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How The Courts Are Using The Second Amendment Against Us

by Jeff Booth

    "We are under a Constitution, but the Constitution is what the judges say it is."

                Chief Justice Charles Evans Hughes (1930-1941)

The Declaration of Independence and the Second Amendment share something in common; they both have preambles. The Second Amendment is the only amendment enumerated in the Bill of Rights that contains a stated purpose, "A well regulated Militia, being necessary to the security of a free State..." This is a preamble, an introduction, a preface, a whereas,--not a therefore.

"What is special about the Amendment is the inclusion of an opening clause--a preamble, if you will...No other clause is a part of any other Amendment." Lawrence Tribe, American Constitutional Law

"Many gun control advocates argue that the unique 13-word preamble stipulates that amendments purpose in a way that severely narrows constitutional protection of gun ownership." George F. Will, America’s Crisis of Gunfire. Washington Post, 3/21/91.

"No other amendment has its own preface."  William & Mary Rev, Guns, Words, and Constitutional Interpretation.

"The amendment is unique among the guarantees of the Bill of Rights, because its purpose is clearly expressed in the text." Erwin Griswold, Phantom Second Amendment ‘Rights.’ Washington Post 11/4/94.

"The states rights reading of the Second Amendment puts great weight on the word "militia" but this word appears only in the Amendment’s subordinate clause." Yale Law School Prof., Akil Reed Amar, Bill of Rights as a Constitution, Yale Law Journal 1131, 1166 (1991).

"It should be noted that the Amendment has two parts: (1) an observation, or perhaps a cautionary note (A well-regulated Militia, being necessary to the security of a free state) and (2) a command or legal requirement (the right of the people to keep and bear Arms, shall not be infringed). The language of the first clause appears to impose no legal requirement or restriction on the federal government, only the second clause indicates a right that the government cannot infringe." To keep and Bear Arms: The Origin of an Anglo-American Right, by Professor Joyce Lee Malcolm.

More often than not, court decisions declaring that the individual right to own firearms is not guaranteed by the Second Amendment are based on the preamble, not the Right itself, which reads, "...the right of the people to keep and bear Arms, shall not be infringed." We don’t have statistics in front of us, but it’s a safe bet that virtually all decisions handed down by the courts restraining individual firearms ownership are based on the preamble, i.e., the introduction--and introductions are not law--introductions are not rights.

Cases in point: "...the claimant of Second Amendment protection must prove that his or her possession of the weapon was reasonably related to a  "well regulated militia." [Preamble] Considering this history, we cannot conclude that the Second Amendment protects the individual possession of military weapons. [Preamble] The rule emerging from Miller is that, absent a showing that the possession of certain weapons has "some reasonable relationship to the preservation or efficiency of a well regulated militia," [Preamble] the Second Amendment does not guarantee the right to possess the weapon." [based on the preamble]. United States v. Hale. 978 F. 2d 1016. 8th. Cir. 1992.

"Thus, the clauses of the amendment are bound together. The right of an individual is dependent upon a role in rendering the militia effective." [Preamble] State v. Skinner, 189 Neb. 457, 203 N.W.2d 161 (1973) Here the court maintains that the Preamble and Right are inseparable and of equal value, which is total nonsense, and, as we’ll prove, runs contrary to the rule of law. Have you ever heard of someone being indicted, convicted, and sent to prison for violating the preamble of a statute but not the statute itself? In some cases, that's precisely what the courts are doing with gun owners in regard to the Second Amendment.

"Since the Second Amendment right to keep and bear arms applies to the right of the state to maintain a militia, [preamble] and not to the individual’s right to bear arms, [court places the preamble above the right] there can be no serious claim to any express constitutional right of an individual to possess a firearm." [Based on the preamble] Steven vs. United States, 440 F. 2d. 114, 149 U.S. Court of Appeals, 6th Circuit.

And, in the well-known United States v. Miller, the court said, "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 of efficiency of a well regulated militia [preamble], we cannot say that the [preamble of 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 [preamble] or that its use could contribute to the common defense." [Preamble.]

Let’s say Miller had been caught with a Thompson submachine gun rather than a sawed-off shotgun, if that were the case the Supreme Court could not have arrived at this decision. A submachine gun lends great value to the “…efficiency of a well regulated militia…” and is very much “…a part of the ordinary military equipment…” and would greatly “…contribute to the common defense.” If Miller had been caught with a submachine gun and the Supreme Court considered it a worthwhile weapon for militia/military purposes, which it is, it would've rendered the National Firearms Act of 1934 unconstitutional and Miller could've walked out of court with a Thompson tucked under his arm! Liberals would’ve loved that! And, while we are on the subject of Miller, were members of the Supreme Court qualified to make a judgment as to whether or not a saw-off shotgun was a useful military weapon?

Not according to Mike Brown who wrote  Who Repealed the Second Amendment? And By What Authority? "Of the eight Supreme Court justices who voted for this, six had absolutely no military experience. The other two, Hugo L. Black and Stanley F. Reed, received the rank of captain of artillery (1917) and first lieutenant (1918) respectively without ever seeing combat or leaving American soil. James Clark McReynolds, who authored the opinion in Miller, had no military experience whatsoever. The then Chief Justice, Charles Evans Hughes, was apparently a pacifist, having been the chairman of the International Conference on Limitations of Armaments, elected to the League of Nations (the first try for a "UN") and who-knows-what else."

Former American Bar Association Chairman, Edward E. Kallgren, speaking before the House Subcommittee on Crime back in 1993, said, “The scope of the people’s right to keep and bear arms is qualified by the introductory phrase of the Second Amendment regarding the necessity of a well regulated militia for the security of a free state…” What rule of law or interpretation is Kallgren using to support this statement? Justice Joseph Story said that a preamble “…can never be the source of any implied power.” You wouldn't know that by reading these quotes. Gun-grabbers have made it all-powerful. According to Kallgren, the preamble governs your right to own a firearm, not the right itself.

Unfortunately, this interpretation is virtually universal throughout our judicial system and has bastardized the Second Amendment. As Robert Dowlut, DC attorney and counsel to the NRA, put it, “The command that the people have a right to keep and bear arms is simply ignored. Courts simply look at the preamble or precatory language of the Second Amendment, ignore the rest of the language, and interpret it to guarantee the right of the state to have a military force.”

The word “precatory,” according to ‘Dictionary of Legal Terms’ by Rutgers law professor Steven Gifis, means “…expresses a wish to benefit another but does not impose an enforceable obligation upon any party to carry out this wish.” Or, as another legal dictionary put it: “Expressing a wish but not creating any legal obligation or duty.” It would be more accurate to refer to the “Militia Clause” as the “Precatory Clause” because, legally speaking, that’s precisely what it is.

This means you have a right to own firearms regardless if you’re a member of a militia or not and the courts have no legal authority to say otherwise. They're enforcing the unenforceable. This may sound blasphemous to some, but a ‘No Parking’ sign on any street in America has more legal authority than the Militia Clause because a no parking sign does “impose an enforceable obligation…” whereas a preamble does not. The courts have turned the Preamble into the  Achilles' Heel” for the Second Amendment.

If militia service and firearms ownership are inseparable, as the courts have repeatedly declared, what legal right do women have to own a firearm? State and federal law prohibits women from militia service. The Preamble is blatantly sexist by excluding women. In U.S. v. Hale mentioned above, the court cited… "...the claimant of Second Amendment protection must prove that his or her possession of the weapon was reasonably related to a "well regulated militia." A woman cannot own a firearm that is “reasonably related” to a Militia because they are not “related” to the Militia. Circuit judge John R. Gibson, who decided the Hale case, was totally oblivious to this fact. See the problems judges create for themselves when they pervert the law?

After a man passes forty-five years-of-age he is no longer eligible for militia service (10 USC 311) and the Preamble no longer applies to him. The fact that men over age forty-five, and women of any age, own firearms while having no connection whatsoever with the Preamble proves that there is a serious flaw in the courts way of thinking. According to the current mind-set of our judiciary, if taken to the extreme, only males ages seventeen through forty-five can legally own firearms, and, if the opinions of our judiciary are to be taken seriously, a man loses his right to keep and bear arms on his forty-sixth birthday and women never had the right to begin with. I would publicly challenge any politician or federal judge to hold a press conference and declare that all men over the age of forty-five, and women of any age, cannot legally own firearms in the United States. In our “politically correct” times? No way.

Chief Justice Warren Burger, in an interview that appeared in Parade magazine back in January, 1990, said that the Second Amendment was "...one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I've ever seen in my life time. The real purpose of the Second Amendment was to ensure that state armies--the militias [preamble] would be maintained for the defense of the state. The very language of the Second Amendment [referring to the preamble] refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires."

Mr. Burger is wrong. The greatest fraud, (and I repeat the word ‘fraud,’) on the American public is being perpetrated by our judiciary in their use of the preamble, which is not a right, not a law, not a code, not a statute, when deciding a Second Amendment issue. And Mr. Burger’s statement “…any kind of weapon he or she desires…” again shows his judicial ignorance: women have no connection to Militia service and the preamble does not pertain to them.

There is only one legitimate reason for the courts to refer to a preamble when interpreting a law or right, and that’s when the law or right in question is vague and the preamble is needed for clarification. However, a preamble is always secondary and can never supplant the right or law in question. A preamble is, "A preface, an introduction or explanation of what is to follow: That clause at the head of acts of congress or other legislatures which explains the reasons why the act is made. Preambles are also frequently put in contracts, to explain the motives of the contracting parties. A preamble is said to be the key of a statute, to open the minds of the makers as to the mischief's which they are to be remedied, and the objects which are to be accomplished by the provisions of the statutes. It cannot amount, by implication, to enlarge [or "infringe"] what is expressly given." The Lectric Law Library's Lexicon

Cases in point: "The body of the act may even be restrained by the preamble, when no inconsistency or contradiction results, ...where the intention of the Legislature is clearly expressed in the [body], the preamble shall not restrain it, although it be of much narrower import."  A Treatise on the Rules Which Govern the Interpretation of Statutory and Constitutional Law, Theodore Sedgwick, pg. 55. (1857.)

Our judicial system has handed down "inconsistent" or "contradictory results" on a regular basis concerning the Second Amendment because of their inclusion of the preamble in their decisions. Many times allowing it to take preeminence over the right itself. Gun-grabbers totally rely on the preamble to "restrain" the Second Amendment at every turn. If the preamble read; "In order to ensure a fresh supply of venison, the right of the people to keep and bear arms shall not be infringed," the courts would argue that supermarkets, with modern-day refrigeration, always have a fresh supply of meat on hand and restrict firearms ownership on that basis. It’s the courts illegal use of the preamble that’s causing all the grief for gun owners because it’s difficult, if not impossible, to misinterpret "...the right of the people to keep and bear arms shall not be infringed." That’s why our judiciary eschew it and constantly addresses the preamble. How can you transgress an introduction when it carries no weight of law behind it?

"As showing the inducement to the acts, [the preamble] may have a decisive weight in a doubtful case. But where the body of the statute is distinct, it will prevail over a more restrictive preamble." Commentaries on Written Laws and Their Interpretation. Joel P. Bishop, pg. 48, (1882).

"In the laws of England, in doubtful cases recourse may be had to the preamble; but where the terms of the enacting clause are clear and positive, the preamble cannot be resorted to." Fortunatus Dwarris, A General Treatise of Statutes, pg. 504, 2d ed, (1848.)

What’s vague about "...the right of the people to keep and bear arms, shall not be infringed?" This statement is unequivocal and needs no further clarification. Therefore, there’s absolutely no legal justification for the courts to refer to the preamble when deciding a case! And it’s blatantly illegal for the courts to place an introduction to a right over the right it self. It’s a mystery as to how the courts have perpetrated this fraud for so many years. Laws covering the militia can be found in the Militia Act of May 8, 1792 and in 10 U.S.C. 311, and in state constitutions. But as it appears in the Second Amendment, it’s just an introduction and carries no legal authority except for clarification purposes only.

Justice Joseph Story wrote in Rules of Interpretation, "Where the words are plain and clear, and the sense distinct and perfect arising on them, there is generally no necessity to have recourse to other means of interpretation. It is only when there is some ambiguity or doubt arising from other sources that interpretation has its proper office." Story also said that a preamble  "...is properly resorted to, where doubts or ambiguities arise upon the words of the enacted part, [but] ...never can be resorted to, to enlarge the powers confided to the general government. It can never amount, by implication, to an enlargement of any power expressly given. It can never be the source of any implied power..." Try telling that to our courts.

The "collective right" argument is another favorite of the gun-grabbers. This phrase was created in a Kansas Supreme Court decision back in 1905 (City of Salina v. Blakesly 72 Kan. 230, 83 p. 619). Corrupt judges, prosecutors and legislators have been tripping over themselves to jump on that band wagon ever since. Again, the Kansas decision was based on the preamble. And, it should be noted, this same State Supreme Court unanimously overturned this decision in City of Junction City v. Meuis 276 Kan. 526, 601 pnd 1145 (1979), ruling that the right to keep arms is an individual right.   As attorney Anthony J. Dennis put it: “This view of the Second Amendment, called the “state’s rights,” or “collective right” view, has no basis in law or support in history. It is essentially a twentieth century construct.” Constructed in 1905 to be exact.

Any lawyer who is defending a Second Amendment issue should make it explicitly clear to the court that any reference to the preamble of the Second Amendment is unnecessary based on the clear language cited in the right itself. Explain the rules of interpretation quoted earlier (find as many quotes as you can) and force the courts to prove that there's something ambiguous in the wording of the Second Amendment that requires reference to the preamble for clarification.

He should show that a preamble is just that--a preamble, an introduction, and a firearms issue cannot be determined by a preamble because it’s not the law! This will limit the courts (if successful) and if any judge or prosecutor claims that he doesn’t understand the meaning of "...the right of the people to keep and bear arms shall not be infringed" will prove himself an idiot. Explain to the court that judicial giants of the past, men of renown, revered for their judicial excellence of mind would never resort to a preamble--that’s for judicial Homer Simpsons’ --someone who has a poor command of the Queen’s English. Set the stage to make the judge or prosecutor look like a complete ass if they utter so much as a word in reference to the preamble. If they do--they are. And any court that references the preamble when handing down a decision restricting firearms ownership should be grounds for a mistrial.

In closing it should be mentioned that if the courts used preambles in other areas of law when deciding a case in the same manner as they have against the Second Amendment the judge would be kicked off the bench--it simply wouldn't be tolerated. And gun owners in America shouldn't tolerate it either

As Chief Justice Charles Evans Hughes quoted above said, "We are under a Constitution, but the Constitution is what the judges say it is." Translation: We’re living under a judicial government disguised as a constitutional government.   

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