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Tuesday, February 25, 2014

You Got it All Backwards

We do so have state militias, although now they are called "The National Guard". Since the beginning, there has been  provision for the militias to be called into national service when needed (Article II, Section 2). When they are not so engaged, they are under the control of their own state governor. It has only been the last decade or so that the National Guard has been extensively deployed overseas. Before that they stayed in their home states most of the time.

Your interpretation of the wording in the Second Amendment is unique. It's not "if", it's "since" a militia is necessary. Look at it again, paying attention to the punctuation, and I think you'll see what I mean.

The power of the Supreme Court to declare a law unconstitutional may be inferred in Article III, Section 2, Paragraph 2, although it doesn't say that exactly. I believe it was John Marshall, one of the first Chief Justices, who established that precedent. Congress has the power to limit the authority of the courts (same reference) but, for some reason, almost never does. All congressmen and the president take an oath to "preserve, protect, and defend the Constitution" (Article II, Section 1, Paragraph 10) so, theoretically, any one of them could declare a law to be unconstitutional. The potential conflicts that would arise from all those people trying to exercising that authority at once may be one reason why the Supremes ended up with the job. Anyway, the Supremes don't rule on the constitutionality of every law that is passed. Somebody has to take legal action to bring it up for their consideration. If nobody ever challenges the constitutionality of a law, the Supremes will never get to rule on it, and the law, having never been proven otherwise, will be considered to be constitutional. So it's constitutional until they say it isn't, not the other way around.

The case to which I referred was in the news a few years ago. This guy in New York City applied for a handgun permit, which he said he needed for his job as a private security guard. The city denied his request, basically saying that nobody in New York but the police should be allowed to carry a handgun. The Supremes ruled that the city could regulate firearms, but that they couldn't issue a blanket prohibition of their ownership, citing the Second Amendment. I believe it was back in the 1930s that a previous Supreme Court had ruled that the Second Amendment applied only to state militias and had nothing to do with private gun ownership. This latest ruling effectively reversed that position.

Okay, that whole thing about the yeomen was my own creative interpretation of the historical right to bear arms. Nevertheless, at the time the constitution was written, the right to private gun ownership had never been challenged in the U.S.,either under the Articles of Confederation or during the British colonial period. I don't think it's too much of a stretch, then, to categorize it as a traditional right that was "retained by the people" as described in the Ninth Amendment.

I'm pretty sure that Thomas Jefferson said that the U.S. should be a nation of yeomen. Truth be known, I'm not so sure about the rest of them. A European style class system was never encoded in U.S. law, although many Americans seem to voluntarily divide themselves into vaguely defined socio-economic classes. I figure that, if other people can arbitrarily decide what class they belong to, then so can I, and I decided a long time ago that I wanted to be a yeoman when I grew up.

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