The Supreme Court and our unalienable rights
By Rick Protz
It’s a real shame, as the L.A. Times laments (“The Right to Bear Arms,” Napa Valley Register guest editorial, June 28) that the recent gun-control decision “needlessly complicates the lives of legislators seeking to bring gun violence under control.”
Yet it’s difficult to understand how a decision so badly needed could at the same time be a “needless complication.” But so it seems to the Times (and, presumably, to the Register).
When the real rights of the people have, after long violation, been restored, it’s a little unseemly to be crying in our beer instead of rejoicing. Our founding fathers bequeathed us a system in which it is possible to right a wrong peacefully, which has just happened. Rejoice! It wasn’t so easy in their generation. They suffered patiently for years under numerous injustices before taking the necessary step of declaring independence, which for those who haven’t read it lately, is thoroughly explained in the Declaration of Independence. It meant death for many. Concerning which John Quincy Adams said (to us), “Posterity — you will never know how much it has cost my generation to preserve your freedom. I hope you will make good use of it.”
The editorial states that the Supreme Court chose between “two historically plausible arguments about… the Second Amendment.” Not exactly. The choice was between one historically plausible argument and one untenable argument, and thankfully the Court made the right choice. And unfortunately, it’s obvious today that there is absolutely no guarantee the Court will make a right decision about anything.
To discern between the plausible argument (“the Second Amendment conferred an individual right to keep and bear arms”) and the untenable one (“the amendment’s reference to a ‘well-regulated militia’ limits the right to keep and bear arms to organized military units”), one needs only a basic knowledge of history. At the time of both the Declaration and the Constitution (13 years later), American households were universally armed. To think that the revered Bill of Rights actually announced to Americans, who had recently concluded a bloody and sacrificial war for their freedom, “You no longer have the right to bear arms,” is historically ludicrous. Such an amendment would never have passed. That is a baseless interpretation no matter how many Supreme Court justices hold it. We need to know enough to recognize when the Court is wrong, because the Court’s decisions are not the supreme law, the Constitution is. Sadly, the courts are often wrong. Fortunately, wrong decisions can be changed.
We might keep in mind that the purpose of the Revolutionary War was to deliver us from tyrannical, oppressive government which had no qualms about ignoring our natural rights. It was an act of self-defense. How odd then if they had quickly turned around and denied the right to bear arms in self-defense.
Also, we need to understand that the Declaration is the context of the Constitution. The Constitution did not start from scratch. It simply gave form to the Union of Free and Independent States, which the Declaration calls the United States of America. The Declaration is the charter, the Constitution merely the bylaws. Thus, the Bill of Rights does not create any rights. It simply recognizes and expresses some of the unalienable rights mentioned in the Declaration. All men have the same unalienable rights because they are an endowment from our Creator, but few governments recognize this fact. You can violate rights but you can’t remove them. They existed before government, but “to secure these rights, governments are instituted among men.” Respecting unalienable rights is the essence of America.
Self-defense is a natural, unalienable right. We have it by virtue of being made by God, thus no one can say to another, “You don’t have the right to defend yourself,” not even a U.S. Supreme Court justice. That our courts have said so is a travesty, but it doesn’t change the fact.
Actually, Justice Scalia misstated this point when he said, “The Second Amendment conferred an individual right to keep and bear arms.” Rather, the amendment expressed this right. It requires that the government not infringe the (already existing) right to bear arms.
To confer means “to bestow upon as a gift, favor or honor.” What is conferred can be revoked. But what has not been conferred cannot be revoked. The purpose of the Bill of Rights was to make explicit certain rights because some were concerned a federal government might deny them. But the forgotten Ninth Amendment plainly states that we have rights not even mentioned in the Bill of Rights. That’s fine because the Bill of Rights is not the source of our rights as human beings or as American citizens. God is.
(Protz lives in Napa.)
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Raven wrote on Jul 24, 2008 12:47 AM:
First, despite what we may like to believe, there was no universal arming of the populace, every household did not have that flintlock over the hearth....one of Washington's complaints was how ill-equipped his militia's were, some reporting without any arms at all.
And other than declaring the principles behind our call for independence, the Declaration bestows upon no legal rights at all, none that can be called upon in a court of law. The Constitution does that. It is the legal basis for all the rights we enjoy, the ones reinforced by the decisions of the Supreme Court.
While it may be correct to say the court's decision's are not the supreme law of the land, the Constitution is; the court's decisions are the basis for how that Constitution is interpreted and how far and under what circumstances those rights may be limited.
The connecting of a well-regulated militia and keeping arms was based several realities of the time, the fear of a standing army and what it could do and the cost of maintaining a standing army, by relying upon a militia, but could be kept under check. Eventually the realities of an evolving nation led to establishing that standing army, but a complete move away from a reliance upon militia was not made well into the 20th century, as the realities of a technological age came to bear.
The Declaration sets out the rights our creator may have endowed us with, but the rights enumerated by the Constitution were endowed by a more earthly group, as set forth in the preamble, "We the people," calling upon their fears, their wisdom and their hopes for the future of a fledgling nation. "
nightwatchman wrote on Jul 24, 2008 9:24 AM:
steph wrote on Jul 24, 2008 10:12 AM:
freeport56 wrote on Jul 24, 2008 10:34 AM:
The answer to NW's question is yes. Remeber these were god fearing men. Each of the 13 states was founded and based on the ability to practice their chosen religion freely. It is not until Roger Williams founded Rhode Island to allow various religions to practice in one area. remember our founder were persecuted in Britain fro their religoous beliefs (Puritans-first Pilgrams).
"Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom? Congress shall have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American ... The unlimited power of the sword is not in the hands of either the federal or state governments, but where I trust in God it will ever remain, in the hands of the People."
— Tench Coxe, 1788.
Their belief was that the right of self defense came about as part of natural law ("All of the natural rights philosophers—such as Blackstone, Montesquieu, Hobbes, and Locke—who provided the intellectual foundation of the American Revolution saw self-defense as “the primary law of nature,” from which many other legal principles could be deduced.
John Locke argued that a man’s life belonged to God").
So yes, they believed god wanted us to defend ourselves. "
Raven wrote on Jul 24, 2008 12:02 PM:
JimClark wrote on Jul 24, 2008 1:04 PM:
a teacher wrote on Jul 24, 2008 5:19 PM:
A fair question is:"How far can a city (or town) go to protect it's citizens from a well armed, lawless element?"
and
"What should the response to the fact that guns cause somewhere in the neighborhood of 45,000 deaths (half to murders, half to suicide)?" "
JimClark wrote on Jul 24, 2008 5:21 PM:
Our entire Constitution has been assaulted by arrogant intervention without public debate. No "judge" has the constitution authority to dictate anything that has not been argued before any court in our country. It is clear that even judges can violate the trust of The People by taking upon themselvse a decision making process that has no value until and when it becomes an issue that seeme insurmountale at a lower judicial level.
Our Congress as well as our Supreme Court commits treason by violating the trust of The People.
To alter or abolish did not necessarily appear in our Declaration of Independence to indict England as much as it warned us all that arrogance and tyranny can germanate anywhere and at anytime when an ignorant people do not understand their history; American history. Maybe that is why you have precious little understanding of the history of The United States of America.
Turn off you televisions and start to read. You have allowed the law to force you to install a new kind of television whether you like it or not. I rest my case mein friends. "
Ruff Limblog wrote on Jul 24, 2008 7:08 PM:
kevin wrote on Jul 24, 2008 9:33 PM:
Obviously the new restrictions you are promoting have already been implemented... "
Raven wrote on Jul 24, 2008 10:18 PM:
Raven wrote on Jul 24, 2008 10:21 PM:
John Richards wrote on Jul 25, 2008 1:17 PM:
cab e-girl wrote on Jul 25, 2008 1:27 PM:
In there are around 40K deaths by automobiles, should we also take cars away? "
freeport56 wrote on Jul 25, 2008 3:22 PM:
just a week ago the number you cited for gun deaths was 35,000. half to suicides, the rest split up from criminals killing criminals, cops killing criminals, and psychos killing people.
What is the real number? This is why I like the FBI stats better.
"As to the left wanting to take our guns away"
subversive legislation like micro stamping bullets, a technology that does not work, limiting ammunition sales, and restricting firearms sales (not just assault weapons). look at D.C., as the citizens are starting to register their weapons as require by law they are being told that they must be locked or dismantled. D.C. is ignoring the courst decision and still trying to prevent it's citizens from protecting themselves. Next to Detroit they have the highest murder rate in the country. "
freeport56 wrote on Jul 25, 2008 3:27 PM:
when you purchase a firearm in California you fill out a "DROS" form that is filed with the DOJ for the background check. Then there is a waiting period, Federally imposed 5-day and thew California 5-day wait, a total of 10 days for the background check.
Ruff-
no one as far as I know is in favor of giving nut jobs and\or non-citizens guns. I believe you cannot buy a gun if you are not a citizen. "
kevin wrote on Jul 25, 2008 6:19 PM:
Raven wrote on Jul 25, 2008 7:43 PM:
a reocurring licensing program, including periodic background would do that, or go a long way towards doing that.
and just how is microstamping subversive? "
freeport56 wrote on Jul 25, 2008 11:21 PM:
Once you are arrested it will show up in your background check and the gun will be confiscated.
It is subversive because the technology does not work. After 3 rounds are fired the stamp is no longer readable. In addition, anyone could go to a range and pick up spent casings and leave them at a crime scene. We went through this last year before Arnold Davis sign the faulty bill into law. Law enforcement across the nation is against this type of identification because they know it is faulty. Plus it does not just effect the criminal. That is where you gear the law too, to fight crime. Give them 20 years for using a gun in the commission of a crime. Don't paint the scenery with a broad stroke, focus in on the criminal. Either that or make California a shall carry state and watch crime drop. the leftest view of over control by the government will not stop the criminals, but punish law abiding citizens.
Maybe Baracks Civilian National Security Brown Shirts can monitor us gun owners. Remember, Gun Control means hitting your target. "
a teacher wrote on Jul 26, 2008 7:32 PM:
Cab e-girl: You bring up a good point. Cars kill a similar number of people a year. Let's look at that.
In the mid eighties, there was a concern about the rising number of deaths caused by drunken drivers, particularly people under the age of 21. As a result, the drinking age throughout the country was raised to 21.
There was a concern about the number of deaths caused when drivers and passengers failed to wear their seat belts. As a result seat belt laws are nearly universal.
Pick an issue involving auto safety and the country responds with a law to make driving safer. Not everyone agrees, but they are not exactly controversial either.
If I went to Jimmie Vasser and plopped don $17,000 for a car, I wouldn't be able to just drive it off the lot. I would have to show a driver's license. In order to get that license I would have to be over 16 and have taken a test to prove I was capable of safely operating a motor vehicle.
None of this is true about fire arms. If I went to a gun show I could walk out with a weapon. No one would know if I could shoot it safely or what I might do with it. An automobile has a benign use, not true with fire arms, they are designed to ki.
To me it's a big contradiction that we work so hard to ensure automobile safety and do virtually nothing for fire arms.
It's one thing to have rights, but what about responsibilities? "
Libertarian wrote on Jul 27, 2008 7:29 PM:
If you check you will find just about every case the Supreme Court accepts has been through the lower courts and come to them on appeal. Regardless how you feel about the Warren court it still took the actions it did to defend liberty and insure each individual was accorded his or her Constitutional rights, even yours.
As far as the Warren court at first it upset me to have to read an individual his or her rights when placing them under arrest. After a little thought, I decided even though I could recite those rights I would want to be reminded of them if I was the person being arrested.
Incidentally the Supreme Court is charged with interpreting the Constitution and insuring that neither the people nor the government pass any law or take any action in violation that document. The only act of judicial activism I have seen in the last 20 years was the Supreme Court appointing George W. Bush President and I am a registered Republican.
You talk about the Congress and the Supreme Court committing treason by violating the trust of the people. I think you must be thinking of this President and his administration. "
freeport56 wrote on Jul 27, 2008 7:49 PM:
Your statement about firearms is very inaccurate. You file a request to purchase weithg the State DOJ & Federal DOJ known a as a "DROS". After the 10 day waiting period, you have 24 hours to pick up your purchase. if you fail to pick it up, the process repeats itself. This is the criminal background check.
A drivers license, in California, a CA drivers license is required. There is also the require gunlock (must be accompanied with a current sales receipt). I do not remember if a criminal background check is require for a license.
Just so your twisted commentary does not go unnoticed. Law abiding citizens learn to use SAFELY all firearms in their possession. As I stated in another blog, safety is the first 10 pages of the owners manual. Just like vehicles, it takes an individual to operate it. Otherwise it is just a hunk of metal. Criminals are not responsible. The majorityy of citizens are. "
a teacher wrote on Jul 27, 2008 9:09 PM:
My point, and it's not twisted, is that there are far more restrictions on operating a vehicle than there are on aquiring fire arms. "
Madison Jay Hamilton wrote on Jul 29, 2008 8:59 AM:
kevin wrote on Aug 3, 2008 2:08 PM:
I never have had to.
Besides, I don't remember seeing ANYTHING in the Constitution about owning cars being a Right... "
a teacher wrote on Aug 4, 2008 5:39 PM:
" Why is it that Libs NEVER understand the connection between rights and repercussions. "
You wrote this in another section. I thought I should remind you that it is not only liberals. The repercussions of our obsession with the 2nd amendment is the deaths of 35 to 40 thousand Americans annually. Rights and repercussions, you have to make the connection also. "
freeport56 wrote on Aug 4, 2008 5:48 PM:
there is a federal mandatory 5 day waiting period. That is why california's is 10 days and no longer five. "
a teacher wrote on Aug 4, 2008 7:53 PM:
freeport56 wrote on Aug 5, 2008 1:07 PM:
Yes they do. What part of FEDERAL 5 DAY WAITING PERIOD is unclear. "
Raven wrote on Aug 5, 2008 11:35 PM:
love to see a citation of what part of US code the 5-day wait is under... "
a teacher wrote on Aug 6, 2008 8:58 AM:
California has a 10 day wait for firearms. I keep on meaning to go down town and ask the guys at the Gun Exchange if that applies to shotguns, but I have other things to do. "
Rick wrote on Aug 6, 2008 8:15 PM:
Madison Jay Hamilton wrote on Aug 7, 2008 9:37 AM:
Rick wrote on Aug 9, 2008 6:34 AM: