there should also be evidence that the defendants met the qualifications for inclusion in the militia, much as it did with regard to the militia use of a short-barrelled shotgun.  

Lewis v. United States, 445 U.S. 95 (1980). Lewis recognized -- in summarizing the holding of Miller, supra, as "the Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well-regulated militia'" (emphasis added) -- that Miller had focused upon the type of firearm. Further, Lewis was concerned only with whether the provision of the Omnibus Crime Control and Safe Streets Act of 1968 which prohibits the possession of firearms by convicted felons (codified in 18 U.S.C. 922(g) in 1986) violated the Second Amendment. Thus, since convicted felons historically were and are subject to the loss of numerous fundamental rights of citizenship -- including the right to vote, hold office, and serve on juries -- it was not erroneous for the Court to have concluded that laws prohibiting the possession of firearms by a convicted felon "are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties."  

United States v. Verdugo-Urquirdez, 110 S. Ct. 3039 (1990). This case involved the meaning of the term "the people" in the Fourth Amendment. The Court unanimously held that the term "the people" in the Second Amendment had the same meaning as in the Preamble to the Constitution and in the First, Fourth, and Ninth Amendments, i.e., that "the people" means at least all citizens and legal aliens while in the United States. This case thus resolves any doubt that the Second Amendment guarantees an individual right.  



U.S. Courts of Appeals Cases

U.S. v. Nelson, 859 F.2d 1318 (8th Cir. 1988). This case is not a firearms case; it involves the federal switchblade knife act. Based on the holding in U.S. v Cruikshank, 92 U.S. 542, 553 (1876), that the right to keep and bear arms "is not a right granted by the Constitution," the Eighth Circuit concluded that the right is not fundamental. Of course, the statement in Cruikshank -- a case which involved the theft of firearms by private citizens from other private citizens -- simply meant that the right was not created by the Constitution, but that it preexisted the Constitution and that the Second Amendment was "to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes" to the state criminal laws. Moreover, the Eighth Circuit's one paragraph opinion cited Miller, Oakes, infra, and Warin, infra, without any explanation, in holding that the Second Amendment has been analyzed "purely in term of protecting state militias, rather than individual rights." While this statement is true, it certainly does not mean that Miller rejected the conclusion that an individual right was protected. Thus, the Eighth Circuit did not err in concluding that it was important that "Nelson has made no arguments that the Act would impair any state militia . . . ."  

U.S. v. Cody, 460 F.2d 34 (8th Cir. 1972). This case involved the making of a false statement by a convicted felon in connection with the purchase of a firearm. After citing Miller for the propositions that "the Second Amendment is not an absolute bar to congressional regulation of the use or possession of firearms" and that the "Second Amendment's guarantee extends only to use or possession which 'has some reasonable relationship to the preservation or efficiency of a well-regulated militia,'" the court held that there was "no evidence that the prohibition of 922(a)(6) obstructs the maintenance of a well-regulated militia." Thus, the court acknowledged that the Second Amendment would be a bar to some congressional regulation of the use or possession of firearms and recognized that Miller required the introduction of evidence which showed a militia use for the firearm involved.  

U.S. v. Decker, 446 F.2d 164 (8th Cir. 1971). Like Synnes, infra, the court here held that the defendant could "present ... evidence indicating a conflict" between the statute at issue and the Second Amendment. Since he failed to do so, the court declined to hold that the record-keeping requirements of the Gun Control Act of 1968 violated the Second Amendment. As with Synnes, the court once again implicitly recognized that the right guaranteed belonged to individuals.



U.S. v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009 (1972). This is another case involving possession of a firearm by a convicted felon. In holding that 18 U.S.C. App. Section 1202(a) (reenacted in 18 U.S.C. 922(g) in 1986) did not infringe the Second Amendment, the court held (based upon its partially erroneous view of Miller) that there needed to be evidence that the statute impaired the maintenance of a well- regulated militia. As there was "no showing that prohibiting possession of firearms by felons obstructs the maintenance of a 'well regulated militia,'" the court saw "no conflict" between 1202(a) and the Second Amendment. While Miller focused on the need to introduce evidence that the firearm had a militia use, Synnes at least recognized the relevance of a militia nexus. There was a clear recognition, moreover, that the Second Amendment guarantees an individual right.  

Gilbert Equipment Co., Inc. v. Higgins, 709 F. Supp. 1071 (S.D. Ala. 1989), aff'd, 894 F.2d 412 (11th Cir. 1990) (mem). The court held that the Second Amendment "guarantees to all Americans 'the right to keep and bear arms' . . . ."  





U.S. v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978). Although the court recognized the requirement of Miller that the defendant show that the firearm in question have a "connection to the militia," the court concluded, without any explanation of how it reached the conclusion, that the mere fact that the defendant was a member of the Kansas militia would not establish that connection. In light of the fact that Miller (which defines the militia as including "all males physically capable of acting in concert for the common defense") saw no relevance in the status of a defendant with respect to the militia, but instead focused upon the firearm itself, this conclusion is not without basis.  

U.S. v. Swinton, 521 F.2d 1255 (10th Cir. 1975). In the context of interpreting the meaning of the phrase "engaging in the business of dealing in firearms" in 18 U.S.C. 922(a)(1), the court noted, in dicta, merely that "there is no absolute constitutional right of an individual to possess a firearm." Emphasis added. Clearly, therefore, the court recognized that the right is an individual one, albeit not an absolute one.  

U.S. v. Johnson, 497 F.2d 548 (4th Cir. 1974). This is one of the three court of appeals cases which uses the term "collective right." The entire opinion, however, is one sentence, which states that the Second Amendment "only confers a collective right of keeping and bearing arms which must bear a 'reasonable relationship to the preservation or efficiency of a well-regulated militia'." As authority for this statement, the court cites Miller and Cody v. U.S., supra. Yet, as the Supreme Court in Lewis, supra, made clear, Miller held that it is the firearm itself, not the act of keeping and bearing the firearm, which must have a "reasonable relationship to the preservation or efficiency of a well-regulated militia." The court did, however, recognize that Miller required evidence of the militia nexus. Moreover, the particular provision at issue in Johnson concerned the interstate transportation of a firearm by convicted felons, a class of persons which historically has suffered the loss of numerous rights (including exclusion from the militia) accorded other citizens.  



U.S. v Bowdach, 414 F. Supp. 1346 (D.S. Fla 1976), aff'd, 561 F.2d 1160 (5th Cir. 1977). The court held that "possession of the shotgun by a non-felon has no legal consequences. U.S. Const. Amend II."




U.S. v. Johnson, Jr., 441 F.2d 1134 (5th Cir. 1971). Once again, this decision merely quotes from Miller the statement concerning the requirement of an evidentiary showing of a militia nexus and a consequent rejection, without even the briefest of analysis, of the defendant's challenging to the constitutionality of the National Firearms Act of 1934 (NFA). Apparently, the defendant failed to put on evidence, as required by Miller, that the firearm at issue had a militia use. Thus, Miller bound the appeals court to reject the defendant's challenge.  



Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983). In rejecting a Second and Fourteenth Amendment challenge to a village handgun ban, the court held that the Second Amendment, either of itself or by incorporation through the Fourteenth Amendment, "does not apply to the states. . . ." The court, in dicta, went on, however, to "comment" on the "scope of the second amendment," incorrectly summarizing Miller as holding that the right extends "only to those arms which are necessary to maintain a well regulated militia." Thus, finding (without evidence on the record) that "individually owned handguns [are not] military weapons," the court concluded that "the right to keep and bear handguns is not guaranteed by the second amendment."  

U.S. v. McCutcheon, 446 F.2d 133 (7th Cir. 1971). This is another case involving the NFA in which the court merely followed Miller in holding that the NFA did not infringe the Second Amendment.  

  

  

Stevens v. United States, 440 F.2d 144 (6th Cir 1971). In a one sentence holding, the court simply concluded that the Second Amendment "applies only to the right of the State to maintain a militia and not to the individual's right to bear arms ...." Merely citing Miller as authority for this conclusion, the court undertook no analysis of Miller or of the history of the ratification of the Second Amendment. This case, moreover, involved possession of firearms by convicted felons, a class of persons whose right traditionally have been more restricted than law-abiding citizens.  

U.S. v. Day, 476 F.2d 562 (6th Cir. 1973). Citing Miller, the court merely concluded, in reviewing a challenge to the statute barring dishonorably discharged persons from possessing firearms, that "there is no absolute right of an individual to possess a firearm." Emphasis added. Since there are certain narrowly defined classes of untrustworthy persons, such as convicted felons and, as here, persons dishonorably discharged from the armed forces, who may be barred the possession of firearms, it is a truism to say that there is not an absolute right to possess firearms. In so saying, the court implicitly recognized the individual right of peaceful and honest citizens to possess firearm.  

U.S. v. Warin, 530 F.2d 103 (6th Cir 1976), cert. denied, 426 U.S. 948 (1976). Following, and relying upon, its earlier decision in Stevens, supra, the court simply concluded, without any reference to the history of the Second Amendment, that it "is clear the Second Amendment guarantees a collective rather than an individual right." The court also indicated that, in reaching its decision, it was relying upon the First Circuit's decision in Cases, infra. Yet in concluding that not all arms were protected by the Second Amendment, Cases did not hold, as did Warin, that the Second Amendment afforded individuals no protections whatever. Warin also erred in concluding that Warin's relationship to the militia was relevant to determining whether his possession of a machine gun was protected by the Second Amendment since the Supreme Court in Miller focused on the firearm itself, not the individual involved. In fact, Miller quite expansively defined the constitutional militia as encompassing "all males physically capable of action in concert for the common defense."  

U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942), rev'd on other grounds, 319 U.S. 463 (1943). This is another case involving possession of a firearm by a convicted felon. Despite holding that the failure of the defendant to prove, as required by Miller, a militia use for the firearm was an adequate basis for ruling against the defendant, the court, in dicta, concluded that the Second Amendment "was not adopted with individual rights in mind . . . ." This result was based on reliance on an extremely brief -- and erroneous -- analysis of common law and colonial history. In addition, apparently recognizing that it decided the case on unnecessarily broad grounds, the court noted that, at common law, while there was a right to bear arms, that right was not absolute and could be restricted for certain classes of persons "who have previously . . . been shown to be aggressors against society."  

U.S. v. Graves, 554 F.2d 65 (3rd Cir. 1977). Since the defendant in this case did not raise the Second Amendment as a challenge to the "statutory program which restricts the right to bear arms of convicted felons and other persons of dangerous propensities," the only discussion of the Second Amendment is found in a footnote wherein the court states "[a]rguably, any regulation of firearms may be violative of this constitutional provision."  

Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied sub nom., Velazquez v. U. S., 319 U.S. 770 (1943). In this case, the court held that the Supreme Court in Miller had not intended "to formulate a general rule" regarding which arms were protected by the Second Amendment and concluded, therefore, that many types of arms were not protected. Nonetheless, the court in Cases expressly acknowledged that the Second Amendment guarantees an individual right when it noted that the law in question "undoubtedly curtails to some extent the right of individuals to keep and bear arms ...." Id. at 921. Emphasis added. Moreover, the court in Cases concluded, as properly it should have, that Miller should not be read as holding that the Second Amendment guaranteed the right to possess or use large weapons that could not be carried by an individual.  



U.S. District Court Cases

U.S. v. Gross, 313 F.Supp. 1330 (S.D. Ind. 1970), aff'd on other grounds, 451 F.2d 1355 (7th Cir. 1971). In rejecting a challenge to the constitutionality of the requirement that those who engage in the business of dealing in firearms must be licensed, the court, following its view of Miller, held that the defendant had not shown that "the licensing of dealers in firearms in any way destroys, or impairs the efficiency of, a well regulated militia."  

U.S. v. Kraase, 340 F.Supp. 147 (E.D. Wis. 1972). In ruling on a motion to dismiss an indictment, the court rejected a facial constitutional challenge to 18 U.S.C. 922(a)(5) -- which prohibited sales of firearms to residents of other states. Recognizing that an individual right was protected, it held that "second amendment protection might arise if proof were offered at the trial demonstrating that his possession of the weapon in question had a reasonable relationship to the maintenance of a 'well-regulated Militia.'"  

Thompson v. Dereta, 549 F.Supp. 297 (D. Utah 1982). An applicant for relief from disabilities (a prohibited person) brought an action against the federal agents involved in denying his application. The court dismissed the case, holding that, because there was no "absolute constitutional right of an individual to possess a firearm," there was "no liberty or property interest sufficient to give rise to a procedural due process claim."  

Vietnamese Fishermen's Assoc. v. KKK, 543 F.Supp. 198 (S.D. Tex. 1982). Like the statute faced by the Supreme Court in Presser v. Illinois, 116 U.S. 252 (1876), the Texas statute and the injunction at issue here prohibited private military activity. Mischaracterizing Miller, the court held that the Second Amendment "prohibits only such infringement on the bearing of weapons as would interfere with 'the preservation or efficiency of a well- regulated militia,' organized by the State." Later, however, the court, following Miller, explained that the "Second Amendment's guarantee is limited to the right to keep and bear such arms as have 'a reasonable relationship to the preservation or efficiency of a well regulated militia.'" The courts's understanding of the Second Amendment is thus inconsistent and, given the facts of the case, largely dicta.  

U.S. v. Kozerski, 518 F.Supp. 1082 (D.N.H.1981), cert. denied, 469 U.S. 842 (1984). In the context of a challenge to the law prohibiting the possession of firearms by convicted felons, the court, while holding correctly (see discussion of Nelson, supra) that the Second Amendment "is not a grant of a right but a limitation upon the power of Congress and the national government," concluded that the right "is a collective right . . . rather that an individual right," citing only Warin, supra. As a district court in the First Circuit, however, the court was bound by Cases, supra, which expressly recognized that the right belonged to individuals.

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