Thursday, November 29, 2007

How to Help Win Heller

Academics for the Second Amendment
Post Office Box 131254
St. Paul, Minn. 55113

Academics for the Second Amendment ("A2A") will be filing an amicus brief in the US Supreme Court in support of Mr. Heller (and urging the Supreme Court to affirm the Court of Appeals decision that the DC gun laws are unconstitutional). Our brief will be written by attorneys David Hardy and Joseph Olson with historical assistance from Clayton Cramer. As one of the several pro-gun amici, we'll be taking an approach that focuses on the ratification process in 1791 and the meaning and usage of terms found in the Second Amendment. We will show that no one in America, at that time, could have understood the amendment to preserve a state or government organization's "right" and that everyone who did speak out did so in the context of a meaningful individual right to keep and bear arms.

District of Columbia v. Heller will decide whether or not the Second Amendment protects any American from gun bans and confiscations.

Preparing and filing the amicus brief will take thousands of additional dollars. A2A will be facing attorney fees, printing expenses, filing fees, travel and lodging expenses, etc. We have some money but not enough.

A2A is a tax-exempt educational organization recognized under IRC §501(c)(3) [that makes your contributions tax-deductible]. Our primary goal is to give the “right to keep and bear arms” enshrined in the Bill of Rights its proper, prominent place in Constitutional discourse and analysis.

A2A was formed in 1992 by a number of present and former law school teachers, joined by historians, political scientists, and philosophers of government, who believe it is time to stand and be counted in support of a complete Bill of Rights which includes an individual right under the Second Amendment. The organization seeks to foster intellectually honest discourse on the Constitution, the Bill of Rights, and, of course, the environment in which academics, judges, politicians, and the public place the rights preserved by the Second Amendment.

A2A has filed friend-of-the-court briefs (A2A was an amicus in the U.S. Supreme Court in Lopez and the U.S. Court of Appeals in Emerson), sponsored academic symposia, encouraged media commentary, supported research and publication, and challenged the legal profession and the public to appreciate the place of the individual right to keep and bear arms in the American constitutional scheme. A major endeavor has been a series of “Open Letter” advertisements signed by groups of University and College professors. The signers cannot be dismissed by the media as “gun nuts” nor can their statements be ignored as without foundation. Their academic records and reputations are too strong for that to occur. The message is simple – the Second Amendment is there, it does preserve a meaningful individual right for responsible persons, and it cannot, without duplicity, be overlooked or interpreted into meaninglessness.

We need your help. If you believe in full and fair discourse on the Bill of Rights, A2A should receive your support. A2A is open to all. You don’t have to be “academic” in order to join. Your contributions are tax deductible. Please don’t ignore this request --- copy this post for a friend, forward it on, and send in your check or use our PayPal account.

Very truly yours,

Joseph Olson
Professor of Law

Note from Dave: A2A now has a PayPal donation button at their site. Yes, PayPal is antigun. However, this lets us use their service to our advantage. If you don't want to use PayPal, please consider a donation via check.


Anonymous said...

Cool, Can I join in?

I hope that you point out how the Second Amendment was supposed to prevent Standing Armies. You are aware that is the issue which the Second Amendment addresses.

No where in the Second Amendment is Self-Defence, over throwing a tyrannical government, or hunting mentioned. You should look to proposed drafts to see how an individual right oriented Second Amendment might look.

Instead, the Second Amendment addresses Articl I, Section 8 giving power to "provide for organizing, arming, and disciplining, the militia." I bolded arming so you would be aware that arming the militia is under the power of the US legislature.

PAtrick Henry said "Let me here call your attention to that part which gives the Congress power "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States—reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress. By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither—this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory. Our situation will be deplorable indeed: nor can we ever expect to get this government amended, since I have already shown that a very small minority may prevent it, and that small minority interested in the continuance of the oppression.
" (Patrick Henry, Against the Federal Constitution, June 5, 1788)

So, it has nothing to do with private arms.

It has everything to do with standing armies.

And I suggest you keep your opinions to yourself unless you are seriously suggesting the military should be abolished in favour of the universal militia.

Dave Markowitz said...

What an ignorant, condescending post. I will leave it up in the interest of exposing the mentality that we face. And at the risk of feeding a troll who doesn't even have the balls to put even a fictitious name to his screed, I'll reply.

The idea that the Second Amendment ("2A") is to only protect against a standing army is about the most ludicrous claim I've ever read in regard to it.

Let's review the text of the 2A, as it was actually adopted:

"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."

While the Framers indeed were fearful of a standing army, relying on the text of drafts which were rejected is foolish. If the Framers felt that the 2A was intended to apply as a means of preventing a standing army, then they would have included that text in the amendment as ratified, not stripped it out. As highly educated men with a mastery of the English language, they would not have deleted references to a standing army if indeed that is what they wanted the 2A to govern.

The operative phrase of the 2A is "shall not be infringed." What shall not be infringed? "[T]he right of the people to keep and bear arms." Who or what are "the people."

"The people" is a term of art used in the Bill of Rights. It has a specific meaning. In every other Amendment in the BoR, there is no question that "the people" refers to individuals. Yet somehow in the context of the 2A, some people read this to have some sort of collective meaning.

However, even if we assume for the sake of argument that the right is only applicable in the context of providing for a militia, then it still refers to an individual right. The best indication of this is the Militia Act of 1792, which is contemporaneous with the Constitution and Bill of Rights, and which reads in part:

"Sec. 1.  Be it enacted . . .  That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia . . . .  That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder. . . ."

In other words, Congress expressly did not provide for militia arms. Rather, Congress required individual members of the militia (i.e., all free white males between 18 and 45 years of age) to provide their own small arms and a basic load of ammunition.

One should also keep in mind that the language in the Constitution as adopted in 1789 does not modify or restrict language in the Bill of Rights as adopted in 1791. Quite the opposite, in fact.

Finally, as to keeping my opinions to myself, your desire to stifle dissent exemplifies the one of the worst qualities of the authoritarians against whom the entire Bill of Rights was designed to protect.