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Sunday, December 19, 2010

"Considerations upon the 2nd Amendment."

Justice Breyer,

I read today the following news article on Fox News' website:

http://www.foxnews.com/politics/2010/12/12/breyer-founding-fathers-allowed-restrictions-guns/

Assuming all information in the article is true, I will proceed with some concerns I have with some of the thinking and quotations attributed to you in this article.

Regulation, sir, is not at all the same as an outright ban. Congress controls DC, this is true, but it's laws and regulations for DC must be within the scope of powers delegated to Congress in the Constitution. This includes the entire Constitution that stands now, sir, which includes the 2nd Amendment. Nor does the 2nd Amendment or Article 1, Section 8 of the constitution allow Congress to regulate guns or firearms in the individual's private home or on the individual's private property, unless he/she is violation of another law or of an individual's natural and civil rights. For example, if the individual, on his/her own private property, and without the use of self defense, was hurting another individual; or if he/she was violating/destroying another's private property or public property or if the individual with the gun was violating another's private property rights. This is the only sort of regulation, I believe, according to the dictates of the Constitution, that Congress is allowed to perform and legislate about.

You claim, sir that the founders, especially Madison, were in favor of gun regulation. But what must be remembered , sir, is that all of the founders, most especially Madison, were in favor of abiding by the Consititution. Now, granted, each founder had his own interpretation as to what the Constitution allowed and did not allow. This especially can be seen in the likes of the Federalists, and most especially in Alexander Hamilton, and even John Adams during his very own presidency (think of the Alien and Sedition Act). But, since you primarily use Madison, I shall stick with Madison for now. Madison was a strict interpreter of the Constitution's clauses. No matter how much he may have attached the Bill of Rights and certain pieces of its contents to placate the states, he would not have the federal government disobeying the Constitution's dictates, no matter what was in the Constitution. He would have the federal government stay within its current bounds. His dislike of and opposition to the Bank of the United States and the national funding of all state debts blatantly shows this. This means, I strongly believe, that Madison would not agree with you sir, that as long as the 2nd Amendment remains in the Consitutiton, that Congress has the authority to ban outright, guns in any portion of the United States, including DC. Nor would he agree to stating that Congress has the constitutional authority to regulate guns in an individual's private home or on his/her private property, excepting the aforementioned regulations of not allowing an individual with a gun to violate another's rights. In addition to these proofs, the very fact that Madison joined Jefferson, Monroe and others as a Repuglican/Democratic Republican and states rights-advocate disproves your claim, sir, which I believe is based off of faulty evidence. Historians will know this, sir, and I know it because I count myself as among their ranks, albiet I am an amateur and not a professional.

In addition, Madison indeed wanted a strong federal government in order to curb the excess of Democracy and state sovereignty, but he no way approved of the federal government overspilling its constitutional bounds, and it would be doing so if it attemped to enact and enforce an outright ban on guns, even in DC. Indeed, historians would know that the 1787 Constitution looked nothing like Madison's "Virginia Plan." He even said so himself. The Constitution was the work of many elected men, and not one; and these men elected specifically for the sole purpose of creating and writing the Constitution. The Bill of Rights was also the work of many men, in that Madison was not the creator of the Bill of Rights, but rather the compiler; he adopted many enumerated rights from the biils of rights from the state constitutions, which were created and written by other men. Since you suggest that Madison supposedly included the 2nd Amendment so as to placate the states and get them to ratify the Constitution, would you also say that because Madison also wanted the states to be represented proportionally in both the House and the Senate, that he would be in favor of Congresses enacting new laws allowing such? No, because the Constitution directly says that this cannot be done. Madison had to yield to the smaller states concerning the issue of representation in the Senate,, and thus placated them, in order to get the Constitution written and to keep the small states in the convention. So, in light of this additional factual information, your claim that Madison only included the 2nd Amendment so as to get the Constitution ratified is meaningless, I believe. It say nothing about whether Congress can or cannot regulate or ban guns outright, sir. It merely states what you think Madison's motives were in including the 2nd Amendment. It says nothing concerning the stubborn fact that the 2nd Amendment was indeed included, and that it states nothing concerning regulation of guns. I personally believe that Madison would not be in support of Congress banning guns outright, nor prohibiting individuals from owning guns and having them operational in their own homes, given the factual information about Madison mentioned above. Nor does the history of the entire Revolution condone such illegal and unconstitutional actions by teh Congress, sir. Remember Lexington and Concord. Remember battles won by the help of the militia; remember that if the members of the militia had not had private access to their guns, ammunition, and powder, then the outcome of the war would have looked very different, and the chances of the Americans very bleak. Also remember, sir, that as most oft he founders saw a standing army as dangerous to liberty and freedom, they saw the militia as the primary means of defense against enemies both foreign and domestic. The Constitution, in Article 1, Section 8 proves this, concerning the authority of Congress in relation to the militia. and because, as it states in the 2nd Amendment that a militia is required for defense against enemies both foreign and domestic, which includes a tyrannical and despotic government, all members of the militia, which includes all citizens, must be allowed unbridled access to acquisition and possession of their own private firearms/guns. Thus, I do not think that the provision of the information that Madison only included the 2nd Amendment merely to placate the states qualifies or proves, by its mere existence alone, that Madison was in favor of gun regulation. This one fact is but one among a large and often complex context. 



Also, you allude that the founders could not have known our day in age, our technology, and the role of guns. I must respectively disagree. Guns were dangerous then, in that era, just as they are today, and there were criminals then just as there are today who use/used guns to hurt or kill people. To say that founders could not have imagined our day and the technology we have is, I believe, with all due respect, a ludicrous claim, sir. Steam power and steam powered engines were being developed during the 1780's and 1790's. Indeed, Ever since weaponry, including guns, was invented, men have been trying to come up with new and improved versions that would increase accuracy, decrease the time required to fire such weaponry, and increase the amount of ammunition such weaponry could fire. Look at the rifle and the role it played in the Revolution, in terms of range and accuracy. Think of Daniel Morgan, sir. In addition, many of the founders were inventors themselves. They knew the world and its technology would continue to progress. They wanted it to. They helped it to do so. This claim that you make, that the founders could never have envisioned our modern day and the role guns play in it is, in my humble opinion, bogus and illogical. The bottom line , sir, that I'm attempting to get at, is that the Constitution has the 2nd Amendment, and Congress, and well as the judicial and executive branches, must abide by it. Justices cannot make up what does not exist in it already. They cannot add to it but by the Amendment process. This includes personal interpretations that have no solid evidence behind them. And, with all due respect to the office you hold, sir, as I have explained in this email, I do not believe your claim has significant historical proof enough to be considered as "original intent."

My belief, sir, is the same as Thomas Paine's concerning a constitution, expressed in his "The Rights of Man;" it is the Constitution that determines the actions and limits of the offices and officers it allows to exist, not the other way around. Also, the Constitution cannot and must not be bent, twisted, or warped so as to agree with laws made by Congress; rather, it is the laws of Congress, and the rulings of the Supreme Court, and every court below it that can and must be bent, twisted, warped, and altered so as to agree with the Constitution.

I also agree with Justice John Marshall when he said, in Marbury vs. Madison in 1803,

"It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument."

Thank you for your service, and may you have sufficient wisdom so as to come to the best judgments as you possibly can.

Sincerely,

A concerned citizen.



Further evidence that discredits Justice Breyer's unfounded assertion:


The following excerpt is taken from John Keane's "Tom Paine, A Political Life," found on pages 102-103.

"Paine set about clarifying his thoughts on whether violent means could legitimately be used to defend what, for a long time, he had cons
idered the highest earthly goal: human liberty. It was clear to him that those who take up the sword risk perishing by the sword. Yet it was equally clear that those who refuse the sword risk perishing on the cross. How was this dilemma to be resolved? Paine left no doubts: 'I am thus far a quaker, that I would gladly agree with all the world to lay aside the use of arms, and settle matters by negotiation; but unless the whole will, the matter ends, and I take up my musket and thank heaven he has put it in my power.'

The realist argument against Quaker pacifism- that might always triumphs over right unless right protects itself-had a ring of urgency about it. Yet as much as Paine approved the resort to arms, he made it clear in 'Thoughts on Defensive War' that violence was a difficult horse to ride. Violence could easily throw its rider, galloping away from its role as a means and becoming an untamed end in itself, living according to its own wild whims and desires. He drew from this the conclusion that it was fundamentally important to be clear about the ultimate purpose for which violence could be used. Liberty, he argued, was the only legitimate purpose violence could serve."
http://books.google.com/books?id=E4-I0O4n5jsC&printsec=frontcover&dq=tom+paine+a+political+life+by+john+keane&hl=en&ei=eDsNTYP5HIPSsAOX_PiUCg&sa=X&oi=book_result&ct=result&resnum=1&ved=0CCgQ6AEwAA#v=onepage&q&f=false

Thus, Judge Breyer, it is every man's natural right to life and liberty, and defense of that life and liberty by any means possible, including guns, sir. Therefore, every man and woman has the right to purchase, possess, and use guns in protection of those natural rights to life and liberty from any threat to them, be it an intruder bent on harming the individual or group, a tyrannous government, hunger (guns for the use of food and fuel), or whatever it may be. Therefore, no, the gov. doesn't have the right to regulate the possession of guns except from passing legislation that bans the use of guns for abridging other's natural rights.



Thomas Paine's "Thoughts on Defensive War."


http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle%3D343&layout=html#chapter_17017


And yet even further proof of the absurdity of his claim:


Thomas Jefferson and John Dickinson's "Declaration of the Causes and Necessity of Taking up Arms."


"A declaration by the representatives of the united colonies of North America, now met in Congress at Philadelphia, setting forth the causes and necessity of their taking up arms.

If it was possible for men, who exercise their reason to believe, that the divine Author of our existence intended a part of the human race to hold an absolute property in, and an unbounded power over others, marked out by his infinite goodness and wisdom, as the objects of a legal domination never rightfully resistible, however severe and oppressive, the inhabitants of these colonies might at least require from the parliament of Great-Britain some evidence, thatthis dreadful authority over them, has been granted to that body. But a reverance for our Creator, principles of humanity, and the dictates of common sense, must convince all those who reflect upon the subject, that government was instituted to promote the welfare of mankind, and ought to be administered for the attainment of that end. The legislature of Great-Britain, however, stimulated by an inordinate passion for a power not only unjustifiable, but which they know to be peculiarly reprobated by the very constitution of that kingdom, and desparate of success in any mode of contest, where regard should be had to truth, law, or right, have at length, deserting those, attempted to effect their cruel and impolitic purpose of enslaving these colonies by violence, and have thereby rendered it necessary for us to close with their last appeal from reason to arms. Yet, however blinded that assembly may be, by their intemperate rage for unlimited domination, so to sight justice and the opinion of mankind, we esteem ourselves bound by obligations of respect to the rest of the world, to make known the justice of our cause. Our forefathers, inhabitants of the island of Great-Britain, left their native land, to seek on these shores a residence for civil and religious freedom. At the expense of their blood, at the hazard of their fortunes, without the least charge to the country from which they removed, by unceasing labour, and an unconquerable spirit, they effected settlements in the distant and unhospitable wilds of America, then filled with numerous and warlike barbarians. -- Societies or governments, vested with perfect legislatures, were formed under charters from the crown, and an harmonious intercourse was established between the colonies and the kingdom from which they derived their origin. The mutual benefits of this union became in a short time so extraordinary, as to excite astonishment. It is universally confessed, that the amazing increase of the wealth, strength, and navigation of the realm, arose from this source; and the minister, who so wisely and successfully directed the measures of Great-Britain in the late war, publicly declared, that these colonies enabled her to triumph over her enemies. --Towards the conclusion of that war, it pleased our sovereign to make a change in his counsels. -- From that fatal movement, the affairs of the British empire began to fall into confusion, and gradually sliding from the summit of glorious prosperity, to which they had been advanced by the virtues and abilities of one man, are at length distracted by the convulsions, that now shake it to its deepest foundations. -- The new ministry finding the brave foes of Britain, though frequently defeated, yet still contending, took up the unfortunate idea of granting them a hasty peace, and then subduing her faithful friends.

These colonies were judged to be in such a state, as to present victories without bloodshed, and all the easy emoluments of statuteable plunder. -- The uninterrupted tenor of their peaceable and respectful behaviour from the beginning of colonization, their dutiful, zealous, and useful services during the war, though so recently and amply acknowledged in the most honourable manner by his majesty, by the late king, and by parliament, could not save them from the meditated innovations. -- Parliament was influenced to adopt the pernicious project, and assuming a new power over them, have in the course of eleven years, given such decisive specimens of the spirit and consequences attending this power, as to leave no doubt concerning the effects of acquiescence under it. They have undertaken to give and grant our money without our consent, though we have ever exercised an exclusive right to dispose of our own property; statutes have been passed for extending the jurisdiction of courts of admiralty and vice-admiralty beyond their ancient limits; for depriving us of the accustomed and inestimable privilege of trial by jury, in cases affecting both life and property; for suspending the legislature of one of the colonies; for interdicting all commerce to the capital of another; and for altering fundamentally the form of government established by charter, and secured by acts of its own legislature solemnly confirmed by the crown; for exempting the "murderers" of colonists from legal trial, and in effect, from punishment; for erecting in a neighbouring province, acquired by the joint arms of Great-Britain and America, a despotism dangerous to our very existence; and for quartering soldiers upon the colonists in time of profound peace. It has also been resolved in parliament, that colonists charged with committing certain offences, shall be transported to England to be tried. But why should we enumerate our injuries in detail? By one statute it is declared, that parliament can "of right make laws to bind us in all cases whatsoever." What is to defend us against so enormous, so unlimited a power? Not a single man of those who assume it, is chosen by us; or is subject to our control or influence; but, on the contrary, they are all of them exempt from the operation of such laws, and an American revenue, if not diverted from the ostensible purposes for which it is raised, would actually lighten their own burdens in proportion, as they increase ours. We saw the misery to which such despotism would reduce us. We for ten years incessantly and ineffectually besieged the throne as supplicants; we reasoned, we remonstrated with parliament, in the most mild and decent language.

Administration sensible that we should regard these oppressive measures as freemen ought to do, sent over fleets and armies to enforce them. The indignation of the Americans was roused, it is true; but it was the indignation of a virtuous, loyal, and affectionate people. A Congress of delegates from the United Colonies was assembled at Philadelphia, on the fifth day of last September. We resolved again to offer an humble and dutiful petition to the King, and also addressed our fellow-subjects of Great-Britain. We have pursued every temperate, every respectful measure; we have even proceeded to break off our commercial intercourse with our fellow-subjects, as the last peaceable admonition, that our attachment to no nation upon earth should supplant our attachment to liberty. -- This, we flattered ourselves, was the ultimate step of the controversy: but subsequent events have shewn, how vain was this hope of finding moderation in our enemies.

Several threatening expressions against the colonies were inserted in his majesty's speech; our petition, tho' we were told it was a decent one, and that his majesty had been pleased to receive it graciously, and to promise laying it before his parliament, was huddled into both houses among a bundle of American papers, and there neglected. The lords and commons in their address, in the month of February, said, that "a rebellion at that time actually existed within the province of Massachusetts-Bay; and that those concerned with it, had been countenanced and encouraged by unlawful combinations and engagements, entered into by his majesty's subjects in several of the other colonies; and therefore they besought his majesty, that he would take the most effectual measures to inforce due obediance to the laws and authority of the supreme legislature." -- Soon after, the commercial intercourse of whole colonies, with foreign countries, and with each other, was cut off by an act of parliament; by another several of them were intirely prohibited from the fisheries in the seas near their coasts, on which they always depended for their sustenance; and large reinforcements of ships and troops were immediately sent over to general Gage.

Fruitless were all the entreaties, arguments, and eloquence of an illustrious band of the most distinguished peers, and commoners, who nobly and strenuously asserted the justice of our cause, to stay, or even to mitigate the heedless fury with which these accumulated and unexampled outrages were hurried on. -- equally fruitless was the interference of the city of London, of Bristol, and many other respectable towns in our favor. Parliament adopted an insidious manoeuvre calculated to divide us, to establish a perpetual auction of taxations where colony should bid against colony, all of them uninformed what ransom would redeem their lives; and thus to extort from us, at the point of the bayonet, the unknown sums that should be sufficient to gratify, if possible to gratify, ministerial rapacity, with the miserable indulgence left to us of raising, in our own mode, the prescribed tribute. What terms more rigid and humiliating could have been dictated by remorseless victors to conquered enemies? in our circumstances to accept them, would be to deserve them.

Soon after the intelligence of these proceedings arrived on this continent, general Gage, who in the course of the last year had taken possession of the town of Boston, in the province of Massachusetts-Bay, and still occupied it a garrison, on the 19th day of April, sent out from that place a large detachment of his army, who made an unprovoked assault on the inhabitants of the said province, at the town of Lexington, as appears by the affidavits of a great number of persons, some of whom were officers and soldiers of that detachment, murdered eight of the inhabitants, and wounded many others. From thence the troops proceeded in warlike array to the town of Concord, where they set upon another party of the inhabitants of the same province, killing several and wounding more, until compelled to retreat by the country people suddenly assembled to repel this cruel aggression. Hostilities, thus commenced by the British troops, have been since prosecuted by them without regard to faith or reputation. -- The inhabitants of Boston being confined within that town by the general their governor, and having, in order to procure their dismission, entered into a treaty with him, it was stipulated that the said inhabitants having deposited their arms with their own magistrate, should have liberty to depart, taking with them their other effects. They accordingly delivered up their arms, but in open violation of honour, in defiance of the obligation of treaties, which even savage nations esteemed sacred, the governor ordered the arms deposited as aforesaid, that they might be preserved for their owners, to be seized by a body of soldiers; detained the greatest part of the inhabitants in the town, and compelled the few who were permitted to retire, to leave their most valuable effects behind.

By this perfidy wives are separated from their husbands, children from their parents, the aged and the sick from their relations and friends, who wish to attend and comfort them; and those who have been used to live in plenty and even elegance, are reduced to deplorable distress.

The general, further emulating his ministerial masters, by a proclamation bearing date on the 12th day of June, after venting the grossest falsehoods and calumnies against the good people of these colonies, proceeds to "declare them all, either by name or description, to be rebels and traitors, to supercede the course of the common law, and instead thereof to publish and order the use and exercise of the law martial." -- His troops have butchered our countrymen, have wantonly burnt Charlestown,besides a considerable number of houses in other places; our ships and vessels are seized; the necessary supplies of provisions are intercepted, and he is exerting his utmost power to spread destruction and devastation around him.

We have rceived certain intelligence, that general Carleton, the governor of Canada, is instigating the people of that province and the Indians to fall upon us; and we have but too much reason to apprehend, that schemes have been formed to excite domestic enemies against us. In brief, a part of these colonies now feel, and all of them are sure of feeling, as far as the vengeance of administration can inflict them, the complicated calamities of fire, sword and famine. We are reduced to the alternative of chusing an unconditional submission to the tyranny of irritated ministers, or resistance by force. -- The latter is our choice. -- We have counted the cost of this contest, and find nothing so dreadful as voluntary slavery. -- Honour, justice, and humanity, forbid us tamely to surrender that freedom which we received from our gallant ancestors, and which our innocent posterity have a right to receive from us. We cannot endure the infamy and guilt of resigning succeeding generations to that wretchedness which inevitably awaits them, if we basely entail hereditary bondage upon them.

Our cause is just. Our union is perfect. Our internal resources are great, and, if necessary, foreign assistance is undoubtedly attainable. -- We gratefully acknowledge, as signal instances of the Divine favour towards us, that his Providence would not permit us to be called into this severe controversy, until we were grown up to our present strength, had been previously exercised in warlike operation, and possessed of the means of defending ourselves. With hearts fortified with these animating reflections, we most solemnly, before God and the world, declare, that, exerting the utmost energy of those powers, which our beneficent Creator hath graciously bestowed upon us, the arms we have been compelled by our enemies to assume, we will, in defiance of every hazard, with unabating firmness and perseverence, employ for the preservation of our liberties; being with one mind resolved to die freemen rather thanto live slaves.

Lest this declaration should disquiet the minds of our friends and fellow-subjects in any part of the empire, we assure them that we mean not to dissolve that union which has so long and so happily subsisted between us, and which we sincerely wish to see restored. -- Necessity has not yet driven us into that desperate measure, or induced us to excite any other nation to war against them. -- We have not raised armies with ambitious designs of separating from Great-Britain, and establishing independent states. We fight not for glory or for conquest. We exhibit to mankind the remarkable spectacle of a people attacked by unprovoked enemies, without any imputation or even suspicion of offence. They boast of their privileges and civilization, and yet proffer no milder conditions than servitude or death.

In our own native land, in defence of the freedom that is our birthright, and which we ever enjoyed till the late violation of it -- for the protection of our property, acquired solely by the honest industry of our fore-fathers and ourselves, against violence actually offered, we have taken up arms. We shall lay them down when hostilities shall cease on the part of the aggressors, and all danger of their being renewed shall be removed, and not before.

With an humble confidence in the mercies of the supreme and impartial Judge and Ruler of the Universe, we most devoutly implore his divine goodness to protect us happily through this great conflict, to dispose our adversaries to reconciliation on reasonable terms, and thereby to relieve the empire from the calamities of civil war."


http://www.nationalcenter.org/1775DeclarationofArms.html


And yet further proof of the ludicrousness of Justice Breyer's claim:
Continental Congress's "Reply to the Ministerial Proclamations..." in 1775, otherwise known as "Response of the Continental Congress to the Proclamation of Rebellion by King George III:"


"We condemn, and with arms in our hands,--a resource which Freemen will never part with,--we oppose the claim and exercise of unconstitutional powers, to which neither the Crown nor Parliament were ever entitled."


http://en.wikisource.org/wiki/Response_of_the_Continental_Congress_to_the_Proclamation_of_Rebellion_by_King_George_III

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